[00:00:00] Speaker 03: Case number 22-1310 et al. [00:00:03] Speaker 03: T-Mobile USA, Inc. [00:00:04] Speaker 03: Petitioner vs. National Labor Relations Board. [00:00:07] Speaker 03: Mr. Harris for the petitioner, Mr. Lohr for the respondent. [00:00:12] Speaker 05: Good morning, counsel. [00:00:13] Speaker 05: Mr. Harris, please proceed when you're ready. [00:00:14] Speaker 06: Thank you, your honor. [00:00:16] Speaker 06: May it please the court, my name is Mark Harris, and I represent T-Mobile. [00:00:20] Speaker 06: This case concerns the definition of a labor organization under Section 2.5 of the NLRA. [00:00:26] Speaker 06: The NLRB initially held that since T-Voice as a whole did not adopt or endorse any of the proposals at issue here, they couldn't be group proposals. [00:00:36] Speaker 06: And because they weren't group proposals, T-Voice was not a labor organization. [00:00:41] Speaker 06: On remand, the board changed its position and held that whenever a key voice representative makes a proposal on a representative basis, that somehow automatically becomes a group proposal, whether or not key voice plays any role in the process. [00:00:58] Speaker 06: The board's decision is incorrect for a number of reasons. [00:01:02] Speaker 06: First, it violated the board's long-established precedent about the meaning of group proposals. [00:01:09] Speaker 06: Second, the board's finding of a pattern and practice of dealing was wrong and lacked substantial evidence. [00:01:16] Speaker 06: And third, the disestablishment remedy is arbitrary and capricious. [00:01:20] Speaker 05: Can I start with the first one? [00:01:21] Speaker 05: So in our opinion that resulted in the remand that you referenced [00:01:28] Speaker 05: we said on page 663 in the federal reporter version. [00:01:35] Speaker 05: The court is left uncertain about what the record must show for the board to find that an organization made group proposals as opposed to engaging in mere brainstorming. [00:01:43] Speaker 05: Is it enough that an employee representative makes a proposal while acting in a representative capacity? [00:01:48] Speaker 05: That standard is suggested by the result in Dillon's tours. [00:01:51] Speaker 05: And is that not what the board did on remand? [00:01:55] Speaker 06: No, it didn't, Your Honor. [00:01:56] Speaker 06: This is really a crucial point in our argument. [00:01:58] Speaker 06: The court, as Your Honor just stated, set this out as a line of cases, the majority of cases, holding that group proposals were required. [00:02:09] Speaker 06: And then Dylan Storrs, on the other hand, which seemed to suggest that group proposals were not required. [00:02:14] Speaker 06: What the board did on remand was the board decided that representative proposals are group proposals. [00:02:22] Speaker 05: Right. [00:02:22] Speaker 05: So I get that. [00:02:23] Speaker 05: I mean, the way the board framed its decision is to say that representative proposals are enough and we're going to deem them to be group proposals. [00:02:33] Speaker 05: But let's just forget that last part just for now. [00:02:35] Speaker 05: And I know that's a legitimate argument. [00:02:37] Speaker 05: But let's just, if that's just [00:02:41] Speaker 05: you know, putting the gift wrapping paper on the package. [00:02:46] Speaker 05: The package, as I understand it, was to do exactly what we said was possible, which is to say that an employee representative makes a proposal while acting in a representative capacity and that's enough. [00:02:58] Speaker 05: And then the organization can be deemed a labor organization. [00:03:02] Speaker 05: And so why does it matter that they framed it as that being a group proposal [00:03:10] Speaker 05: whatever that means. [00:03:11] Speaker 05: What matters is the content of it. [00:03:12] Speaker 05: And the content is what we said, which is that, is it enough that an employee representative makes a proposal while acting in representative capacity? [00:03:20] Speaker 05: Yes. [00:03:22] Speaker 06: Well, I think it matters for a few reasons. [00:03:24] Speaker 06: The most basic one is that the agency obviously has to give a reasoned explanation of its precedence. [00:03:33] Speaker 06: I don't think it can just call anything a group proposal that isn't one. [00:03:37] Speaker 06: But going more specifically to your point, [00:03:39] Speaker 06: I don't think it's an accident that the board chose to go to use the group proposals rubric. [00:03:46] Speaker 06: I think the problem, the reason the board did that, it didn't go with what this court set out as being its interpretation of Dylan Storrs. [00:03:55] Speaker 06: So you run into big problems if what you say is that there's a new, there's a Dylan Storrs option, which is that there doesn't have to be group proposals at all. [00:04:04] Speaker 06: One problem is how do you tell the difference between the individual proposal and a group proposal? [00:04:09] Speaker 06: I don't think this court meant to say in the previous decision that it was approving of Dylan Storrs as a correct interpretation or being consistent with its own precedent. [00:04:20] Speaker 06: I think the court simply said we've identified this line of cases and this one other option. [00:04:25] Speaker 06: We would suggest that if you, under the Dylan Storrs interpretation, the problem you have is what's happening here that makes this something which is a bilateral dealing between T-Voice as a whole and T-Mobile. [00:04:40] Speaker 06: For example, [00:04:43] Speaker 06: The group, the main example that the board brings up is one instance where a woman named Dominique Jones made what they consider to be a proposal on behalf of her group, which was called a dedicated care department. [00:05:01] Speaker 06: The board wants to then say somehow. [00:05:03] Speaker 05: That's the dual monitors? [00:05:04] Speaker 05: Yes, your honor. [00:05:06] Speaker 06: The board wants to say that somehow that