In the 21st century world of employee relations, most corporate cultures and mission statements include a tenet regarding employee engagement. Engaged employees are believed to be more productive and less likely to leave for greener pastures.

A key driver for being an engaged employee is the belief that your opinion matters and can contribute to the overall success of the business. Engaged employees typically are encouraged to provide feedback about their jobs, both good and bad, and then brainstorm for solutions.

Some employers may be tempted to create formalized, structured processes for such feedback. They may give them names like “Employee Involvement Committee” or “Employee-Management Action Committee.”

If you are among these employers, the recent U.S. Court of Appeals decision in T-Mobile v. National Labor Relations Board is a cautionary tale.

But understanding why first requires a quick trip on the Constangy wayback machine and an understanding of a little-known provision in federal labor law.

A short lesson in American history

In the 1930s the United States was in the throes of the Great Depression. In 1933 and 1934, a tidal wave of labor strikes rolled across the country. Factories were taken over by workers. Violent confrontations erupted between workers, the police, and private security guards.

As part of President Franklin D. Roosevelt’s New Deal, which was aimed at pulling the country out of its economic malaise and ending this industrial chaos, Congress passed the National Labor Relations Act. The cornerstone of the Act was a guarantee for employees to “form, join, or assist labor organizations” and to “bargain collectively through representatives of their own choosing.” (Don’t shoot the messenger. I wasn’t even a twinkle in my Dad’s eye.)

Consistent with the right of employees to bargain through “representatives of their choosing,” the NLRA prohibited employers from dominating a labor organization. The Act defined “labor organization” as any employee group that exists, at least in part, to deal with employers about wages, hours, and working conditions.

At that time, “engagement” meant you were getting married, and the concept of employee engagement was a world war and many decades away.

Back to the present

In 2015 T-Mobile established something called its T-Voice program. According to its charter, written by T-Mobile, the program’s mission was to enhance the experiences of customers and employees by identifying, discussing, and solving things called “pain points.”

(Note to self: Unions have charters. Does an internal employee complaint procedure really need a charter?)

Customer “pain points” were defined to include things that might lead to customer complaints and indirectly affect employees’ job duties. Employee pain points included anything that directly affected the employees, like work schedules and bonus programs.

(Hmmm. That sounds a wee bit like a grievance procedure.)

T-Mobile selected employees to be Frontline T-Voice Representatives. Their duties included collecting pain points from employees, discussing resolution with management, and then reporting the results to the affected employees. T-Mobile paid them for performing these duties.

(Isn’t that what a union steward does, except without the pay?)

Sometimes T-Mobile formally announced its solutions to pain points. When the company responded to one pain point by providing certain employees with two computer monitors, it announced that it had done so because of a complaint/suggestion submitted through the T-Voice program.

Union is not a fan of T-Voice

The Communication Workers of America had been trying to organize T-Mobile’s employees since 2009, apparently without success. In 2016, the CWA filed unfair labor practice charges against T-Mobile. The charges alleged that the T-Voice program was a company-dominated labor organization, in violation of the NLRA.

The dispute had a checkered history due to the swinging of the political pendulum during 2016-2023.

During the administration of President Trump, when the NLRB had three Republican and two Democratic appointees, the case was decided in favor of T-Mobile.

The CWA appealed, and the case was remanded back to the NLRB. By then the NLRB had been reconstituted by President Biden to include three Democratic and two Republican appointees. Wait for it – the “Biden Board” ruled in favor of the CWA.

I won’t make your eyes roll back in your head by explaining the shifting legal rationales for these different outcomes. Let’s just go with “ain’t politics grand.”

Court has the final word: Bye-bye, T-Voice.

Earlier this month, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion enforcing the NLRB’s order and directing that the T-Voice program be scrapped.

As explained by the court, among other things, the NLRA (1) makes it unlawful for an employer to dominate or contribute financial or other support to a labor organization, and (2) defines a “labor organization” as “any organization of any kind … 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.”’

That’s an all-encompassing definition, and you can see it isn’t in T-Mobile’s favor.

In its arguments to the D. C. Circuit, T-Mobile did not dispute that it “dominated” the T-Voice program. Given that T-Mobile created the program, wrote its charter, appointed its members, and paid its representatives, it’s hard to imagine a straight-faced argument to the contrary.

Instead, T-Mobile argued that T-Voice was not an organization “that dealt with an employer” because its members made individual proposals rather than proposals to be advanced collectively on behalf of a group of employees.

Considering the breadth and scope of the definition for a “labor organization,” and the underlying purposes of the NLRA, the court had little trouble dispatching those arguments. In agreement with the Board, the court held that even if the proposals made by T-Voice representatives were not adopted and advanced on behalf of a collective of employees (as in a vote by a union’s membership to reject a contract) they were made in a representative capacity on behalf of other employees.

Because the proposals made by T-Voice included matters relating to wages, hours, and working conditions, and were given real consideration by T-Mobile management, the court concluded that the Board was within its powers to consider T-Voice a labor organization that was dominated by T-Mobile.

Employee engagement is not unlawful

Provided an employer does not solicit grievances in an effort to interfere with union activity, there is nothing wrong with empowering employees to make suggestions about their jobs. Nor is there anything wrong with listening to and implementing suggestions that are beneficial to the employees and the company.

But creating a formalized structure similar to that of the T-Voice program could put you on the wrong side of a little-known section of a law passed a long time ago, in a world far from the 21st century concepts of corporate cultures, mission statements and promoting employee engagement.

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