T-Mobile USA, Inc.

National Labor Relations Board - Board Decisions

Feb 2, 2017

365 NLRB No. 23 (N.L.R.B. 2017)

365 NLRB No. 23
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
T-Mobile USA, Inc. and Communication Workers of
America, AFL-CIO and Communication Work-
ers of America, Local 1298, AFL-CIO. Cases
01–CA–123183, 01–CA–129976, and 01–CA–
140752
February 2, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On August 3, 2015, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief, and
the Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions in part and reverse them in part.
We adopt the judge’s dismissal of the allegations that
the Respondent violated Section 8(a)(5) and (1) of the
Act by issuing and maintaining its employee handbook,
which included “at will” and “attendance” policies, in
January 2014.2 Additionally, we adopt the judge’s dis-
missal of the allegations that the Respondent inde-
pendently violated Section 8(a)(1) of the Act by this
same conduct.
For the reasons discussed below, we reverse the
judge's dismissal of the allegations that the Respondent
violated Section 8(a)(5) and (1) by refusing to bargain

1 In the absence of exceptions, we adopt the judge’s dismissal of the
allegations that the Respondent violated the Act with regard to a change
in notice requirements for use of paid time off.
2 The judge erroneously found that the General Counsel abandoned
the complaint allegations relating to the Respondent’s “absenteeism”
policy. To the contrary, both the General Counsel and the Charging
Party addressed the “absenteeism” policy in their briefs to the judge,
although consistent with the complaint allegation, they referred to it as
the “attendance policy.” Therefore, we find that this allegation was not
abandoned. Nevertheless, we agree with the judge’s conclusion that the
Respondent did not violate the Act with respect to its issuance of the
2014 handbook, for the reasons stated in his decision.
Member McFerran finds that this case is distinguishable from
Heck’s Inc., 293 NLRB 1111 (1989) (finding a violation of Sec. 8(a)(5)
and (1) where the employer distributed an employee handbook incon-
sistent with the terms of the collective-bargaining agreement), and
United Cerebral Palsy of New York City, 347 NLRB 603 (2006)
(same), cited by the General Counsel, because the collective-bargaining
agreement here contained a superseding clause that could be reasonably
read to state that the agreement would govern over inconsistent work
rules and policies.
with the Union over a successor collective-bargaining
agreement.
A. Facts
The Respondent is a cell phone service provider that
employs workers throughout the United States. Pursuant
to an election held in 2011, the Respondent recognized
the Communications Workers of America and its affiliat-
ed Local 1298 (collectively, the Union) as the exclusive
collective-bargaining representative for a unit consisting
of “[a]ll full-time and regular part-time field technicians,
switch technicians and material handlers employed by T-
Mobile USA in the State of Connecticut, but excluding
all other employees, contractors and supervisors and
guards as defined in the Act.” The Respondent and the
Union entered into a collective-bargaining agreement,
effective from July 31, 2012, through May 31, 2014.
On March 28, 2014, a unit employee filed a decertifi-
cation petition, supported by a showing of interest. The
petition remains pending, although it has been blocked
by the unfair labor charges at issue in this case. Shortly
thereafter, the Respondent received a separate petition
signed by 13 of the 20 bargaining unit employees, stating
that they no longer wished to be represented by the Un-
ion. In April 2014, the Respondent and the Union began
to discuss negotiating a successor agreement, and sched-
uled bargaining sessions for June and August. The Un-
ion cancelled the bargaining sessions in June, but attend-
ed two sessions in August.
On October 8, 2014, the Respondent notified the Un-
ion that it was suspending bargaining over a successor
contract until the representation issue was resolved, but
would continue to recognize the Union as the bargaining
representative for the unit employees, abide by the terms
of the expired collective-bargaining agreement, and bar-
gain on interim matters. The Respondent has indeed
continued to negotiate with the Union over interim mat-
ters, including stock grants, changes to the fleet policy,
and changes to the mileage reporting and tax implica-
tions for use of company vehicles. The Respondent has
also processed a termination grievance, continued to fur-
nish information upon the Union’s request, and contin-
ued to speak with the Union about matters affecting unit
employees. The Respondent has continually refused,
however, to bargain over a successor collective-
bargaining agreement.
B. Discussion
The judge found that the Respondent did not violate
Section 8(a)(5) and (1) of the Act by suspending negotia-
tions over the successor collective-bargaining agreement
in October 2014. Citing Levitz Furniture Company of
the Pacific, 333 NLRB 717 (2001), the judge observed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
that an employer may unilaterally withdraw recognition
from an incumbent union if it has objective evidence that
the union has lost majority support. See Levitz, supra, at
725. The judge acknowledged that while an employer’s
otherwise legal withdrawal of recognition can be “taint-
ed” by unfair labor practices, see Lexus of Concord, Inc.,
343 NLRB 851, 854 (2004), he had not found any unfair
labor practices in this case. Pointing to the decertifica-
tion petition and the separate petition signed by the Re-
spondent’s employees, the judge concluded that the Re-
spondent had presented sufficient evidence of the Un-
ion’s loss of majority support to entitle the Respondent to
withdraw recognition from the Union completely.
Therefore, the judge found, and our dissenting colleague
agrees, that the Respondent was equally entitled to take
the “lesser path” of suspending negotiations over the
successor collective-bargaining agreement on a tempo-
rary basis.
We disagree. In Levitz, the Board held that an em-
ployer may unilaterally withdraw recognition from an
incumbent union if the union has actually lost the support
of the majority of the bargaining unit employees. Id. at
723. When the employer withdraws recognition, it does
so at its own peril, and will be required to show actual
loss of majority support if the union files an unfair labor
practice charge over the withdrawal. Id. at 725. Alterna-
tively, an employer that has evidence of actual loss of
majority support may decide not to withdraw recogni-
tion, but rather to seek an RM election to determine
whether or not the union still enjoys majority support.
Id. at 724, 726. The employer remains obligated to con-
tinue bargaining with the union while the RM petition is
processed. Levitz, supra, at 726–727.
Levitz does not specifically address whether an em-
ployer that continues to recognize the union may never-
theless unilaterally refuse to bargain over a successor
contract. However, the Board held in Levitz that if an
employer chooses to continue to recognize the union and
file an RM petition, rather than withdraw recognition, the
employer is obligated to continue to bargain. Id. Here,
the Respondent continued to recognize the Union, but
unilaterally chose which parts of the bargaining relation-
ship it would honor, thereby refusing to fulfill all of its
normal bargaining obligations. We cannot countenance
this selective approach to a collective-bargaining rela-
tionship. Instead, we find that so long as the Respondent
continued to recognize the Union, it was obligated to
fulfill all aspects of its bargaining obligations.3 Its re-