should be attributed to T-Voice as a whole. [00:05:12] Speaker 06: The problem with that is that that would mean that any one individual T-Rep, and there are hundreds of T-Voice reps, any one of them could somehow turn the organization into a labor organization simply by making a proposal in the name of her constituents, let's call them. [00:05:30] Speaker 06: It's very hard to understand how that makes any sense. [00:05:33] Speaker 06: The board also did something very interesting here, which is a second level of complexity. [00:05:38] Speaker 06: The board did not just say that any type of proposal made by a rep counts as a group proposal or as a proposal that turns it into a labor organization. [00:05:48] Speaker 06: There are three possibilities of what a representative could do. [00:05:52] Speaker 06: The representative could make a proposal in her own name. [00:05:56] Speaker 06: Just take Dominique Jones as an example. [00:05:58] Speaker 06: She could make it in the name of her constituents, or she could pass along one of their proposals. [00:06:05] Speaker 06: The board says that only one of those creates a group proposal. [00:06:09] Speaker 06: if the board of the representative simply says this is what i think i think is a good thing for myself i work at this company the polaroid case says that won't work that does not make a group proposal that's that's out [00:06:21] Speaker 06: If the board, if the representative says, I'm going to just pass along something that I heard from one of my representatives, I'm just putting it into the system the way that the majority, the overwhelming majority of these proposals got made through the SharePoint system. [00:06:36] Speaker 06: Unedited, unscreened, just here they are, here's the proposal, take it. [00:06:41] Speaker 06: That also, under the FCO decision, would not be enough to create a labor organization, although the board here equivocates a little bit on whether or not it would come out that way, but they don't rely on that. [00:06:52] Speaker 06: So they're saying the only scenario here, whether it's a group proposal, is if a T-voice rep, acting as a T-voice rep, speaking on behalf of constituents, makes a proposal, then it's a group proposal. [00:07:05] Speaker 06: I would suggest this is a completely unworkable system. [00:07:08] Speaker 06: This would mean before you could ever figure out whether or not an entity was a labor organization, you'd have to inquire into the origin of the proposal. [00:07:18] Speaker 06: Where did it come from? [00:07:19] Speaker 06: To counsel, I think. [00:07:20] Speaker 02: I could imagine hypotheticals where those lines are difficult to draw. [00:07:24] Speaker 02: I'm struggling why it's difficult here. [00:07:26] Speaker 02: And in particular, I wonder how you would ask us to think about T-Mobile's own statements, right? [00:07:32] Speaker 02: So Dominique Jones makes a request. [00:07:34] Speaker 02: First of all, it's on behalf of her entire group. [00:07:37] Speaker 02: So that might be one piece of evidence that it's a representative capacity. [00:07:42] Speaker 02: After the fact, T-Mobile turns around, and I don't have the quote in front of me, but essentially says, T-Voice made this happen. [00:07:49] Speaker 02: T-Voice is doing a good job for you. [00:07:51] Speaker 02: And so in that kind of a situation where it's clear, it seems like that's a basis for the board to say, look, everyone understands that the individual was acting in a role as part of T-Voice and was credited for acting in that role. [00:08:06] Speaker 02: And in that situation, it seems like the line is pretty easy to draw. [00:08:11] Speaker 06: Well, the board did cite that evidence, but that was not the only basis on which the board came to this conclusion, that she was acting in a representative capacity. [00:08:19] Speaker 06: The board, at length, went through each of these six examples and explained, went, actually tried to go through and explain what was the origin of the proposal, where did it come from, why was it made. [00:08:30] Speaker 06: The Dominique Jones example, I'll concede, is a little bit clearer, that she was speaking on behalf, or was trying to speak on behalf of her group. [00:08:40] Speaker 06: The other five examples, though, it's not clear at all. [00:08:43] Speaker 06: If you look at what the NLRB actually said in the remand decision, they based their conclusion on things like, well, there's an entry in the system, and the entry says, uses this person's name. [00:08:57] Speaker 06: We're going to then just assume that if it's in the name, if the T-boy's rep listed her own name, we're going to assume then she wasn't passing along somebody else's suggestion. [00:09:05] Speaker 06: We're going to assume it was hers. [00:09:06] Speaker 06: in the fact the problem was that the record wasn't developed for that purpose in mind at all right the record was developed in the first case when the board took the position that this was this was this was not a labor organization those conclusions just simply don't follow there's another level of this which is also problematic in the board's findings which is that the board reversed [00:09:26] Speaker 06: its findings on five out of those six examples. [00:09:29] Speaker 06: So put aside Dominique Jones again for a minute. [00:09:31] Speaker 06: The other five were situations which came up during these national conventions. [00:09:38] Speaker 06: One of those cases, the board initially said, this was the example involving performance metrics. [00:09:44] Speaker 06: The board initially said this is, there was no response by management. [00:09:50] Speaker 06: That was actually a finding that the board made. [00:09:52] Speaker 06: On remand, the board said, well, it doesn't really have to decide whether or not T-Mobile accepts this or not. [00:10:01] Speaker 06: It just has to contemplate it. [00:10:02] Speaker 06: That's not the standard. [00:10:04] Speaker 06: The