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NLRB finds T-Mobile unlawfully required employees to ‘maintain a positive work environment’

By Lisa Milam-Perez, J.D.

Several employee handbook provisions maintained by T-Mobile USA (and its sister company, MetroPCS) ran afoul of the NLRA, the NLRB held. Agreeing with an administrative law judge, the Board invalidated a rule that barred employees from arguing with coworkers, subordinates, or supervisors, and an acceptable use policy that restricted access to information by “non-approved individuals.” In contrast with the ALJ, the three-member panel also found a directive requiring employees “to treat others with respect” and a ban on workplace recordings would have a chilling effect and, as such, violated Section 8(a)(1) of the Act (T-Mobile USA, Inc., April 29, 2016).

“Positive work environment.” T-Mobile’s policy requiring employees “to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships” was a vague, ambiguous directive that would reasonably chill employees in the exercise of their Section 7 rights, the Board held. In its view, employees would construe the rule as restricting all “potentially controversial or contentious communications and discussions,” including those that fell within the NLRA’s ambit, since discussions of this sort might be deemed inconsistent with the “positive work environment” mandate. Worse still, the provision would be read in context with other unlawful work rules (also invalidated here) that bar employees from “arguing” or making “detrimental” comments about the company.

“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 reasoned.

T-Mobile argued that the rule was implemented pursuant to its business objectives of “efficiency, productivity and cooperation,” and that employees would rightly perceive the rule as such—and not as an infringement on their Section 7 rights. But the Board disagreed. Elsewhere, the employer had set forth its expectations that employees behave in a professional manner, and that directive was not under challenge here. The rule at issue, though, gave no basis from which employees could determine what communications would detract from a “positive work environment.” Nor were employees told how T-Mobile might go about enforcing the rule in the context of protected discussions that the employer might view as undermining the work environment it seeks to regulate.

Workplace recording. The employer also violated the Act by imposing an overbroad rule prohibiting employees from recording “people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace” and (with the exception of calls that the company records for quality purposes) prohibiting employees from making “sound recordings of work-related or workplace discussions.” The ALJ thought the employer offered valid, nondiscriminatory rationales for the rule (including maintaining a harassment-free workplace and protecting trade secrets), and that the rule was narrowly tailored to serve those interests. The Board disagreed, noting the rule does not distinguish between recordings that are protected by Section 7 and those that are not; nor does it exclude recordings made on nonwork time, in nonwork areas.

T-Mobile argued that the restriction was justified by the company’s general interest in maintaining employee privacy, protecting confidential information, promoting open communication, and prohibiting harassing conduct (as the employer has an affirmative obligation to do), but the rule was not narrowly tailored to protect these legitimate employer interests, nor was it drafted to exclude protected Section 7 activity from its reach. And while the employer insisted that the rule’s intent was not to restrict Section 7 activity, that could not save the provision, because its “proffered intent” could not cure its overbreadth.

Other invalid provisions. The company’s “Commitment to Integrity” provision in its code of business conduct, which prohibits employees from “arguing . . . with co-workers, subordinates or supervisors; failing to treat others with respect; or failing to demonstrate appropriate teamwork,” was also stricken. The Board also invalidated work rules:

  • barring disclosure of the employee handbook itself to third parties without consent;
  • requiring employees to maintain the confidentiality of the names of employees involved in internal investigations as complainants, subjects, or witnesses;
  • directing employees who feel they have not been paid all wages or pay owed to them, believe that an improper deduction was made from their salary, or feel they have been required to miss meal or rest periods to contact a manager, an HR business partner, or the company’s “integrity line”;
  • requiring employees to refer all media inquiries to the company without comment;
  • prohibiting employees from using the company’s information or communications resources in ways that could be considered disruptive, offensive, or harmful to morale;
  • requiring employees to sign a restrictive covenant and confidentiality agreement that classifies employee wage and salary information as confidential and proprietary information not subject to disclosure;
  • prohibiting employees from disclosing employee addresses, telephone numbers, and contact information and also prohibiting employees from accessing such information without a business need to do so and without prior authorization or consent;
  • prohibiting employees from making detrimental comments about the company or its customers, products, services, or employees; and
  • requiring employees to sign an acknowledgement form that requires them to comply with (unlawful) work rules and to report coworkers who do not comply.