3 Our dissenting colleague asserts that our decision forces upon em-
ployers the “Hobson’s Choice” of either negotiating with a non-
majority union, and therefore taking actions inconsistent with Secs.
8(a)(2) and 9(a) of the Act, or withdrawing recognition completely and
fusal to bargain over the successor contract therefore
violated Section 8(a)(5) and (1) of the Act.
When an employer has a duty to bargain, it has a duty
to fulfill all of its mandatory bargaining obligations. An
employer that fails to do so destabilizes the bargaining
process in two important aspects. First, an employer that
unilaterally removes certain bargaining subjects from
negotiation can gain an advantage by excluding those
subjects on which it may be more likely to give conces-
sions to the union, reducing the likelihood that the parties
will find common ground. Similarly, permitting an em-
ployer to unilaterally choose which parts of the collec-
tive-bargaining relationship to honor would allow the
employer to continue to recognize and bargain with the
incumbent union only in those areas where the employer
holds an advantage, whether legal or economic, thus re-
ducing the possibility of compromise and the ability of
the relationship to function effectively. Cf. Endo Labor-
atories, Inc., 239 NLRB 1074, 1075 (1978) (recognizing
“the kind of ‘horsetrading’ or ‘give-and-take’ that char-
acterizes good-faith bargaining”). And that unbalanced
playing field could persist in the event the employer nei-
ther withdraws recognition nor files an RM petition.
Second, and relatedly, allowing an employer to unilater-
ally dictate which subjects the parties can bargain un-
dermines the union, making it appear ineffective and
weak to the employees. Thus, permitting bargaining only
in those areas that the employer chooses would deny the
union a fair opportunity to demonstrate its continued
effectiveness, a matter of particular concern if the em-
ployer eventually does file an RM petition. These effects
are wholly inconsistent with the Act's policy to foster
stable collective bargaining relationships.
The Board’s decision in Lexus of Concord, Inc., supra,
does not, as the Respondent and our dissenting colleague
contend, require a different result. In Lexus, an employer
briefly suspended all bargaining with an incumbent un-
ion after receiving a letter from a majority of union em-
ployees stating that they did not want to be represented
by the union. Id. at 851. The Board examined this con-
duct in assessing whether it “tainted” a later decertifica-
tion petition, finding that under the specific circumstanc-
es a brief suspension of all bargaining was a reasonable
response that did not amount to an unlawful refusal to

facing protracted litigation under the Levitz standard. However, the
Board noted in Levitz that “even an employer that has evidence of
actual loss of majority support will not violate Sec. 8(a)(2) if it files an
RM petition and continues to recognize the union while election pro-
ceedings are ongoing.” Supra, at 724, 726 fn. 52. Accordingly, requir-
ing an employer to honor all of its bargaining obligations while waiting
for the results of an election, even in the case of objective evidence that
the union has lost majority support, does not require employers to risk
violating the Act.
T-MOBILE USA, INC. 3
bargain. Id. at 853–854. The Board emphasized that the
employer suspended bargaining during an approximately
one-month period in which it had to deal with a letter
from employees asking it to suspend negotiations with
the union, a refusal-to-bargain charge, the Board’s issu-
ance of the Levitz decision, and a decertification petition.
The Board found the Respondent’s conduct reasonable
given its “clear need to understand the situation.” Id. In
contrast, the Respondent here has indefinitely suspended
bargaining over one matter of its choosing, rather than a
temporary hold on all bargaining.
Finally, we emphasize that nothing in our decision
precludes an employer from withdrawing recognition
when it has objective evidence that the union has indeed
lost majority support; nor does our decision preclude an
employer from seeking an RM election when it has
good-faith uncertainty as to the union’s majority status.
What an employer may not do is continue to recognize
the union while failing to honor all of its bargaining obli-
gations.4
For all of the above reasons, we reverse the judge and
find that the Respondent violated Section 8(a)(5) and (1)
by failing and refusing to bargain with the Union over
the successor collective-bargaining agreement.
ORDER
The National Labor Relations Board orders that Re-
spondent, T-Mobile USA, Inc., Bloomfield, Connecticut,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain over a successor
collective-bargaining agreement with the Communica-
tions Workers of America and its affiliated Local 1298
(the Union) as the exclusive collective-bargaining repre-
sentative of employees in the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