standard, as the board has said many times, is that there has to be acceptance or rejection in word or in deed. [00:10:10] Speaker 01: Before you go any further, I'm just wondering whether all of this is a red herring. [00:10:17] Speaker 01: Because if I look at the statute, the statute says that the [00:10:22] Speaker 01: committee or whatever it is, the organization, exists for the purpose in whole or in part of dealing with employers concerning grievances, et cetera. [00:10:33] Speaker 01: Exists for the purpose in whole or in part. [00:10:36] Speaker 01: Isn't the first thing that you would have to look at is what the charter is for T-Voice? [00:10:42] Speaker 01: Why was it established? [00:10:45] Speaker 01: If it exists for the purpose of, a couple examples that don't conform to the purpose, [00:10:52] Speaker 01: Proofs nothing. [00:10:56] Speaker 01: And the charter is on page, finally, page, what is it? [00:11:02] Speaker 01: 761 of the appendix. [00:11:04] Speaker 01: That's the charter. [00:11:07] Speaker 06: I believe that's the charter, Your Honor. [00:11:10] Speaker 01: What the court, what the board has done consistently, there are lines of, I guess there were sort of two lines of... Let me finish one other thought that I have, is that the law has a doctrine to take care of situations like you're describing, and it's called de minimis non curat lex. [00:11:30] Speaker 01: Right? [00:11:32] Speaker 01: What is it? [00:11:32] Speaker 01: Three thousand different complaints or whatever from customers and then six possible instances in which the employer or employee talks about employee stuff. [00:11:45] Speaker 06: I completely agree. [00:11:47] Speaker 06: It really was de minimis. [00:11:49] Speaker 06: That's what the dissenting member of the board felt. [00:11:53] Speaker 06: And this is reinforced by the fact that we're literally now seven years later. [00:11:58] Speaker 06: And the board makes this pretty extraordinary statement in their brief that there are lingering effects. [00:12:02] Speaker 06: lingering effects of whatever they think was the original composition or purpose or functioning of T-Voice. [00:12:10] Speaker 06: It's hard to imagine how there could be any lingering effects whatsoever this many years later. [00:12:14] Speaker 06: In fact, I'll go even further. [00:12:16] Speaker 06: On the theory that an individual T-Voice rep, by making a proposal, can somehow now turn the overall organization into a labor organization, [00:12:26] Speaker 06: That would mean then that seven years later, the board should be taking into account what one person did whose long gone, because their terms were six or nine months. [00:12:38] Speaker 06: So the board has now said, effectively, one person who did something seven years later [00:12:43] Speaker 06: after the company has disclaimed that that's the purpose of it, after the company has, after the board itself has found that there are no further, there were no further employee pain points being contemplated past February 2016, based on what one person did, or even, or a handful of people did, that the correct result is disestablishment. [00:13:05] Speaker 06: That's very, very hard to understand how that could be. [00:13:09] Speaker 01: It refers to there are a lot of acronyms here. [00:13:13] Speaker 01: But one of the things that sticks out is that it seems to be dealing with exclusively with customers and the relationship between customers and frontline. [00:13:27] Speaker 01: Who is frontline? [00:13:28] Speaker 06: Frontline are the customer service representatives who deal with the customers when they call. [00:13:32] Speaker 01: So this is all about the relationship between customers and frontline people. [00:13:36] Speaker 01: That's the charter. [00:13:38] Speaker 01: And I don't see how six instances over involving, compared with 3,000 changes that purpose of the charter. [00:13:51] Speaker 06: I agree. [00:13:52] Speaker 04: Did you raise a purpose argument? [00:13:53] Speaker 04: I thought you were talking about dealing in. [00:13:58] Speaker 06: So it's all folded in together. [00:14:00] Speaker 06: The standard is that the group exists at least in part for the purpose of dealing with the employer. [00:14:07] Speaker 06: The question is, does the purpose of dealing with, is that judged by what actually happens, which is what some board cases say, or is it judged by sort of documents that would say what the purpose is? [00:14:17] Speaker 06: What the board has often said is, we look at what actually happens. [00:14:22] Speaker 06: They did rely on statements from T-Mobile, from the employer, [00:14:27] Speaker 06: But they also, as I said, they went through an excruciating detail to talk about these examples as if the examples mattered. [00:14:32] Speaker 06: So that was the decision, that was the basis the board gave for its decision. [00:14:36] Speaker 06: I want to just mention one more thing, Judge Randolph. [00:14:37] Speaker 02: Can I just very briefly ask about how you're reading the charter? [00:14:40] Speaker 02: Just a question. [00:14:41] Speaker 02: So I think clearly one part is work on how CSRs work with customers. [00:14:48] Speaker 02: The second sentence here is provide a vehicle for frontline feedback. [00:14:51] Speaker 02: So vehicle for CSR feedback and create a closed loop communication with T-Mobile senior leadership team. [00:14:59] Speaker 02: I think the way the board construes that is it's telling all the potentially represented employees. [00:15:06] Speaker 02: This is your route for raising issues and [00:15:10] Speaker 02: getting them addressed by management. [00:15:13] Speaker 02: Why is that wrong? [00:15:15] Speaker 06: I don't think that's what it meant. [00:15:17] Speaker 06: If this was really the vehicle for the front line, the CSRs to complain about their jobs or talk about terms and conditions of their job, I don't think you'd have only six examples. [00:15:28] Speaker 06: I think you'd