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T-Mobile’s recording ban unlawful, but NLRB wrong to strike conduct, integrity work rules

By Lisa Milam-Perez, J.D.

The NLRB erroneously held that employees would construe several work rules set forth in T-Mobile’s employee handbooks as obstructing their right to engage in protected, concerted activity, the Fifth Circuit held. However, the Board properly found that a complete ban on workplace recording would give a reasonable employee pause. The appeals court denied in part the Board’s petition for enforcement of its order in a pair of consolidated cases, and granted in part the employer’s petition for review (T-Mobile USA, Inc. v. NLRB, July 25, 2017, Jolly, E.).

Stricken policies. After the Communications Workers union filed NLRB charges in 2014, the Board nixed more than a dozen policies contained in the T-Mobile (and its affiliate, MetroPCS) employee handbooks. On appeal, the employer chose not to contest the ALJ’s findings (summarily upheld by the Board) as to eleven of those policies, focusing instead on what it deemed were the agency’s most “egregious” holdings—those striking the following handbook provisions:

  • a “workplace conduct” clause encouraging employees to “maintain a positive work environment”;
  • a “commitment-to-integrity” policy, which features a non-inclusive list of 17 prohibited acts including “arguing or fighting, “failing to treat others with respect,” and “failing to demonstrate appropriate teamwork”;
  • a “recording” policy under the handbook’s “Workplace Expectations” heading, which bans all photography, audio or video recording on-site by employees; and
  • an acceptable use policy, which appears under the handbook’s “Security” heading, and bars access to electronic information by “non-approved individuals.”

According to the Board, these provisions discouraged employees from engaging in protected, concerted activity. However, applying the Luther Heritage test, the appeals court found fault with only the workplace recording rule.

Workplace conduct policy. “Context matters,” the court wrote, particularly to a “reasonable employee” construing an employer’s workplace restrictions. The conduct policy in question simply calls for “a positive work environment and effective working relationships, and requires employees to behave in a way that ‘promotes efficiency, productivity, and cooperation,” the court said, with the obvious implication that it applies “with respect to work.” Importantly, in context, the rule applies to “a normal workplace, on a normal workday,” and a reasonable T-Mobile employee would interpret the rule as expressing “a universally accepted guide for conduct in a responsible workplace,” nothing more.

The NLRB had considered how a reasonable employee could interpret the policy, but its own precedent called for the Board to consider instead how that employee would interpret the policy. Thus, the Board erred, the Fifth Circuit held, pointing out that the only other circuit to address such work rules—the D.C. Circuit—has held the same.

Commitment-to-integrity policy. T-Mobile’s commitment-to-integrity policy also should have passed Board scrutiny unscathed. The Board reasoned that the policy would “inhibit robust discussion of labor issues,” but here too, the appeals court saw merely “a common sense civility guideline.” In its view, a reasonable employee would be “fully capable” of debating the terms and conditions of employment and union activity without having to resort to any of the forbidden acts, or any other disfavored conduct that is implied, if not enumerated, in the policy.

Acceptable use policy. Again, in striking the employer’s acceptable use policy, the NLRB failed to consider the context in which it was meant to be read and understood. The policy’s “scope” provision explicitly states that the rule “applies to all non-public T-Mobile information.” As such, courts must presume that a reasonable employee would not construe the restriction as prohibiting the disclosure of wage and benefit information, or other kinds of information typically revealed by employees when engaged in protected conduct—”so long as the policy does not explicitly state that it encompasses such information.” The policy here clearly applies only to “the sort of proprietary business information that an employer may properly restrict its employees from sharing outside of the company.”

Recording policy. However, the court upheld the Board’s finding that the workplace recording policy was unlawful, citing its own concerns about the breadth of its reach. By its plain language, the policy encompasses “any and all photography or recording on corporate premises at any time without permission from a supervisor.” While a reasonable employee would not conclude that the above policies were meant to interfere with Section 7 conduct, such an employee would read the recording policy, by contrast, as “plainly forbidding a means of engaging in protected activity.” The provision would be interpreted so broadly as to discourage protected activity, “such as even an off-duty employee photographing a wage schedule posted on a corporate bulletin board.”

T-Mobile stressed the legitimate business purposes behind its policy, including the need to maintain privacy and protect conditional information, among other rationales. But “merely reciting such justifications does not alter the fact that the operative language of the rule on its face prohibits protected Section 7 activity, including Section 7 activity wholly unrelated to those stated interests,” the appeals court said. Therefore, it upheld the Board’s determination that the recording policy violated the NLRA, and enforced the Board’s order in that respect.