4 The result here is consistent with the Board’s longstanding policy
disfavoring the practice of “piecemeal bargaining” during contract
negotiations. As the Supreme Court has acknowledged, “it is difficult
to bargain, if, during negotiations, an employer is free to alter the very
terms and conditions that are the subject of negotiations.” Litton Fi-
nancial Printing Division v. NLRB, 501 U.S. 190, 198 (1991). Alt-
hough the context of the present case is different—the Respondent
refused to bargain over a successor contract at all, while in “piecemeal
bargaining” cases the employer engages in bargaining but implements a
proposal on a single issue before reaching overall impasse or agree-
ment—the underlying policy concerns are similar: allowing employers
to cherry-pick the subjects of bargaining gives them an unfair ad-
vantage in negotiations and destabilizes the bargaining process.
(a) Unless and until the Union is decertified or the Re-
spondent lawfully withdraws recognition, bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the following appropriate
unit concerning terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:
All full-time and regular part-time field technicians,
switch technicians and material handlers employed by
T-Mobile USA in the State of Connecticut, but exclud-
ing all other employees, contractors and supervisors
and guards as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Bloomfield, Connecticut, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
1, after being signed by Respondent's authorized repre-
sentative, shall be posted by Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if Respondent customarily com-
municates with its employees by such means. Reasona-
ble steps shall be taken by Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. If Respondent has gone out of business or
closed the facility involved in these proceedings, Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by Respondent at any time since
October 8, 2014.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 1 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that Respondent has taken to
comply.
Dated, Washington, D.C. February 2, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
ACTING CHAIRMAN MISCIMARRA, concurring in part and
dissenting in part.
I agree with my colleagues that the Respondent did not
violate Section 8(a)(5) and (1) of the National Labor Re-
lations Act (NLRA or Act) by unilaterally changing its
employee handbook in 2014.1 Unlike my colleagues,
however, I would affirm the judge’s dismissal of the al-
legation that the Respondent violated Section 8(a)(5) and
(1) of the Act by suspending negotiations over a succes-
sor collective-bargaining agreement in October 2014. I
would therefore adopt the judge’s dismissal of the com-
plaint in its entirety.
The facts of this case, which are not in dispute, are as
follows. The Respondent and the Union were party to a
collective-bargaining agreement effective July 31, 2012,
through May 31, 2014 (the CBA). On March 28, 2014,
an employee in the bargaining unit filed a decertification
petition supported by a showing of interest, meaning that
at least 30 percent of employees in the unit no longer
wanted the Union to represent them.2 Thereafter, the

1 One of the handbook provisions at issue in the 2014 handbook
stated that employment with the Respondent is “at will,” and the other
set forth an “attendance / absenteeism” policy. These provisions were
the same as the “at will” and attendance provisions in the two prior
iterations of the handbook, which issued in 2013 and 2012, respective-
ly. In other words, the Respondent did not change those provisions in
2014, and therefore it did not violate Sec. 8(a)(5). See NLRB v. Katz,
369 U.S. 736 (1962) (holding that an employer’s unilateral change in
terms and conditions of employment violates Sec. 8(a)(5)).
2 Under the Board’s contract-bar doctrine, collective-bargaining
agreements of definite duration “for terms up to 3 years will bar an
election for their entire period.” General Cable Corp., 139 NLRB
1123, 1125 (1962). However, during the term of a bar-quality con-
tract—i.e., a contract that satisfies certain basic requirements set forth
in Appalachian Shale Products Co., 121 NLRB 1160 (1958)—the
Board will process a petition filed during the 30-day period beginning
90 days and ending 60 days before the date the contract expires or its
third anniversary date, whichever is sooner. See General Cable, 139
NLRB at 1128 fn. 16. The decertification petition filed on March 28,
2014, was filed during the 30-day open period prior to the contract’s
expiration. However, the petition has not been processed because the
Region has held it in abeyance pursuant to the Board’s blocking-charge
policy. For reasons expressed in the dissenting views to the Board's
representation-election rule, 79 Fed. Reg. 74308 at 74430-74460 (Dec.
15, 2014) (dissenting views of Members Miscimarra and Johnson), I
believe the Board should reconsider its blocking-charge policy, but I
Respondent received a petition signed by 13 of the 20
employees in the bargaining unit stating that the signato-
ry employees did not want to be represented by the Un-
ion. Leading up to and for several months following the
CBA’s expiration, the Respondent met and bargained
with the Union for a successor contract. On October 8,
2014, however, the Respondent notified the Union in
writing that it was suspending negotiations for a new
CBA until an election could be conducted to determine
the Union’s majority status. The Respondent told the
Union that it would abide by the terms of the expired
CBA “as well as any other interim bargaining obligations
that may arise.” Thus, as my colleagues acknowledge,
the Respondent continued to negotiate with the Union
over a variety of matters, including stock grants, changes
to certain policies, and changes to reporting mileage
when using company vehicles. The Respondent also
processed a discharge grievance, furnished information at
the Union’s request, and made itself available to speak
with the Union about matters affecting unit employees.
On these facts, my colleagues hold that the Respondent
violated Section 8(a)(5) when it suspended bargaining
for a successor CBA. I disagree. Unquestionably, the
Respondent was confronted with a bona fide question
regarding the Union’s lack of majority support among
unit employees. Indeed, the evidence available to the
Respondent would have permitted the Respondent to
withdraw recognition entirely. See Levitz Furniture
Company of the Pacific.3 This makes it unreasonable for
the Board to conclude that the Respondent violated the
Act by suspending one aspect of the bargaining relation-
ship—negotiations for a successor collective-bargaining
agreement. As the judge correctly observed: “If the em-
ployer could have legally withdrawn recognition, then . .
. it could have taken the lesser path of suspending nego-
tiations on a temporary basis.”
This “lesser path,” which the Respondent took, is fur-
ther supported by the Board’s decision in Lexus of Con-
cord, Inc.,4 in which the Board found that the employer
acted reasonably and lawfully by temporarily suspending
bargaining entirely for a 1-month period after receiving a
letter signed by a majority of its unit employees indicat-
ing that they no longer wanted the union to represent
them.
In the instant case, the Respondent took an even more
restrained approach than what the employer did in Lexus