have many, many, many examples out of thousands of them. [00:15:31] Speaker 06: I think the point is, and the board actually I think is [00:15:36] Speaker 06: The board deals with this in an unpersuasive manner. [00:15:39] Speaker 06: The board wants to argue now that, well, any time you're dealing with how customers interact with the company, well, that automatically implicates employee issues because they're the ones who have to deal with it. [00:15:52] Speaker 06: That can't be the standard. [00:15:53] Speaker 06: That's the way they get around one of their factual findings, the one that I just mentioned, which was that, you know... Can I follow up on that? [00:16:01] Speaker 01: example that is the prime example of getting dual screens. [00:16:08] Speaker 01: Why isn't that a customer enhancement thing? [00:16:16] Speaker 01: Because it enables the frontline people to better handle customer complaints. [00:16:22] Speaker 06: It is, Your Honor. [00:16:24] Speaker 01: Did you argue that? [00:16:25] Speaker 01: Was that argued by the employer? [00:16:27] Speaker 06: I don't think it was argued explicitly that way below. [00:16:31] Speaker 06: So we haven't pushed that on appeal here. [00:16:34] Speaker 06: But it's definitely, to answer the question, each of these examples. [00:16:39] Speaker 05: But I could see a lot of situations in which a customer service representative is going to come to management and say, the best way I can deal with customers [00:16:49] Speaker 05: is if you change my terms and conditions so that I can do the following. [00:16:55] Speaker 05: Right. [00:16:55] Speaker 06: But I don't think we have examples of that. [00:16:57] Speaker 05: But if that were the case, then would you say that that's not germane to whether the organization is acting as a labor organization? [00:17:05] Speaker 05: Because they're still talking about terms and conditions. [00:17:07] Speaker 06: No, no, I think if it were explicitly terms and conditions of the sort that, you know, I would do a better job if I had an extra hour off every day. [00:17:14] Speaker 06: Right. [00:17:15] Speaker 06: That would be a term and condition. [00:17:16] Speaker 05: I'd serve the customers better if I had an extra. [00:17:19] Speaker 05: Correct. [00:17:19] Speaker 05: That would just be. [00:17:20] Speaker 06: Yes. [00:17:20] Speaker 06: But these are all much more closely tied to the customer. [00:17:23] Speaker 05: Can I ask you on this? [00:17:25] Speaker 05: This is just, I just don't have the answer to this. [00:17:27] Speaker 05: And it may well be explored, but what's the reference to internal and external customers? [00:17:33] Speaker 05: So what is that? [00:17:34] Speaker 05: Who are the internal customers? [00:17:37] Speaker 05: I'm not sure, Your Honor. [00:17:39] Speaker 05: I guess where I'm obviously going is if it's internal customers, that's how you raise stuff that matters to you as opposed to the external customers who buy our product. [00:17:50] Speaker 05: Then would that mean that by mission and objectives, by identifying, discussing, and communicating solutions for roadblocks, [00:18:00] Speaker 05: for internal and external customers? [00:18:03] Speaker 06: I'm not sure what that means. [00:18:05] Speaker 01: I can offer a hypothetical because I wondered about the same. [00:18:10] Speaker 01: And the way I took it was that an internal customer is an existing customer and an external customer is a potential customer. [00:18:18] Speaker 01: And the front line deals with both. [00:18:23] Speaker 06: It may be. [00:18:24] Speaker 06: The only thing I want to say about just this point before I sit down is just that these were not the rationales on which the board renders decision. [00:18:31] Speaker 06: I understand the court's asking the questions anyway. [00:18:33] Speaker 06: But that's the decision. [00:18:35] Speaker 06: It based its decision on those examples and on a few generic statements that the company made, not even the charter. [00:18:45] Speaker 06: Thank you, Your Honor. [00:18:47] Speaker 05: OK. [00:18:47] Speaker 05: Thank you, Mr. Harris. [00:18:48] Speaker 05: We'll give you some time for rebuttal. [00:18:50] Speaker 05: Mr. Larrow, we're hearing from you now. [00:18:55] Speaker 07: Good morning, Your Honours. [00:18:56] Speaker 07: May it please the Court, I am Greg Lauro for the National Labour Relations Board. [00:19:01] Speaker 07: If your honors would like, I would like to start with the issue of the board's determination that proposals made by individual members of a group acting in a representative capacity count as a group proposal for the purposes of assessing dealing in a labor organization. [00:19:17] Speaker 07: I know you discussed that this morning. [00:19:19] Speaker 07: Not to recap too much, but in remanding, the court acknowledged that the board can have a group proposal requirement [00:19:26] Speaker 07: but that the board's assumption that individual proposals didn't qualify potentially ran counter to some precedent and as well as the board's observation that under the act [00:19:38] Speaker 07: Informal organizations, that is ones that don't necessarily have a formal mechanism for adopting proposals, can count as well. [00:19:46] Speaker 07: And in answering the court's question, would individual proposals suffice? [00:19:50] Speaker 07: The board answered that in the affirmative. [00:19:53] Speaker 07: It looked at the text of the act in the legislative history. [00:19:56] Speaker 07: It looked at the case law, including that which the court cited. [00:20:00] Speaker 07: and came to a reasonable conclusion, consistent with the act itself, that yes, proposals by individual group members acting in a representative capacity do suffice as group proposals. [00:20:14] Speaker 07: And I'm happy to answer any questions. [00:20:18] Speaker 05: So it's true, I think, that we didn't conceive, in our opinion, of those individual proposals as being [00:20:29] Speaker 