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Court of Appeals reverses NLRB on handbook policies

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In recent years, the National Labor Relations Board has relentlessly attacked common sense policies found in many employee handbooks. I have been hoping that the U.S. Court of Appeals would correct these egregious decisions. I am delighted to report that, on July 25, the U.S. Court of Appeals for the 5th Circuit issued an opinion in a case involving T-Mobile that did just that.

By way of introduction, the court stated that the NLRB must give a workplace rule a reasonable reading. The NLRB must refrain from reading particular phrases in isolation and must not presume improper interference with employee rights. The appropriate objective inquiry is not whether a rule could conceivably be read to cover Section 7 activity, but rather, whether a reasonable employee reading the rules would construe them to prohibit conduct protected by the National Labor Relations Act.

In this case, the court said the reasonable employee is a T-Mobile employee aware of his legal rights, but also interprets work rules as they apply to the everyday-ness of his job. The reasonable employee does not view every employee policy through the prism of the NLRA. The court stated, "Indeed, the Board must not presume improper interference with employee rights."

The court first addressed the following "Workplace Conduct" policy:

"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 work and relationships with internal and external customers, clients, coworkers and management."

The NLRB had found the policy violated the NLRA because it discouraged protected activity, including candid, potentially contentious discussion of unionizing. The court found the rule to be unreasonable and poked fun at the NLRB, with a footnote stating, "Indeed, the Late Show host Stephen Colbert mocked the Board's decision in this case, joking that the government says 'I can't legally ask my employees to be happy.'"

The court stated that a reasonable employee would interpret the policy as requiring professional manners, positive work environment, effective and courteous communications, getting along with everybody, common sense and people skills. Further, the court noted that the NLRB erred by interpreting the rule as to how the reasonable employee could rather than would interpret these policies – an incorrect analysis.

The court also quoted the D.C. Circuit in another case, which stated, "It is preposterous that employees are incapable of organizing a union or exercising their other statutory rights under the NLRA without resorting to abusive or threating language."

The court next examined the following "Commitment to Integrity" policy:

"At T-Mobile, we expect all employees, officers and directors to exercise integrity, common sense, good judgment and to act in a professional manner. We do not tolerate inconsistent conduct. While we cannot anticipate every situation that might arise or list all possible violations, the acts listed below are unacceptable."

Some of the unacceptable acts included arguing or fighting with coworkers; insubordination to supervisors; failing to treat others with respect; and/or failing to demonstrate appropriate teamwork.

The NLRB had ruled that this policy violated the act. The court disagreed, stating that the rule, like the Workplace Conduct rule, is, on its face, only a common sense civility guide. The court stated that a reasonable employee would be fully capable of engaging in debate or union activity working conditions without inappropriately "arguing or fighting," "failing to treat others with respect," or "failing to demonstrate appropriate teamwork."

The court examined the company's "Acceptable Use" policy:

"Users may not permit non-approved individuals access to information or information resources, or any information transmitted by, or received from, printed from, or stored in these resources, without prior written approval from an authorized T-Mobile representative."

The NLRB found the policy violated the act because it would prohibit protected activity such as accessing and sharing wage and benefit information contained in the employee's e-mail. The court again disagreed, stating that the NLRB ignored the context of the rule. The "Scope" section of the rule explicitly states that the policy "applies to all non-public T-Mobile information."

The court stated that, 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 believed the NLRB's finding was just unreasonable.

T-Mobile also had a recording policy that the NLRB found violated the act. Here, the court agreed with the NLRB that the policy was unlawful. The court stated:

"We are primarily concerned with the broad reach of the recording ban. The ban, by its plain language, encompasses any and all photography or recording on corporate premises at any time without permission from a supervisor. 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 and concerted activity, such as even an off-duty employee photographing a wage schedule posted on a corporate bulletin board."

The court indicated a narrower policy banning recording may pass muster.

Conclusion

To sum up, the Courts of Appeal are, in some cases, correcting these NLRB decisions that defy common sense. Let us hope that the NLRB itself reverses course and restores common sense once William Emanuel is confirmed to fill the board's final remaining vacancy.

L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.

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