acknowledge that the Board has declined to materially change this
policy, and no party has asked us to do so in this proceeding.
3 333 NLRB 717 (2001). I do not here reach or pass on the merits
of the “actual loss of majority support” standard the Board adopted in
Levitz.
4 343 NLRB 851, 853–854 (2004).
T-MOBILE USA, INC. 5
of Concord. Here, after receiving objective proof that the
Union had lost majority support, the Respondent notified
the Union that it would continue to recognize and bar-
gain over all mandatory subjects, but until an election
could be conducted—as noted above, the pending elec-
tion petition was blocked—it would suspend bargaining
with the Union for a successor CBA.
My colleagues’ characterization of the Respondent’s
conduct defies common sense. According to the majori-
ty, the Respondent adopted a “selective approach to a
collective-bargaining relationship” that, in their view, is
sure to “destabilize[] the bargaining process.” This con-
tention fails to recognize that the Union’s representative
status was rendered doubtful—and was quite possibly
negated—by what occurred here: the Respondent’s re-
ceipt of “objective evidence that the [U]nion had lost
majority support.”5 There is no resemblance between the
Respondent’s extremely restrained, principled actions in
the instant case and what my colleagues attempt to por-
tray as an arbitrary picking-and-choosing among differ-
ent obligations imposed by our statute.
In short, the Respondent’s actions—limited to holding
in abeyance the negotiation of a successor contract when
the available evidence indicated that the Union no longer
had majority employee support—otherwise left the bar-
gaining relationship intact. The Respondent continued to
bargain regarding a range of mandatory bargaining sub-
jects, it preserved the status quo during the hiatus be-
tween contracts, and it minimized any perception that the
Union was weak or impotent.
Ironically, the Respondent’s actions advanced the goal
of promoting stability in labor relations, which is a re-
sponsibility placed on the Board.6 Conversely, my col-
leagues here effectively find that the Respondent’s only
lawful options were a Hobson’s choice between (i) nego-
tiating a new collective-bargaining agreement covering
employees who no longer wanted the Union to represent
them, which would be inconsistent with Section 8(a)(2)
and 9(a) of the Act, or (ii) completely withdrawing
recognition from the Union, which would produce much
more significant changes and would likely be subject to

5 Levitz, 333 NLRB at 725. No party has challenged the sufficiency
of the Respondent’s objective evidence of lost majority support, nor did
any party file exceptions to the judge’s finding that the Respondent had
such objective evidence.
6 Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362–363
(1949) (“To achieve stability of labor relations was the primary objec-
tive of Congress in enacting the National Labor Relations Act.”) (cita-
tions omitted); NLRB v. Appleton Elec. Co., 296 F.2d 202, 206 (7th Cir.
1961) (A “basic policy of the Act [is] to achieve stability of labor rela-
tions.”) (citation omitted).
protracted litigation under the Levitz standard.7 In any
event, the Respondent’s actions here were consistent
with—and my colleagues’ decision is contrary to—the
Board’s statement in Levitz that “Board-conducted elec-
tions are the preferred way to resolve questions regarding
employees’ support for unions.”8
For the foregoing reasons, I would find that the Re-
spondent acted lawfully by suspending negotiations with
the Union over a successor CBA. Accordingly, as to this
aspect of the majority’s decision, I respectfully dissent.
Dated, Washington, D.C. February 2, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