05: group proposals. [00:20:31] Speaker 05: That's the board added that, and maybe with good reason the board added that. [00:20:35] Speaker 05: But I didn't read our decision to contemplate that those would be considered group proposals. [00:20:41] Speaker 05: They still might be enough to render the organization a labor organization. [00:20:44] Speaker 05: Right. [00:20:45] Speaker 07: And that is the key point, whether it's a labor organization. [00:20:48] Speaker 07: As to, I believe you call it the packaging as opposed to the contents. [00:20:52] Speaker 07: The board came in in its first decision saying, we have a group proposal requirement. [00:20:56] Speaker 07: And I view the court as saying, [00:20:59] Speaker 07: That alone is fine, but what about this issue of individual group members making proposals in a representative capacity? [00:21:06] Speaker 07: And the board said, yes. [00:21:06] Speaker 07: Can you talk a little louder, please? [00:21:09] Speaker 07: Yes, sir? [00:21:10] Speaker 07: Can you talk a little louder? [00:21:11] Speaker 07: Oh, I'm sorry. [00:21:13] Speaker 07: Can you hear me now? [00:21:14] Speaker 05: Yeah, if you speak directly to the mic, it's a lot better. [00:21:16] Speaker 07: I will lean in. [00:21:16] Speaker 05: Thank you. [00:21:17] Speaker 05: Thank you. [00:21:19] Speaker 05: So you were saying about the addition of group proposals, which appears to be an add-on to the way we described. [00:21:27] Speaker 07: the dylan's store and in the spectrum right i i view it as i was saying is the board coming in pre-remand with a group of calls a requirement and the court saying we understand that you cite some cases for that dupont afco those four but the court observed specifically that none of them say none of them hold that it's not a group of calls a requirement or if you prefer sufficient for dealing [00:21:56] Speaker 07: individual members of the group make proposals while acting in a representative capacity. [00:22:01] Speaker 07: And what's interesting about that is my opponent says, well, we have those four same cases. [00:22:06] Speaker 07: Why don't we just return to that approach and those cases? [00:22:10] Speaker 07: But that's exactly what led to the remand. [00:22:12] Speaker 07: The court said those cases don't answer the question adequately. [00:22:16] Speaker 07: They leave it open and potentially conflict with cases like Dylan. [00:22:20] Speaker 07: And again, the idea that an informal structure can suffice. [00:22:23] Speaker 07: But at the end of the day, the question before the court is whether the board's view is reasonable and consistent with precedent in the act, and the answer is it is. [00:22:33] Speaker 07: And I think just pointing to those four cases and saying the board departed from that isn't sufficient because the court explained those cases don't answer the question. [00:22:43] Speaker 07: They don't hold that individual proposals don't suffice. [00:22:47] Speaker 07: And I think the board then applied that standard. [00:22:51] Speaker 07: And one thing I want to get out of the way is my opponent suggested that the board switched from the first time, I'm sorry, switched from the first time on some specific factual findings. [00:23:02] Speaker 07: What actually happened was the first time the board is saying these aren't group proposals and that's essentially the end of the analysis and because of that it actually drops a footnote. [00:23:14] Speaker 07: This is footnote 21 of the first decision saying because we find these are not group proposals and therefore under our framework you don't have dealing in a labor organization we don't need to address whether these proposals involve statutory conditions. [00:23:27] Speaker 07: We don't need to get there. [00:23:29] Speaker 07: So when my opponent says well the board switched as to that it didn't. [00:23:32] Speaker 07: I acknowledge there's one instance where I can't recall frankly if it was just in its factual recitation in the first case. [00:23:40] Speaker 07: The board noted there was one proposal. [00:23:42] Speaker 07: You may recall the one about metrics at the 2015 summit where Tolman, the head of T-Voy said, I don't think there was any. [00:23:50] Speaker 07: follow-up. [00:23:51] Speaker 07: That's what the board said the first time. [00:23:53] Speaker 07: But the record actually shows she just said she didn't follow up and this time the board noted additional evidence where multiple managers forwarded the proposal in question for consideration. [00:24:06] Speaker 07: So I'm just saying the board this time properly considered all the record evidence. [00:24:10] Speaker 07: Last time it was focused on a group proposal. [00:24:12] Speaker 07: I just don't see this contradiction or 180. [00:24:15] Speaker 02: Can you address these questions about the charter? [00:24:18] Speaker 02: Because as I read it [00:24:19] Speaker 02: the board the board does cite the charter and it interprets it as a statement that t voice is going to represent the frontline workers in dealing with management and that probably that plays a big role in somehow finding that six instances is enough out of the thousands but uh i think the question has been raised about whether the board is reading that charter correctly so can you address that [00:24:49] Speaker 07: I think your honor's statement is absolutely right. [00:24:51] Speaker 07: The board is reading the charter as indicating that T-Voice representatives, they're called representatives, will represent other employees. [00:24:59] Speaker 07: And frankly, I don't think their representative status is disputed here. [00:25:04] Speaker 07: As to the charter, it clearly says, and you discussed it this morning, that we can raise both customer and front line. [00:25:11] Speaker 01: You have to speak louder. [00:25:12] Speaker 01: Sorry. [00:25:12] Speaker 01: Speak into the microphone. [00:25:13] Speaker 07: Both customer and front line pain