The National Labor Relations Board (“NLRB” or “Board”) has taken a jaundiced view of employer policies that require respect and civility in the workplace over the past several years. The Board has found such rules generally interfere with employees Section 7 rights and thereby violate Section 8(a)(1) of the National Labor Relations Act (“the Act”). Fortunately, the Fifth Circuit Court of Appeals (“the Court”) takes a more holistic view of civility rules. In T-Mobile USA, Incorporated v NLRB, No. 16-60284 (5th Cir. June 25, 2017), the Court, contrary to the Board, found lawful two civility rules because nothing in the language of the rules, nor in their implementation, would lead a reasonable employee to believe the rules restrict protected, concerted activity.

In the underlying case, the Board found that T-Mobile (“the Company”) violated Section 8(a)(1) by maintaining in its employee handbook two civility rules:

• a workplace conduct rule that encouraged employees 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”; and
• a commitment to integrity policy that required employees to “exercise integrity, common sense, good judgment, and act in a professional manner …” and prohibited, among other things, “[a]rguing or fighting with co-workers, subordinates or supervisors; failing to treat others with respect; or failing to demonstrate appropriate teamwork.”

With respect to the workplace conduct rule, the Court rejected the Board’s contention that reasonable employees would view the language of the rule to discourage protected activity, such as contentious discussions about a unionization. The Court noted, under Lutheran Heritage Village-Livonia, the Board is not to presume that an employer’s rule improperly interferes with employee rights, nor look to see if the rule could conceivably cover Section 7 activity. Rather, the Board is to determine objectively how a reasonable employee would read the rule. The Court noted the employer did not adopt the rules in response to any protected, concerted activity nor were the rules applied to restrict such activity. In short, nothing in the context of the case suggested that a reasonable employee would read the rule to restrict Section 7 activity. In a normal workday in a normal workplace, a reasonable employee would read the rule to “express a universally accepted guide for conduct in a responsible workplace.”

Similarly, with respect to the commitment to integrity policy, the Court rejected the Board’s contention that the policy violated the Act because it would inhibit robust discussion of labor issues, concluding that the policy is a “common sense civility guideline.” The Court noted that the rule’s prohibition on “arguing or fighting,” “failing to treat others with respect,” and “failing to demonstrate appropriate teamwork” appeared in a list of other prohibited actions, “including theft, fraud, dishonesty, and sleeping on the job.” Noting the serious nature of the other listed acts of misconduct, the Court concluded that a reasonable employee would not interpret the integrity policy to prohibit two employees heatedly debating the merits of union or other protected activity, but rather prohibit only more egregious misconduct similar in nature to theft or fraud. The Court also reasoned that the policy would not interfere with a reasonable employee’s Section 7 activity because an employee would surely be able to engage in vigorous debate with others over union activity or working conditions without fighting, disrespecting colleagues, or refusing to act as a team.

Once President Trump’s nominees are confirmed by the Senate, the Board will likely adopt a more balanced approach to employer civility rules. Until then, the Board will continue to find civility policies similar to these unlawful, and employers will need to seek review in United States Court of Appeals such as the Fifth Circuit if they wish to retain their civility rules.

Charles “Chip” Zuver is an associate in the firm’s Labor and Employment Department, resident in its Los Angeles office.