7 My colleagues disagree that their decision presents the Respondent
with a Hobson’s choice between two contradictory options (i.e., negoti-
ating a new collective-bargaining agreement with a union that poten-
tially lacks majority employee support, on the one hand, and complete-
ly withdrawing recognition pending an election in which the Union
may, in fact, establish renewed majority support). Here, my colleagues
rely on the statement by the Board in Levitz that “an employer that has
evidence of actual loss of majority support will not violate Section
8(a)(2) if it files an RM petition and continues to recognize the union
while election proceedings are ongoing.” 333 NLRB at 724. As noted
previously, I do not pass on the merits of Levitz. Furthermore, this
statement from Levitz does not alter the fact that the employer’s interim
negotiation of a collective-bargaining agreement may, in fact, be with a
union that lacks majority support, which would be inconsistent with
Sec. 8(a)(2) and Sec. 9(a), notwithstanding the Levitz statement quoted
above. Moreover, it bears emphasis that my colleagues find that the
Respondent here violated the Act even though it did continue to recog-
nize the Union. The Respondent merely suspended negotiations for a
successor contract pending the outcome of the election. Under existing
law, if the continuation of negotiations culminated in a new collective-
bargaining agreement, this would have barred any election or other
challenge to the Union’s majority status for up to three more years,
General Cable Corp., supra, even if the Union no longer enjoyed ma-
jority support. For the reasons stated above, I believe the Respondent’s
actions were consistent with our statute, and—in contrast with the
actions required by my colleagues’ decision today—Respondent’s
conduct was much more aligned with the Board’s responsibility to
safeguard employee free choice and foster labor relations stability.
8 Levitz, 333 NLRB at 723.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain with the
Communications Workers of America and its affiliated
Local 1298 (the Union) as the exclusive collective-
bargaining representative of our employees in the bar-
gaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, unless the Union is decertified or we lawful-
ly withdraw recognition, bargain with the Union as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
terms and conditions of employment; and if an under-
standing is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time field technicians,
switch technicians and material handlers employed by
T-Mobile USA in the State of Connecticut, but exclud-
ing all other employees, contractors and supervisors
and guards as defined in the Act.
T-MOBILE USA, INC.
The Board’s decision can be found at
www.nlrb.gov/case/01-CA-123183 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Rick Concepcion Esq., for the General Counsel.
Mark Theodore, Esq. and Irina Constantin, Esq., for the Re-
spondent.
Thomas W. Meiklejohn Esq. and Nicole M. Rothgeb Esq., for
the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Hartford, Connecticut, on May 8, 2015. The charges
and amended charges were filed on February 25, March 14,
April 29, June 3, and October 29, 2014. Based on those charg-
es, Region 1 of the National Labor Relations Board issued a
consolidated complaint on October 31, 2014. This alleged as
follows:
1. That since August 2, 2011, the Respondent has recognized
the Communications Workers of America (the National Union)
and Local 1298 as the representatives of certain employees in
Connecticut.
2. That the most recent collective-bargaining agreement was
effective from July 31, 2012, through May 31, 2014.
3. That since January 16, 2014, and prior to the contract’s
expiration, the Respondent issued an employee handbook ap-
plicable to the bargaining unit employees that states:
(a) Employment at TMUS is “at will” which means that it is
not for any specific duration and that tan employee or the
Company may terminate the employment relationship at any
time, for any reason, with our without notice. No one except
the President or Chief Executive Officer of TMUS has the au-
thority to change any employee’s at will employment status,
to make any agreement that an employee will be employed by
TMUS for any set period of time, or to make any other prom-
ises or commitments that are contrary to this policy of at will
employment. For any such agreement, promise or commit-
ment to be binding on the Company, and to be valid and en-
forceable against it, that agreement, promise of commitment
must be part of a written contract signed by an employee and
the President or Chief Executive Officer of TMUS and, if ap-
plicable, have the approval of the Compensation Commit-
tee…
4. That since January 16, 2014, the Respondent, by issuing
and maintaining the at-will policy described above, informed
bargaining unit employees that the selection of a bargaining
representative was futile.
5. That since January 16, 2014, the Respondent, by maintain-
ing the “at will” policy has failed to continue in effect the terms
of the expired contract.1
6. That since May 29, 2014, the Respondent has unilaterally
changed the notice requirements for the use of paid time off,
thereby modifying article XVIII of the agreement.
7. That the foregoing changes were made during the term of
the collective-bargaining agreement and were made without the
consent of the Union, it therefore is contended that the Re-
spondent violated Section 8(d) and 8(a)(5) of the Act.

1 The complaint asserted that the revised handbook provisions also
modified the company’s policy regarding absenteeism in that they
provided that an employee may be deemed to have abandoned his em-
ployment if absent for 3 or more days without notice. However, this
contention is not mentioned in either the General Counsel’s or the
Charging Party’s Brief. I therefore deem that this allegation has been
abandoned.
T-MOBILE USA, INC. 7
8. That since October 8, 2014, the Respondent has refused to
meet with the Union to negotiate a successor collective-
bargaining agreement.
Among other things, the Respondent asserts that it did not
modify the collective-bargaining agreement and that its notice
to 40,000 nonunit employees regarding their status as “at will”
employees, cannot be construed as changing the status of the
employees covered by the union contract. The Respondent also
asserts that it has not withdrawn recognition and has continued
to notify and offer to bargain with the Union regarding any
changes in working conditions. Its position is that it has merely
suspended bargaining until a question of representation is re-
solved via an election.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is admitted and I find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. I also find that the Unions are labor organi-
zations within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent is a phone service provider that employs
about 40,000 employees throughout the United States. Most of
these employees are not represented by any labor organization.
Pursuant to an election held in 2011, the Respondent recog-
nized the CWA and its affiliated Local 1298 as the exclusive
collective-bargaining representative in a unit consisting of:
All full-time and regular part-time field technicians switch
technicians and material handlers employed by T-Mobile
USA in the State of Connecticut, but excluding all other em-
ployees, contractors and supervisors and guards as defined in
the Act.
For the calendar year 2014, there were 20 bargaining unit
employees, including about six former employees of Metro-
PCS who were added to the bargaining unit in December 2013.
The parties stipulated that David Karpinski held the position
of Market Manager, Connecticut, for T-Mobile’s Engineering
and Operations in the State of Connecticut. They also stipulated
that in that capacity, Karpinski has been a supervisor within the
meaning of Section 2(11) of the Act and an agent within 2(13)
of the Act.
It also was stipulated that Christopher Cozza and Christopher
Cocola have been union stewards for Local 1298 and have been
designated as contact persons for bargaining unit employees by
the local union.
The Board certified the union on August 2, 2011. Bargain-
ing commenced in the fall of 2011, and concluded in the sum-
mer of 2012. A collective-bargaining agreement was reached
in July 2012, and that contract ran from July 31, 2012, through
May 31, 2014. This contract was executed by William Hender-
son and Paul Bouchard on behalf of the Unions and by Mark
Appel, who is the Respondent’s area director.2 A number of
provisions of that contract are relevant to the issues in this case.
The contract contains a broad management rights clause,
which among other things, states that management has the right
“to suspend, discipline, discharge, demote or take any other
disciplinary action for just cause.” The management rights
clause also states: “The foregoing management rights are ex-
pressly reserved to be decided by the company on a unilateral
basis and shall not be subject to any dispute resolution proce-
dure.”
At article XVIII there is a clause that provides that employ-
ees are eligible to participate in various company benefits, in-
cluding paid time off. It also states that: “During the term of
this Agreement, the Employer shall have the right, in its sole
discretion, to alter or eliminate entirely these benefits currently
offered, provided such revisions match those of employees
outside the bargaining unit.” At paragraph 2, the contract states
that the “Company will give notice to the Union of any such
changes,” and that the “Company’s right to alter or eliminate
these benefits shall not be subject to article XII—Grievance and
Arbitration.”
In addition, the contract contains a seniority clause that af-
fects layoffs and recalls. It states inter alia, that “if skill and
ability are equal, in the Employer’s opinion, then seniority shall
prevail. The Employer shall not make decisions on the skill
and ability in a capricious or arbitrary manner.”
Finally, the contract contains a grievance/arbitration clause
at article XII. Coupled with that part of the management rights
clause that allows disciplinary actions vis a vis employees
based on “just cause,” the contract therefore permits an arbitra-
tor in a grievance proceeding to conclude, for example, that the
discharge of an employee was not for just cause and therefore
that the employee would be entitled to reinstatement and back-
pay.
It should also be noted that although the Company, pursuant
to article XVIII (described above), has the right to alter or mod-
ify various benefits during the life of the collective-bargaining
agreement, there is a limitation of that right by virtue of the
Company’s obligation to notify the Union of such changes.
The contract described above expired on May 31, 2014, and
no new contract has been negotiated. Although the General
Counsel is asserting that certain limited provisions of the con-
tract have been unilaterally changed, the evidence is that for the
most part, the terms and conditions of employment as they
existed prior to the contract’s expiration, have remained in
effect.
In August 2012, and subsequently in August 2013, the Com-
pany revised its nationwide employee handbook. This was
accomplished by posting the changes on its company-wide
website that was available to its 40,000 employees. Needless to
say, the changes were made available to the 20 employees who