points. [00:25:16] Speaker 07: Frontline pain points are employee pain points. [00:25:19] Speaker 07: And it's not just the board treating it that way. [00:25:21] Speaker 07: The employer did. [00:25:22] Speaker 07: Employer managers, their own representatives, and T-voice representatives all understood that they could raise any pain point under this program. [00:25:32] Speaker 05: Is that right? [00:25:32] Speaker 05: So front, just as a matter of semantics. [00:25:36] Speaker 05: Yes. [00:25:37] Speaker 05: Frontline pain points, as the board understands it by definition, are [00:25:44] Speaker 05: CSRs raising questions about their own terms and conditions? [00:25:49] Speaker 05: Absolutely. [00:25:50] Speaker 01: That's not what you said in your brief. [00:25:53] Speaker 01: You said that the program, the T-Voice, exists to enhance [00:26:07] Speaker 01: customer and frontline experience by identifying, discussing, communicating solutions for roadblocks for internal and external customers. [00:26:17] Speaker 01: I didn't say anything in your brief, anyway, about enhancing the experience of employees. [00:26:25] Speaker 07: Well, two things, Your Honor. [00:26:26] Speaker 07: One is, as we discussed, frontline means CSRs. [00:26:30] Speaker 07: I would say internal customers likely means employees, too. [00:26:34] Speaker 07: But I'm looking at the record as a whole. [00:26:36] Speaker 07: How did the employer run this program? [00:26:39] Speaker 07: What did it encourage employees and in particular chief waste representatives to do? [00:26:44] Speaker 07: It encouraged them, this is the undisputed testimony, to go out and get all pain points. [00:26:49] Speaker 07: This was understood including by the employer as getting employee pain points as well as customer pain points. [00:26:55] Speaker 07: They claim they stopped doing the latter at some point, getting employee pain points. [00:27:00] Speaker 07: But I don't think it's really disputed or not reasonably that the charter encourages the T-Voice representatives and employees to bring forth complaints about their own working conditions. [00:27:10] Speaker 05: And if I know and are you looking at just it would be helpful if you look specifically at the charter. [00:27:16] Speaker 05: and tell us exactly what you're relying on. [00:27:18] Speaker 07: Well, I'm relying on the charter and how it was understood and expressed in the testimony, meaning that's what happened on the ground. [00:27:26] Speaker 01: As the board noted, it's undisputed that the employer's agents... How do you know that any one of the employees in the six instances were invoking the charter? [00:27:36] Speaker 01: How do you know that? [00:27:37] Speaker 01: There's no evidence that I've seen indicating that they were invoking the charter at all. [00:27:43] Speaker 07: Well, I see, Your Honor, but a couple things. [00:27:45] Speaker 07: I mean, as was also discussed this morning, in establishing a labor organization, we're looking at both the purpose, as you noted, the access for the purpose in whole or in part of dealing with the employer, but we also look at what actually happened. [00:27:59] Speaker 07: And here's what actually happened. [00:28:01] Speaker 01: After setting up an organization- The statute tells you to look at the purpose. [00:28:04] Speaker 01: It doesn't say anything about anything else. [00:28:06] Speaker 07: Well, the case law says both the purpose and what the organization actually does. [00:28:11] Speaker 01: How it's operated is evidence of the purpose. [00:28:13] Speaker 07: Is that the idea? [00:28:14] Speaker 07: I think what happens is evidence of the purpose. [00:28:17] Speaker 07: I think both are important. [00:28:18] Speaker 01: But what I'm trying to say is... Is that a preponderance statement, a requirement by a preponderance of the evidence that was operated to enhance the employees with respect to grievances, for example? [00:28:33] Speaker 01: Because if that's the test, [00:28:35] Speaker 01: 3,000 instances on one hand and six on the other, you'd lose. [00:28:40] Speaker 07: Well, Your Honor, the question is whether the evidence shows a pattern of practice, both the purpose and what actually happened. [00:28:48] Speaker 07: And what actually happened is, first of all, T-Mobile set it up to work this way. [00:28:53] Speaker 07: They did say, you are representatives. [00:28:56] Speaker 07: go out and get your employees' comments, set up regular meetings where the T-Boys representatives were invited to come up with proposals, and then the employer accepted in a couple cases and in other cases considered or indicated it would consider those proposals. [00:29:13] Speaker 07: That is a pattern or practice of dealing under settled law. [00:29:17] Speaker 07: And my opponent cites no case saying six instances isn't enough. [00:29:21] Speaker 07: When you look at the cases they cite, one, purpose matters. [00:29:25] Speaker 07: There was one instance where it was unintentional. [00:29:28] Speaker 07: You have examples of an employer having a program for three years, which they said was not meant to deal with statutory conditions, and they slipped or I think they used the word straight once. [00:29:39] Speaker 07: That's not what happened here. [00:29:41] Speaker 07: This is the way T-Mobile set up the program and intended it to run. [00:29:45] Speaker 07: In six instances is enough. [00:29:47] Speaker 07: Now the only way you get 3,000, I think that's a bit of a misnomer, is looking at SharePoint. [00:29:52] Speaker 07: But what the board's looking at is the meeting and direct contact aspect. [00:29:59] Speaker 07: The company set it up so you would have these meetings. [00:30:02] Speaker 07: And during those meetings, there were multiple instances of proposals being made and accepted or considered. [00:30:09] Speaker 07: And that's dealing. [00:30:10] Speaker 07: If you take my opponent's approach and just say, well, we've got two aspects to this