# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT



## No. 22 -1275 September Term, 2023

F ILED O N : N OVEMBER 3, 2023

T-M OBILE USA, I NC ., P ETITIONER

v.

N ATIONAL L ABOR R ELATIONS B OARD , R ESPONDENT

C OMMUNICATIONS W ORKERS OF A MERICA , AFL

- CIO, I NTERVENOR

Consolidated with 22-1309

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Before: M ILLETT and P ILLARD , Circuit Judges , and R OGERS , Senior Circuit Judge

J U D G M E N T

This appeal was considered on the record from the National Labor Relations Board and on the briefs of the parties. See D.C. Cir. R. 34(j). The Court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). It is hereby

ORDERED AND ADJUDGED that the petition for review be DENIED and the National Labor Relations Board’ s cross -application for enforcement be GRANTED

.

In 20 15 , T

- Mobile USA, Inc. (T

- Mobile) reprimanded call center employee Chel s ea Befort for sending email s inviting employees to join union

- organizing efforts. In Communications Workers of Am erica v. NLRB ( C WA ) , 6 F.4th 15 (D.C. Cir. 2021), we held that the National Labor Relations Board (the Board) lacked substantial evidence to support its ruling that T -Mobile’s response to the email comported with the National Labor Relations Act (the Act). Id. at 18.2 T

- Mobile had argued that it reprimanded Befort not because the email was union

- related but because it violated various company email policies

. Id. at 25. The company claimed that o ne of those policies
, the so

- called Enterprise User Standard
, “effectivel y impose[d] a restriction on mass emails.” Id. We determined, however, that “T

- Mobile’s reliance on the Enterprise User Standard fail[ed] for at least two reasons.” Id. at 26. First, we observed that “the Board did not itself hold that the Enterprise U ser Standard covered Befort’s email.” Id. Second, we explained that, “even assuming the Board did implicitly accept T

- Mobile’s claim that the Enterprise User Standard applied to Befort’s email, substantial evidence does not support that finding.” Id. W e then concluded: “ Under that set of facts, we decline to fill in the Board ’ s silence on how Befort ’ s email implicated the Enterprise User Standard. ” Id. We therefore granted the union’s petitions for review but remanded to the Board for further consider ation of two separate issues its prior disposition had left undecided. Id. at 28, 30

- 31.

On remand, the Board “accept[ed] as the law of the case” that T

- Mobile disparately enforced its email policies against Befort based on her union activity. T

- Mobile USA, Inc. , 369 N.L.R.B. No

. 163, slip. op. at * 6
, 2022 WL 5148159 (Sept. 30, 2022). I t then resolved the two remanded issues in f avor of Befort

. Id.

T

- Mobile now petitions for review of the Board’s decision on remand. The company does not take issue with either of the Board’s holdings relating to the two remanded issues. Instead, T

Mobile argues that “[t]he Board erred when it declared as ‘the law of the case’ that Befort’s email did not violate the Enterprise User Standard and that T

- Mobile applied the Standard in a discriminatory fashion.” Pet’r’s Br. 12. The company seizes on our language from CWA that we would not “fill in the Board’s silence” a s to whether Befort’s email was covered by the Enterprise User Standard. Id. at 1 (quoting CWA , 6 F.4th at 26). In the company’s view, we left that question “open” for the Board to resolve

. Id

.

T

- Mobile is wrong. We did not leave that question open

. W e squarely held that “T

Mobile’s reliance on the Enterprise User Standard fails.” CWA , 6 F.4th at 2 6

. T

- Mobile had no difficulty understanding th at holding in its unsuccessful petition for rehearing en banc , in which it recognized that CWA “rejected the applicability of the workplace policies that T

- Mobile had invoked.” Pet. for Reh’g En Banc at 4
, CWA v. NLRB , Nos. 20

- 1112 & 20

- 1186, ECF. No. 1913082 (D.C. Cir. Sept. 7, 2021)

. The sentence on which T

- Mobile hangs its current appeal

— that we would not “fill in the Board’s silence”

— w as not an invitation to the Board to expound on whether Befort’s email was covered by the Standard. Rather, the sentence observed that the record

was devoid of evidence that the Standard applied to Befort’s conduct, meaning that T

- Mobile had failed to bear its burden to show that Befort’s email implicate d the Enterprise User Standard

.
Our remand was limited to two issues identified in our prior opinio n . Because T

- Mobile raises no challenge whatsoever to the Board’s rulings on those issues and the Board properly adopted our holding in CWA as the law of the case, we deny the petition and grant the Board’s

cross

- application for enforcement.3 Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate until seven days after resolution of any timely petition for rehearing or rehearing en banc

. See Fed. R. App. P. 41(b); D.C. Cir. R. 41.

Per Curiam

FOR THE COURT: Mark J. Langer, Clerk

BY: /s/ Daniel J. Reidy Deputy Clerk