2 The parties stipulated that Mark Appel was neither the president of
the company, the chief executive officer, nor a member of the compa-
ny’s executive office. There is however, no doubt that Mr. Appel had
authority to execute this contract on behalf of the employer and the
Respondent does not contend otherwise. At no time after the contract’s
execution, has the Respondent asserted that the contract was invalid or
inoperative because it was executed by a person without authority.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
were covered by the collective-bargaining agreement in Bloom-
field, Connecticut. These postings contained language to the
effect that employment with the Respondent was on an “at
will” basis. As far as I know, there was no discussion between
the Union and the Respondent, during the term of the contract,
as to what effect, if any, these handbook “at will” provisions
would have on the “just cause” provision contained in the col-
lective-bargaining agreement.
On or about January 16, 2014, the Respondent again posted a
newly revised handbook covering its employees on a nation-
wide basis. However, as to its California and Puerto Rico em-
ployees, the posting indicated that they would be covered by
slightly different provisions. Neither the notices posted on Jan-
uary 16 and 20, nor the handbook itself, state that certain provi-
sions would not apply to employees covered by a collective-
bargaining agreement.
This newly revised handbook included the provision that
employment was considered to be on an “at will” basis. Fur-
ther, employees were notified that when new employees were
hired, they would be required to sign a statement acknowledg-
ing their “at will” status. Neither the handbook nor the notices
state that this “at will” status would be applicable only to non-
union employees. On the other hand, there is nothing in the
handbook or the notices that states that the Bloomfield employ-
ees’ contract would not be honored including the griev-
ance/arbitration provisions which permit the Unions to contest
whether a discharge or other adverse action was taken without
“just cause.”
No employee at the Bloomfield facility covered by the col-
lective-bargaining agreement has been required to sign any
statement acknowledging that his or her employment is on an
“at will” basis.
The General Counsel also contends that prior to the expira-
tion of the contract (May 31, 2014), the Respondent modified
the contract by failing to notify the Union regarding a change it
made to the employees’ paid time-off benefits. In this regard,
the alleged change to the collective-bargaining agreement is not
the change in the actual time-off benefits, but rather the failure
to give notice to the Union before making the change. The
General Counsel concedes that pursuant to article XVIII, the
Respondent had the right to make the change, provided (a) that
the change offered unit employees the same benefit given to
employees outside the bargaining unit and (b) that the Compa-
ny gave notice to the Union of the change. My reading of this
provision is that it only requires notice and does not require
bargaining about a benefit change.
Under the old policy, effective during the term of the con-
tract, employees were required to provide 1 day of advance
notice for 1 day of paid time off; 72 hours of notice for 2 paid
days off; and 5 days of notice for 3 or more days of paid time
off.
On May 29, 2014, Karpinski notified unit employees that
they would be required to provide 2 weeks of notice if they
were asking for 4 or more days of paid time off. This change
was announced 2 days before the contract’s expiration.
Although shop stewards, as unit employees, were aware of
the May 29 notice, which they forwarded to the Union, no offi-
cial notice was given by the Respondent directly to the CWA or
to the local Union.
On March 28, 2014, one of the employees filed a decertifica-
tion petition in 01–RD–012542 seeking an election to deter-
mine if a majority of the employees in the unit wished to be
represented by the Union. That petition was supported by a
showing of interest, which means that at least 30 percent of the
bargaining unit employees signed something to indicate that
they no longer wished to be represented. The decertification
petition has not been dismissed, but its processing has been
blocked by this unfair labor practice case.
At some time later, the Respondent received a petition to re-
move the Union as the representative of the employees. This
was signed by a majority of the employees in the bargaining
unit.
Notwithstanding the filing of the RD petition and the receipt
of the employee petition, the Respondent has not withdrawn
recognition from the Union. And in fact, it continued to bar-
gain for a period of time and continues to deal with the Union
with respect to various grievances and other matters.
On October 8, 2014, Mark Theodore, the Respondent’s at-
torney sent the following letter to Patrick O’Neil, which in
effect, suspended contract negotiations.
This letter is to inform you that T-Mobile has received from
the employees in the Connecticut Area market, objective evi-
dence of a loss of majority support of bargaining unit employ-
ees, a majority of whom no longer wish to be represented by
the CWA. Under NLRB case law the Company would be
privileged to withdraw recognition at any time after the expi-
ration of the parties’ agreement…. The collective bargaining
agreement expired on May 31, 2014.
The Company always has maintained that an election is the
best course of action when it comes to deciding questions
concerning union representation and twice has been willing to
proceed to such an election in this bargaining unit. As you are
aware, employees in the bargaining unit filed a timely certifi-
cation petition several months ago. Unfortunately, their efforts
to seek a simple election have been blocked by the CWA’s
unfair labor practice charges.
Given the CWA’s lack of majority status, the Company is go-
ing to suspend bargaining while the question concerning rep-
resentation is sorted out.
If the election on the employee petition is held, and should the
Union prevail, bargaining will resume. In this period of sus-
pension, the Company will abide by the terms of the expired
collective bargaining agreement, as well as any other interim
bargaining obligations that may arise.
By letter dated October 15 2014, O’Neil wrote to Theodore as
follows:
I have one question about your letter. You state that the
Company will abide by the terms of the expired collective
bargaining agreement. Does this include the just clause provi-
sion of the contract? Is the Company prepared to arbitrate any
disputes that arise concerning discipline, despite the suspen-
sion of negotiations?
T-MOBILE USA, INC. 9
On October 27 2014, Theodore replied:
In your letter, you asked what suspension of bargaining for a
successor contract means. It is simple: T-Mobile will abide by
the law just as it always has done. This means that certain
provisions of the parties’ expired contract will remain un-
changed by force of law: other provisions do not survive con-
tract expiration.
Although Theodore might be accused of being a bit coy, it
would be clear to any experienced labor relations practitioner
that in accordance with present law, an arbitration clause, un-
like most other provisions of a collective-bargaining agreement,
does not continue after the contract’s expiration.
III. ANALYSIS
Among other things, Section 8(d) provides that when a con-
tract is made, the duty to bargain “shall not be construed as
requiring either party to discuss or agree to any modification of
the terms and conditions contained in a contract for a fixed
period, if such modification is to become effective before such
