© 2017 The Texas Lawbook.
By William R. Peterson of Morgan, Lewis & Bockius
The National Labor Relations Act provides workers with the rights to form and join labor organizations, to bargain collectively and “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
These prohibitions apply to general rules of workplace conduct, not merely rules that specifically target protected conduct. For example, the Fifth Circuit has held that an arbitration agreement can violate the NLRA by giving the impression that employees waived their rights to file charges with the National Labor Relations Board.
Even when a workplace rule does not explicitly restrict protected activity, was not promulgated in response to protected activity, and has not been applied to protected activity, it still violates the NLRA if a reasonable employee would construe it to prohibit conduct protected by the Act.
But in conducting this inquiry, the rules must be interpreted reasonably. The question is not whether the rule could hypothetically limit protected activity, but rather how the rule would be interpreted in light of “the everydayness of [the] job.”
The Fifth Circuit recently applied and clarified these standards in reviewing a decision by the National Labor Relations Board. T-Mobile USA v. NLRB concerned four workplaces rules that the Board determined violated the NLRA. The policies under scrutiny:
(1) encouraged employees to “maintain a positive work environment”;
(2) prohibited “[a]rguing or fighting,” “failing to treat others with respect” and “failing to demonstrate appropriate teamwork”;
(3) prohibited all photography and audio or video recording in the workplace; and
(4) prohibited access to electronic information by non-approved individuals.
In an opinion written by Judge E. Grady Jolly, a Fifth Circuit panel reversed the Board’s finding that a reasonable employee would construe policies (1), (2), and (4) to prohibit protected activity but enforced the portion of the Board’s order based on its finding that policy (3) violated the NLRA.
While deferring to the Board’s factual findings, the court concluded that its findings regarding policies (1), (2) and (4) were unreasonable. The opinion emphasizes the need to interpret these workplace rules in context: “To a ‘reasonable employee,’ context matters in the interpretation of these rules.”
For example, the Board concluded that requiring employees to “maintain a positive work environment” could prevent them from engaging in “candid, potentially contentious discussions of unionizing.” But, the court explained, in context, a reasonable employee would understand that “this rule addresses a normal workplace, on a normal workday.”
Similarly, the court concluded that the commitment-to-integrity policy constituted another “common sense civility guideline.” The prohibitions on “arguing or fighting,” “failing to treat others with respect,” and “failing to demonstrate appropriate teamwork” must be understood in light of the surrounding list of examples of misconduct, such as theft, fraud, dishonesty, and sleeping on the job.
Moreover, a reasonable employee could engage in union activity, including vigorous or heated debate, without “arguing or fighting” or “failing to treat others with respect.”
And finally, a reasonable employee would interpret the “access to electronic information” to prohibit only the sharing of non-public information, which would not include “information that may be properly used in protected activity, such as wage and benefit information.”
In contrast, the Fifth Circuit upheld the Board’s finding that the recording policy would discourage protected activity. The opinion notes “the broad reach of the recording ban,” which “encompasses any and all photography or recording on corporate premises at any time without permission from a supervisor.”
This blanket prohibition would include recording protected by the NLRA, such as an off-duty employee photographing a wage schedule posted on a bulletin board. The prohibition thus violated the NLRA.
The case illustrates several significant propositions of labor law. First, the deference given to the Board’s findings is not boundless. As the Fifth Circuit explained, the court’s review is “more than a mere rubber stamp of the decision.” This may be particularly true when the finding concerns an objective inquiry—such as how a reasonable employee would interpret policy language—rather than a case-specific issue of historical fact.
Second, context matters. In determining the meaning of workplace policies, courts will look at the language in context to determine how it would be understood by a reasonable employee.
Third, language matters. The Fifth Circuit’s analysis appears to turn, in part, on the specificity of the language used in the policies. The “positive work environment” policy could be readily understood to refer to ordinary, day-to-day interactions with customers and co-workers, rather than requiring employees to maintain a “positive work environment” during heated labor negotiations. In contrast, the detailed, specific language of the recording policy left no room to doubt that it applied to all recording.
Employers should be assured that they do not need to include an express “except with respect to protected activity under the NRLA” exclusion to every general workplace rule. Courts will interpret policies sensibly and reasonably, and if context and language indicate that the policy does not apply to protected activities, it will not apply.
But to reach a court of appeals for review, an employer must first take on the burden of litigating the issue through the NLRB administrative process. In many cases, the cost has resulted in employers settling these rules cases and adopting language that survives the NLRB’s expansive interpretation of which workplace rules restrict Section 7 rights.
Employers should be careful when adopting workplace rules with broad and mandatory language prohibiting specific acts. If the specific prohibitions include conduct protected under the NLRA, then the workplace rule almost certainly be found to “interfere with, restrain, or coerce employees in the exercise of their rights.”
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