Why it matters

The National Labor Relations Board (NLRB) took a negative stance on T-Mobile's preference for positive employee communications, ruling that a handbook provision requiring workers "to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships" violated the National Labor Relations Act (NLRA). The unanimous three-member panel of the Board determined that the policy provision was vague, ambiguous, and would reasonably chill workers in the exercise of their Section 7 rights. "Because labor disputes and union organizing efforts frequently involve controversy, criticism of the employer, arguments, and less-than-'positive' statements about terms and conditions of employment, employees reading the rule here would reasonably steer clear of a range of potentially controversial but protected communication in the workplace for fear of running afoul of the rule," the Board wrote, rejecting T-Mobile's contention that the rule was necessary to implement business objectives of "efficiency, productivity and cooperation." The Board also invalidated the handbook's ban on workplace recordings and affirmed a ruling from an administrative law judge (ALJ) striking down several other provisions (including that employees need "to treat others with respect" and requiring all media inquiries be directed to the company without comment). The decision continues the NLRB's crackdown on employment policies and handbook provisions.

Detailed discussion

T-Mobile USA's employee handbook featured a section entitled "Workplace Conduct" that stated: "[T-Mobile] expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation. Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management."

The handbook also contained a rule prohibiting employees from making recordings in the workplace "[t]o prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information."

In a complaint filed by the National Labor Relations Board (NLRB), the agency alleged that these rules—and several others—were unlawful and violated the National Labor Relations Act (NLRA). An administrative law judge (ALJ) found many of the other challenged provisions (such as confidentiality rules, rules about communications with the media, and requirements in the code of business conduct) to violate employees' Sections 7 and 8(a)(1) rights but determined that the positive workplace environment and ban on recordings passed muster.

On appeal, a three-member panel of the Board affirmed the ALJ's determination as to the other handbook provisions but reversed with regard to the other two sections. The undefined phrases "positive work environment" and "communicating in a manner that is conducive to effective working relationships" are ambiguous and vague, and would reasonably chill employees in the exercise of Section 7 rights, the Board wrote.

"We find that employees would reasonably construe the rule to restrict potentially controversial or contentious communications and discussions, including those protected by Section 7 of the Act, out of fear that [T-Mobile] would deem them to be inconsistent with a 'positive work environment,' " according to the decision. "Because labor disputes and union organizing efforts frequently involve controversy, criticism of the employer, arguments, and less-than-'positive' statements about terms and conditions of employment, employees reading the rule here would reasonably steer clear of a range of potentially controversial but protected communication in the workplace for fear of running afoul of the rule."

Turning to the prohibition on workplace recordings, the Board relied upon decisions issued since the ALJ's ruling that found photography and audio or video recording (as well as the posting of photographs and recordings on social media) may be protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.

"Such protected conduct may include, for example, recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions," the Board wrote.

T-Mobile's rule did not differentiate between recordings protected by Section 7 and those that are not, the NLRB said, and included recordings made during nonwork time and in nonwork areas. "[B]ecause of the rule's broad language, employees would reasonably read the rule to prohibit recording that would be protected by Section 7 of the Act," the panel said.

The employer's reasoning behind the rule—maintaining employee privacy, promoting open communication, and protecting confidential information—did not cure the rule's overbreadth, the panel added. T-Mobile did not tailor its prohibition to reflect state laws on nonconsensual recording, for example, nor did it cite laws regarding workplace harassment. "Thus, [T-Mobile's] proffered rationales cannot justify the rule's broad restriction that employees would reasonably read as prohibiting activity protected by Section 7," the Board concluded.

The panel ordered T-Mobile to cease and desist from using the handbook provisions at issue, distribute a revised handbook, and notify employees of the changes.

To read the decision and order in T-Mobile USA, click here.