NLRB Finds Employer's Workplace Conduct Rules as Chilling Protected Activities

Thursday, May 5, 2016

In T-Mobile USA, Inc. and MetroPCSCommunications, Inc., the NLRB upheld a previous decision by an Administrative Law Judge, but also overturned part of the Judge's decision. In upholding the Judge's decision, the NLRB determined that the company violated Section 8(a)(1) of the National Labor Relations Act by maintaining language in section 4.4 of its Acceptable Use Policy prohibiting employees from permitting “non-approved individuals access to information or information resources, or any information transmitted by, received from, printed from, or stored in these resources” without prior written approval, and by maintaining a “Commitment to Integrity” provision in its Code of Business Conduct that prohibits “arguing . . . with co-workers, subordinates or supervisors; failing to treat others with respect; or failing to demonstrate appropriate teamwork.”  The NLRB did not, however, agree with the Judge when it found that that the companies also violated Section 8(a)(1) by promulgating and maintaining rules in its employee handbook requiring employees “to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships” and prohibiting employees from making recordings in the workplace.

The company had a provision in its handbook entitled "Workplace Conduct" that includes the following language:  [The Company] 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 communi- cating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.  The Board found that this provision could reasonably be construed to restrict potentially controversial or contentious communications and discussions, including those protected by Section 7 of the Act, out of fear that the company would deem them to be inconsistent with a “positive work environment.”

The Board determined that employees would reasonably understand the provision's requirement that they communicate “in a manner that is conducive to effective working relationships” with coworkers and management as prohibiting disagreements or conflicts, including protected discussions, that the company subjectively deems to not be conducive to “a positive work environment.”

The company also instituted a rule the prohibited employees from making recordings in the workplace.  Following two of its precedents, Whole Foods and Rio All-Suites Hotel and Casino, the Board found the rule to be too broad and explained that photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, may be protected by Section 7 if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present.

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