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Recent NLRB Decision has Employers Evaluating Internal Employee Feedback Programs

On November 18, 2022, the National Labor Relations Board (NLRB) issued a supplemental decision and order reversing a previous decision in the same case after it was remanded back to the NLRB from the D.C. Circuit. The case, T-Mobile USA and Communications Workers of America, AFL-CIO, deals with whether T-Mobile’s “T-Voice” program implemented for its call center employees qualifies as a labor organization under the National Labor Relations Act (NLRA). The “T-Voice” program was implemented in 2015 and challenged by the Communications Workers Union (CWU) in 2016. The CWU has been attempting to organize the Company’s call center employees since 2009.

The “T-Voice” program consisted of T-Voice representatives whose primary duties were to collect pain points, employee complaints about workplace issues, and enter them into a data base so that the complaints could be reviewed and addressed by management. These pain points not only included complaints about customer interactions, but also complaints about the terms and conditions of employment such as paid time off and charging stations in employee break rooms, among other things.

The CWU filed an unfair labor practice charge alleging that T-Mobile was attempting to block its employees from choosing a representative of their own choice by creating, assisting, and dominating a labor organization as defined by the NLRA. Section 2(5) of the NLRA defines a labor organization as “any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” The Company and dissenting Board Member John Ring took the position that its “T-Voice” program was a lawful employee feedback program, not a labor organization.

Ultimately, the Board’s majority found that the “T-Voice” program constituted a statutory labor organization as one of its purposes was to operate as a “bilateral mechanism” to “deal with” employees concerning conditions of work. This “bilateral mechanism” is distinguishable from a unilateral mechanism, such as a suggestion box or an open-door policy, that does not infringe on employees’ rights under the NLRA. Thus, this case illustrates the importance of employers understanding where the line for a lawful employee feedback program is. This is especially true given the increase in union activity over the past two years.

Given the aggressive agenda the NLRB GC and the pro union makeup of the current Board, employers should consider revisiting internal employee feedback programs for compliance with federal law. If you have questions concerning this decision, please feel free to contact one of our labor attorneys by calling (501) 371-9999.

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