program. [00:30:16] Speaker 07: One might look like dealing because they cite no case saying six instances aren't enough. [00:30:20] Speaker 07: But we can just wash it away or dilute it with this more ministerial SharePoint program. [00:30:26] Speaker 07: and we can wash our hands of it. [00:30:28] Speaker 07: I don't think that makes sense, because as we point out in our brief, then an employer could have something that looks like a program. [00:30:33] Speaker 07: I mean, looks like a labor organization that has dealing. [00:30:38] Speaker 07: Six instances over several months, in a manner that's consistent with the way the program's set up, that's dealing under settled law. [00:30:45] Speaker 07: That impacts employees. [00:30:46] Speaker 07: This domination of a labor organization is the most serious violation of 8.8.2. [00:30:51] Speaker 07: But then the employer could just say, well, we've got this other aspect. [00:30:53] Speaker 07: We don't think dealing happens there, so it's OK. [00:30:56] Speaker 07: And that's even putting aside the board didn't address whether SharePoint itself involved dealing because it didn't feel it needed to. [00:31:05] Speaker 07: It already had six or I prefer eight instances of dealing over several months and that's enough. [00:31:12] Speaker 07: I don't think six out of 3,000 is the relevant comparison. [00:31:15] Speaker 07: I think it's six intentionally over a period of several months and my opponent cites an okay saying that's not dealing. [00:31:27] Speaker 02: Now my opponent, I just respond to address the evidence of consideration. [00:31:32] Speaker 02: So obviously that's one piece of this. [00:31:35] Speaker 02: You're the other side obviously says you changed the test from acceptance or rejection to real or apparent consideration. [00:31:45] Speaker 02: But even if you're right on that does seem like you rely on things. [00:31:52] Speaker 02: For example, an email forwarding a suggestion saying we will [00:31:57] Speaker 02: consider this in the future or something to that effect. [00:32:01] Speaker 02: I'm just curious, what is the board's position on what's sufficient? [00:32:06] Speaker 02: Do we need to think there was substantial evidence to find that later meeting actually happened and it was considered and that's the finding we're reviewing? [00:32:14] Speaker 00: Right. [00:32:14] Speaker 07: Well, Your Honor, I think it's first important in answering that question to go through all the evidence of acceptance and consideration we have that adds up to supporting the dealing because [00:32:24] Speaker 07: Out of the six or eight instances, two proposals were accepted. [00:32:29] Speaker 07: I think with dual monitors, that's acknowledged, but also with the suggestion that we need a better script at one point to do our jobs better when we're talking to customers. [00:32:39] Speaker 07: The employer said, we'll do. [00:32:41] Speaker 07: We know we will update that to have a more realistic scenario. [00:32:44] Speaker 07: So you have a couple instances of acceptance. [00:32:47] Speaker 07: You have other instances where the employer indicated [00:32:50] Speaker 07: an intention to consider the proposal, like they took actual action. [00:32:55] Speaker 07: They said, we will consider this, we will get back to you by the next meeting or sooner. [00:33:00] Speaker 02: Well, that's my question. [00:33:01] Speaker 02: Right. [00:33:02] Speaker 02: Do we need evidence that they intended to consider it? [00:33:04] Speaker 02: No. [00:33:05] Speaker 02: Do we use that as circumstantial evidence that they did consider it? [00:33:08] Speaker 07: I think it's circumstantial evidence they did. [00:33:10] Speaker 07: In fact, I would also say, if you take that specific action of indicating an intention to consider, and I promise you, I say, interesting proposal, [00:33:20] Speaker 07: I'm going to forward it up the line and we're going to get back to you by the next meeting or sooner and you don't. [00:33:26] Speaker 07: That could be an indication of an implicit rejection or if you prefer rejection by word or deed. [00:33:31] Speaker 07: It is not inconsistent with the rejection or acceptance standard. [00:33:36] Speaker 07: Nor was the standard changed. [00:33:37] Speaker 07: The standard is actual or apparent consideration. [00:33:41] Speaker 07: That's from electromation. [00:33:43] Speaker 07: Even after cases like DuPont and others that also use the acceptance or rejection standard, a case like AFCO, both the board and the court, referred to actual or apparent consideration, proposals plus management consideration. [00:33:57] Speaker 07: And I think we have that here. [00:33:58] Speaker 07: We have a couple acceptances. [00:34:00] Speaker 07: We have clear indication of an intent to consider. [00:34:04] Speaker 07: And even if the promised action of further consideration didn't happen, that appears to be an implicit rejection of the proposal. [00:34:14] Speaker 07: What it isn't, what it isn't, my opponent suggests, boy, we've gotten to the point of just passive knowledge of the proposal. [00:34:23] Speaker 07: Passive consideration, whatever that is, is sufficient. [00:34:25] Speaker 07: That's not what the board found. [00:34:27] Speaker 07: It identified specific actions and decisions by the employer. [00:34:30] Speaker 07: Again, a couple times accepting, other times specifically saying, we'll give that consideration and get back to you soon. [00:34:37] Speaker 07: And if they don't, I guess it suggests they decided not to go that direction. [00:34:42] Speaker 07: They decided to reject it. [00:34:44] Speaker 07: But I don't think, as my opponent says, wow, we can no longer even tell what counts as a group proposal, because as Your Honor said, we can tell in this case, and T-Mobile indicated that they would tell when they would say, accept the proposal about dual monitors and then issue a newsletter saying, great job by T-Voice. [00:35:03] Speaker 