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T-Mobile USA, Inc. v. National Labor Relations Board

United States Court of Appeals, Fifth Circuit

July 25, 2017

T-MOBILE USA, INCORPORATED, Petitioner-Cross Respondent
v.
NATIONAL LABOR RELATIONS BOARD, Respondent -Cross Petitioner NATIONAL LABOR RELATIONS BOARD, Petitioner
v.
METROPCS COMMUNICATIONS, INCORPORATED, Respondent

         On Petitions for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

          Before KING, JOLLY, and PRADO, Circuit Judges.

          E. GRADY JOLLY, Circuit Judge.

         In this appeal, the National Labor Relations Board ("NLRB" or "Board") challenges certain T-Mobile[1] workplace rules, which it contends prohibit employees from exercising unionizing rights.

         T-Mobile's employee handbook (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. The Board determined that all four provisions violated the National Labor Relations Act because each of them discouraged unionizing or other concerted activity protected by the Act. T-Mobile resists and seeks review of the Board's order.

         We hold that the Board erred in finding that a reasonable employee would construe policies (1), (2), and (4) to prohibit protected activity. However, we will not upset the Board's finding that a reasonable employee would construe policy (3) to prohibit protected activity. Accordingly, we grant in part and deny in part enforcement of the Board's order.

         I.

         T-Mobile and MetroPCS are telecommunications companies that market cell phones and related services, with offices and retail locations located throughout the United States. In 2014, based on charges filed by the Communication Workers of America, [2] the NLRB brought a complaint against T-Mobile alleging that several of the provisions of T-Mobile's employee handbook violated the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151 et seq. This appeal concerns four provisions of the handbook that the NLRB determined were forbidden under the NLRA.[3]

         A.

         The "workplace conduct" policy is found under the "Standards of Conduct" heading in the employee handbook. The policy provides:

[T-Mobile] 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 communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.[4]

         The "commitment-to-integrity" policy[5] is found under the "Conducting Business" heading in the code of business conduct. The policy begins with the preface:

At T-Mobile, we expect all employees, officers and directors to exercise integrity, common sense, good judgment, and to act in a professional manner. We do not tolerate inconsistent conduct. While we cannot anticipate every situation that might arise or list all possible violations, the acts listed below are unacceptable.

         The commitment-to-integrity policy then lists seventeen non-inclusive examples of "unacceptable" acts, including, in relevant part:

Arguing or fighting with co-workers, subordinates or supervisors; failing to treat others with respect; or failing to demonstrate appropriate teamwork.[6]

         The "recording" policy is found under the "Workplace Expectations" heading of the employee handbook. The policy provides:

To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recordings of work-related or workplace discussions. Exceptions may be granted when participating in an authorized [T-Mobile] activity or with permission from an employee's Manager, HR Business Partner, or the Legal Department. If an exception is granted, employees may not take a picture, audiotape, or videotape others in the workplace without the prior notification of all participants.

         Finally, the "acceptable use" policy is found under the "Security" heading of T-Mobile's "Acceptable Use Policy for Information and Communication Resources." The policy provides:

Users may not permit 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 from an authorized T-Mobile representative.[7]

         B.

         The ALJ and the Board differed in their respective conclusions. The ALJ, ruling on a stipulated record, found that both the commitment-to-integrity policy and the acceptable use policy violated the NLRA, but that the workplace conduct policy and the recording policy did not. T-Mobile appealed, and the General Counsel cross-appealed, to the Board. A three-member panel of the Board held that the ALJ correctly found that the commitment-to-integrity policy and the acceptable use policy violated the NLRA, but that the ALJ had erred in finding that the other two policies did not. The Board thus held that all four of the challenged policies violated the NLRA and issued an order to that effect.

         T-Mobile timely petitioned this Court for review of the NLRB's decision. The Board has filed a cross-application for enforcement of its order. See 29 U.S.C. §§ 160(e), (f).

         II.

         A.

         Section 7 of the NLRA provides a declaration of statutory policy: "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157. Section 8(a)(1) of the Act in turn provides enforcement of that policy by stating that it shall be an "unfair labor practice" to "interfere with, restrain, or coerce employees in the exercise of the rights" protected by Section 7. 29 U.S.C. § 158(a)(1). Here, the "appropriate inquiry" is whether T-Mobile's rules for workplace conduct violate § 8(a)(1) by chilling a reasonable employee in the exercise of his or her Section 7 rights. See Flex Frac Logistics, L.L.C. v. NLRB, 746 F.3d 205, 209 (5th Cir. 2014). Indeed, our precedent has previously noted that "[w]here the rules are likely to ...


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