Today’s News & Commentary — October 1, 2019


Published October 1st, 2019 - 10.01.193


Yesterday, the National Labor Relations Board (NLRB) determined that a feedback solicitation program at T-Mobile is not a “labor organization” within the meaning of Section 2(5) of the National Labor Relations Act (NLRA). In 2015, T-Mobile created a program called “T-Voice,” through which employees could submit “pain points” – a catch-all term for work-related issues. As part of the program, T-Mobile selected a rotating group of customer service representatives at participating call centers to work as “T-Voice representatives” for several hours a week. These representatives would collect “pain points” from other T-Mobile employees and input them into a database that would be shared with management. Managers would evaluate the responses and submit their own replies into the database, which would then be shared with the reporting employees.

The Board concluded that the General Counsel had failed to show that T-Voice engaged in “dealing with” management, and thus failed to prove that the program was a “labor organization” under the Act. The Board likened T-Voice to a “suggestion box.” T-Voice representatives passed along employee “pain points” mostly as-is and only screened out those complaints that were duplicative. Even assuming that all of the complaints addressed statutory subjects, the lack of any “bilateral mechanism” through which T-Voice engaged with management proved fatal to the unfair labor practice charge. The Board so found despite reports that the program had brought about improved working conditions at several call centers. In so ruling, the Board reversed the decision of the Administrative Law Judge below. As noted by Bloomberg Law, the ruling is a defeat for the Communication Workers of America, who brought the unfair labor charge in 2016 and have been trying to organize at T-Mobile call centers for a decade.

The Board released a handful of other unanimous decisions yesterday. One of those decisions was on remand from the D.C. Circuit. The remand concerned an earlier 2015 Board decision on the legality of a wildcat strike by warehouse employees of Coca-Cola Puerto Rico Bottlers. In 2008, amid negotiations for a successor collective-bargaining agreement, the warehouse employees’ union voted to authorize a strike – however, the union never conducted that authorized strike. Instead, following the discharge of several of the warehouse employees, the workers conducted their own strike, without the union’s participation. The union told the company via letter that they had not authorized the strike, a message which the company relayed to the striking workers, most of whom continued striking. The Board had previously found that the strike constituted protected activity, reasoning that the workers were merely making good on a previous union threat. The D.C. Circuit remanded the case back to the Board for further explanation, highlighting the previous Board’s failure to account for or explain the significance of the union’s letter to the company. Yesterday, the Board reversed its earlier decision and concluded that the strike undermined the union’s exclusive representative function – the workers should have registered their union’s disapproval of the work stoppage, in spite of the fact that that message was relayed by the company.

In other news, as of this writing the United Auto Workers (UAW) continue to strike against General Motors. As Owen noted last week, last Friday was the first day that some workers would miss a paycheck. This week, striking union members began to receive “strike pay” – payments of around $250 per week that come from the UAW’s “strike fund.” That number falls well short of the starting wage for hourly assembly workers, which can range from $640 to $1,200 per week. Though the financial pressure is mounting on both sides, some workers report that they have been saving for months to prepare for the strike. Others say that, despite worries about how to pay their upcoming bills, they plan to endure and don’t want to settle.

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