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Court: NLRB was wrong to strike down positive workplace policy

Can you require your employees to be positive? Can you prohibit them from arguing, or mandate that they engage in appropriate teamwork?

When T-Mobile USA, Inc., put those and other terms of employment in its employee handbooks, the National Labor Relations Board found that the terms tended to discourage unionization or concerted activity that was reasonably related to improving working conditions. The agency therefore ruled that the provisions violated the National Labor Relations Act.

The provisions at issue included four parts of the handbook which:

1. Encouraged workers to maintain a positive work environment

2. Prohibited arguing, fighting, treating others with disrespect or failure to demonstrate appropriate teamwork

3. Prohibited audio or video recording or photography in the workplace

4. Prohibited non-approved people from accessing electronic information

Appellate court rules that only 1 of the provisions actually violated the law

T-Mobile appealed these rulings by the NLRB, and the 5th Circuit Court of Appeals recently overturned most of it. The test for an illegal workplace policy under the National Labor Relations Act is whether a "reasonable employee would construe the policy as prohibiting protected activity," the court said.

The NLRB's mistake, the court explained, was that it had based its ruling on whether the policies "could conceivably be read to include activity protected by the act, even though that reading is unreasonable," rather than whether a reasonable employee would understand the rule as prohibiting protected activity.

From a reasonable employee's point of view, the court held, only the third challenged provision actually discourages lawful collective activity by employees. This is because it could be read to prohibit employees from documenting their working conditions in order to properly challenge them. For example, an employee might want to take a photo of a wage schedule posted on a bulletin board and reasonably fear that was prohibited.

As for the first and second terms the NLRB had challenged, the court 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, or failing to treat others with respect."

Regarding the final term, the court found the NLRB had interpreted the rule out of context. Rather than intentionally prohibiting the sharing of information about wages and working conditions, the rule was more reasonably read as protecting the company's proprietary business information.

This ruling is good news for employers seeking to create a workplace policy meant to encourage workplace harmony. Although this ruling was by the 5th Circuit which doesn't cover Kentucky, the 5th Circuit is highly influential. It described T-Mobile's overall policy as requiring "getting along with everybody, common sense, and people skills."

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