terms and conditions can be reopened under the provisions of
the contract” The purpose of this provision, (enacted to modify
the decision in NLRB v. Sands Mfg. Co., 306 U.S. 332, 342
(1939)), was to insure a degree of stability once the parties to a
collective-bargaining relationship have established a contract
for a fixed term. (A bargain made is a bargain to be kept). To
allow either party to require the other to bargain about an issue
that has been set for a fixed period of time, would, in a sense,
make the agreement somewhat illusory and insert a degree of
instability into the relationship between the parties. (There is,
however, nothing unlawful if both parties to a collective-
bargaining agreement voluntarily and mutually agree to a mid-
term modification).
Pursuant to Section 8(a)(5), the Act also imposes a duty to
bargain when an employer chooses to make a change in an
existing term and condition of employment where that change
is not covered by terms and conditions of a collective-
bargaining agreement. This obligation exists during the term of
an existing contract and, in most respects, after the contract
expires, so long as a union remains the legally recognized bar-
gaining representative. The duty to bargain in such cases in-
volves the obligation to give notice to a union about the desired
change and a reasonable opportunity to bargain about the
change. However, the duty to bargain attaches only to changes
that materially affect terms and conditions of employment.
It is the contention of the General Counsel and the Charging
Party that by issuing a new employee handbook in January
2014, the Respondent effectively modified the existing collec-
tive-bargaining agreement by telling the bargaining unit em-
ployees that they were “at will” employees and that they could,
in effect, be terminated with or without just cause.
The Respondent asserts that this claim is incorrect and that a
handbook written for and issued to 40,000 employees, was
never intended to modify, nor could it legally modify, the terms
of the existing collective-bargaining agreement. It notes that
there is no evidence to suggest that the Company by any of its
agents or representatives, ever directly told, claimed, or sug-
gested to the Union, or to the employees, that the griev-
ance/arbitration or the “just cause” provisions of the contract
had been changed, modified or superseded by the handbook
provisions. And if the Company had chosen to take that posi-
tion, there were plenty of opportunities to do so when union
representatives met with the Company to discuss a variety of
matters after the handbook was issued.
I don’t think that the issuance of an employee handbook that
included a statement reiterating a long standing company asser-
tion that it considers its employees to be “at will” employees,
can reasonably be construed as an attempt to modify the “just
cause” provisions of the collective-bargaining agreement,
which in this case, covers 20 out of about 40,000 employees.
There is no evidence of any communication by the Company to
the Union or to the employees, that the revised handbook was
somehow meant to nullify any of the terms of the collective-
bargaining agreement. In my opinion, this assertion is a crea-
tive but incorrect interpretation of a document that was clearly
not intended to modify, alter or change the existing contract.
Based on the above, I conclude that by issuing the handbook
with the statement about “at will” employment, the Respondent
has not violated Sections 8(a)(5) and 8(d) of the Act. I also
conclude that the Respondent has not notified employees that
bargaining would be futile.
On May 29, 2014, the Company notified the bargaining unit
employees that there were some changes in the amount of no-
tice time that would be required if they wanted to take 4 or
more days of paid time off. Basically, they were required to
give 5 more days of notice than had previously been required.
(Two weeks instead of 5 days).
The General Counsel and the Charging Party do not contend
that the Company could not make the change in the paid time
off policy. Rather, they contend that the Respondent modified
the existing contract by failing to give notice of the change.
As described above, the contract allows the Company, in its
sole discretion, to change existing benefits, including paid time
off, provided that the change is the same as given to nonbar-
gaining unit employees; and provided that it gives notice of the
change to the Unions. The contract does not require the Com-
pany to maintain the existing benefit until such time as the par-
ties have either reached an impasse or reached an agreement on
the change. Indeed, it does not require bargaining at all.
In my opinion, this was a change in a contractual provision
and it did occur a couple of days before the contract expired.
So technically, this could be considered a modification of the
existing contract. Nevertheless, it is also my opinion, that this
change, which related only to the contractual notice procedure,
was not sufficiently material so as to justify a finding that the
Respondent violated the Act. In short, I conclude that this al-
leged violation was de minimus.
Finally, the complaint alleges that the Respondent has un-
lawfully suspended negotiations for a contract in violation of
Section 8(a)(5) of the Act.
In this regard, the facts show that on October 8, 2014, the
Company, by its counsel, wrote a letter to the unions suspend-
ing negotiations until such time as an election determined that
the union still represented a majority of the unit employees.
The Company did not withdraw recognition from the unions
and since October 8, it has continued to deal with the unions on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
a variety of matters affecting the terms and conditions of the
employees, including grievances.
The Respondent’s defense is based on the fact that an em-
ployee filed a decertification petition and that it also received a
petition from more than 50 percent of the unit employees indi-
cating their desire to not be represented by the Unions.
In Levitz Furniture Company of the Pacific, 333 NLRB 717
(2001), the Board held that an employer could not legally with-
draw recognition from an incumbent union based only on its
“good faith” belief that the union no longer represented a ma-
jority of the bargaining unit employees. However, the Board
did hold that by “demonstrating good-faith reasonable uncer-
tainty (rather than disbelief) as to unions’ continuing majority
status, an employer could file an RM petition.” (Thereby per-
mitting the Board to hold a secret ballot election). The Board
also held that an employer could legally withdraw recognition
if it could prove by objective evidence that a union had lost its
majority support. As to the legality of an employer’s with-
drawal of recognition, the Board stated:
[W]e hold that an employer may rebut the continuing pre-
sumption of an incumbent union’s majority status, and unilat-
erally withdraw recognition, only on a showing that the union
has, in fact, lost the support of a majority of the employees in
the bargaining unit. We overrule Celanese and its progeny in-
sofar as they hold that an employer may lawfully withdraw
recognition on the basis of a good-faith doubt (uncertainty or
disbelief) as to the union’s continued majority status.
We have also decided to allow employers to obtain RM elec-
tions by demonstrating good-faith reasonable uncertainty (ra-
ther than disbelief) as to unions’ continuing majority status.
We adopt this standard to enable employers who seek to test a
union’s majority status to use the Board’s election proce-
dures—in our view the most reliable measure of union sup-
port—rather than the more disruptive process of unilateral
withdrawal of recognition.3

