Why it matters

Primarily siding with T-Mobile, the U.S. Court of Appeals, Fifth Circuit reversed several findings of the National Labor Relations Board (NLRB) with regard to policies found in the company’s employee handbook. Several union members filed charges with the NLRB in 2014, and an administrative law judge (ALJ) ruled that more than a dozen policies in the handbook ran afoul of the National Labor Relations Act (NLRA). T-Mobile appealed four of the stricken provisions, including one prohibiting all photography and audio or video recording on-site by employees. The NLRB said all four of the provisions violated employees’ rights, but the federal appellate panel reversed with respect to three of the provisions, emphasizing that “context matters.” For example, one provision encouraging employees to “maintain a positive work environment” did not violate the statute, as it merely advocated for a positive workplace, the court said. The panel did find fault with the recording policy, however, as it could be read as “plainly forbidding a means of engaging in protected activity,” enforcing the NLRB’s order with regard to just the one provision.

Detailed discussion

Based on charges filed by the Communication Workers of America, the National Labor Relations Board (NLRB) brought a complaint against T-Mobile in 2014, alleging that several of the provisions in the company’s employee handbook violated the National Labor Relations Act (NLRA).

An administrative law judge (ALJ) held that more than a dozen policies violated the statute. T-Mobile appealed with respect to four provisions: the workplace conduct policy (providing that all employees should behave in “a professional manner” and are expected to “maintain a positive work environment”), the commitment-to-integrity policy (which sets forth a list of examples of “unacceptable” acts, including arguing or fighting with coworkers), the recording policy (which prohibited the recording of “people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace”), and the acceptable use policy (banning the access or transfer of certain information without T-Mobile’s authorization).

The NLRB determined that all four of the provisions violated the NLRA, ordering T-Mobile to cease and desist from using the policies, distribute a revised handbook, and notify employees of the changes.

T-Mobile appealed. Analyzing each of the provisions in turn, the U.S. Court of Appeals, Fifth Circuit agreed with the employer that three of the policies were lawful, although the panel affirmed that the recording policy violated the NLRA.

Considering the workplace conduct policy, the court said a reasonable employee would not read the language as discouraging protected activity, including candid, potentially contentious discussions of unionizing.

“To a ‘reasonable employee,’ context matters in the interpretation of these rules,” the court said. “A reasonable employee of T-Mobile would interpret the policy as requiring professional manners, positive work environment, effective and courteous communications, getting along with everybody, common sense, and people skills. The reasonable T-Mobile employee would understand the rule to express a universally accepted guide for conduct in a reasonable workplace.”

The NLRB had evaluated how a reasonable employee could interpret the policy, the court said, when it should have relied upon its own precedent to consider how a reasonable employee would interpret the policy.

Similarly, the commitment-to-integrity policy would not be read by T-Mobile workers as infringing on their rights, the panel said. “[A] reasonable employee would be fully capable of engaging in debate over union activity or working conditions, even vigorous or heated debate, without inappropriately ‘arguing or fighting,’ ‘failing to treat others with respect,’ or ‘failing to demonstrate appropriate teamwork,’” the court wrote.

As for the acceptable use policy, the panel said the NLRB disregarded the context in which the policy was meant to be read and understood. The provision includes a section on “Scope,” which states that the policy “applies to all non-public T-Mobile information.”

“Where a company policy prohibits the disclosure of non-public information, courts presume that a reasonable employee would not construe the policy to prohibit the disclosure of information that may be properly used in protected activity, such as wage and benefit information, so long as the policy does not explicitly state that it encompasses such information,” the court explained.

Because T-Mobile’s policy applies only to “the sort of proprietary business information that an employer may properly restrict its employees from sharing outside of the company,” a reasonable worker would not believe that the provision includes protected wage and benefit information, the court said.

The panel declined to enforce the NLRB’s order as to all three policies.

However, the court then turned to the recording policy, expressing concern with the “broad reach” of the provision. “This ban is, by its own terms alone, stated so broadly that a reasonable employee, generally aware of employee rights, would interpret it to discourage protected concerted activity, such as even an off-duty employee photographing a wage schedule posted on a corporate bulletin board,” the panel wrote.

T-Mobile’s argument that it had legitimate business interests to maintain individual privacy and protect confidential information did not persuade the court, as the operative language of the policy prohibited Section 7 activity on its face. Unlike the other three provisions, “a reasonable T-Mobile employee, aware of his legal rights, would read the language of the recording policy as plainly forbidding a means of engaging in protected activity,” the court concluded, affirming the NLRB’s order with respect to this policy.

To read the opinion in T-Mobile USA v. National Labor Relations Board, click here.