07: They weren't confused about whether it was a group proposal, and there's other evidence of that. [00:35:07] Speaker 07: I believe with some of the metrics proposals, there were instances where they said, you know, we're going by the issue raised or other categories, not the individual. [00:35:19] Speaker 07: So unless your honor has, honors have further questions, I thank the court for its time. [00:35:25] Speaker 04: I don't think so. [00:35:25] Speaker 04: Thank you, Mr. Olaro. [00:35:27] Speaker 04: Mr. Harris, we'll give you three minutes for rebuttal. [00:35:31] Speaker 06: I want to get a few points. [00:35:33] Speaker 06: The first point is, Judge Garcia, to your last question about the six examples and the question of whether there was a flip-flop on the board's reasoning. [00:35:42] Speaker 06: One flip-flop that we've already identified has to do with, as we just talked about, whether or not the, what the purpose was of [00:35:54] Speaker 06: whether or not the proposal was considered or was not considered. [00:36:00] Speaker 06: Of the six examples, four of them concern a different flip-flop, which is whether or not these were employee pain points or whether these were customer pain points. [00:36:11] Speaker 06: And it's absolutely explicit in the original board's decision that the board deemed the device emulators, the phone exchanges, the device setup, and also the device insurance as all being customer issues, not employee issues. [00:36:30] Speaker 06: I won't read all the quotes, but it's absolutely crystal clear in the decision. [00:36:33] Speaker 06: I'll read one quote. [00:36:35] Speaker 06: This is from the board's first decision. [00:36:37] Speaker 06: The record does not indicate that T-Boards representatives were involved in this matter other than by entering suggestions in the SharePoint. [00:36:43] Speaker 06: There is no evidence that T-Boards representatives discussed any employee pain point or idea to resolve a pain point at these meetings. [00:36:51] Speaker 06: The board has completely changed its view on whether something's an employee pain point or a customer pain point. [00:36:59] Speaker 06: And its rationale for that is, well, if it's a customer pain point, it must also affect the employees. [00:37:05] Speaker 06: But that's not the distinction that the board drew the first time. [00:37:08] Speaker 06: The board, on page two of its first decision, clearly distinguished between customer issues, which are called customer pain points, and a small number of employees' terms and conditions, which are called employee pain points. [00:37:21] Speaker 06: So that's another problem with the switch in their factual findings. [00:37:26] Speaker 06: Going back to the first issue we began with, which was representative capacity. [00:37:31] Speaker 06: I would challenge the characterization that this is an add-on. [00:37:37] Speaker 06: The board explicitly and deliberately chose to take this new approach and shoehorn it into the group proposal category. [00:37:50] Speaker 06: And that raises a fundamental question, which is what group are we talking about? [00:37:53] Speaker 06: Where's the group? [00:37:54] Speaker 06: There is no discussion anywhere in the board's decision about what is the group. [00:37:58] Speaker 06: If this is a group proposal, what's the group? [00:38:00] Speaker 06: The only group I can think of, which they don't say because they don't say anything about this, is that it's the group of that rep and that rep's constituents, the 10 or 15 or however many people it is. [00:38:10] Speaker 06: But once you say that, then it makes no sense that this is being charged against the entire organization, right? [00:38:17] Speaker 06: If Dominique Jones, on behalf of the dedicated care department, that group, makes a proposal, why do you disestablish T-Voice altogether? [00:38:28] Speaker 01: Tevoys things around the country. [00:38:34] Speaker 01: How many of them? [00:38:35] Speaker 06: I believe there are somewhere between 10 and 20, it's changed over time, I think, call centers. [00:38:43] Speaker 06: There are something like a few hundred Tevoys reps all together. [00:38:48] Speaker 01: All over the United States? [00:38:49] Speaker 01: In these various places where they have call centers that deal with... Is there any indication that in any of these six [00:38:56] Speaker 01: examples that there was communication between one regional T-Voice office and another? [00:39:03] Speaker 06: No, absolutely not. [00:39:04] Speaker 06: In fact, the converse, which was that the board said the first time that there was no communication, there was no screening, there was nothing going on. [00:39:20] Speaker 06: That's why the first time the board decided that T-Voice could not be held responsible. [00:39:26] Speaker 06: that this was a group proposal, because there was no evidence that T-Boys has had anything to do with what individual representatives were proposing. [00:39:34] Speaker 06: The board hasn't moved off that. [00:39:35] Speaker 06: They've just changed the definition of the group, and they're hoping that by this switcheroo, it'll be attributed, this group is that group, but they're not. [00:39:43] Speaker 06: One final point I'll just mention, sorry, I know I'm out of time, is just that I've heard nothing from the board at all to explain the passage between 2016 and 2023. [00:39:52] Speaker 06: The board made explicit findings in its decision that employee pain points were no longer considered after February 2016. [00:40:01] Speaker 06: It's in the brief. [00:40:03] Speaker 06: It's on the brief on page 55, I believe on page 7. [00:40:06] Speaker 06: So why is it being disestablished? [00:40:08] Speaker 06: They just don't have an answer for that. [00:40:10] Speaker 06: The court has no further questions. [00:40:13] Speaker 04: Thank you, counsel. [00:40:13] Speaker 04: Thank you to both counsel. [00:40:14] Speaker 04: We'll take this case under submission.