3 While proof that a union lacks majority support will allow an em-
ployer to completely withdraw from its bargaining obligation, evidence
showing only doubt as to majority status will only permit an employer
to ask the Board to hold an election. In the latter instance, even where
an election is scheduled, the employer is still required to negotiate in
good faith; albeit any contract made will be deemed to be null and void
if the Board thereafter certifies that the union failed to obtain a majority
We emphasize that an employer with objective evidence that
the union has lost majority support—for example, a petition
signed by a majority of the employees in the bargaining
unit—withdraws recognition at its peril. If the union contests
the withdrawal of recognition in an unfair labor practice pro-
ceeding, the employer will have to prove by a preponderance
of the evidence that the union had, in fact, lost majority sup-
port at the time the employer withdrew recognition. If it fails
to do so, it will not have rebutted the presumption of majority
status, and the withdrawal of recognition will violate Section
8(a)(5).
Notwithstanding the presentation of objective evidence
showing that a union has, in fact, lost its majority status, an
employer’s withdrawal of recognition may still be unlawful, if
that withdrawal is tainted by other unfair labor practices. But
in order to show a “taint” the Board has held that “there must
be specific proof of a causal relationship between the unfair
labor practice and the ensuing events indicating a loss of sup-
port.” See Lexus of Concord, Inc., 343 NLRB 851 (2004), and
cases cited therein.
In the present case, the employer has presented evidence
showing that the unions have lost their majority support. Fur-
ther, as I have concluded that the Respondent has not engaged
in the alleged unfair practices, there is no reason to find that the
loss of majority status was caused by those alleged violations.
Based on the above, it would be permissible to conclude that
the employer could have completely withdrawn recognition.
Nevertheless, it chose not to do so; instead merely suspending
contract negotiations until an election could be held to deter-
mine majority status or lack thereof. If the employer could
have legally withdrawn recognition, then surely it could have
taken the lesser path of suspending negotiations on a temporary
basis. I therefore conclude that the Respondent has not violated
the Act in this respect.
CONCLUSION
For the reasons stated above, I conclude that the complaint
should be dismissed.
Dated, Washington, D.C. August 3, 2015

of the valid votes counted. In this case, since a decertification petition
had already been filed, there was no need for the Employer to file its
own election petition.