Monday, August 14, 2017

Citing Stephen Colbert, the Fifth Circuit Rolls Back Several NLRB Handbook Positions

Not long ago, I wrote about how the National Labor Relations Board’s (NLRB's) positions on various handbook policies transcended common sense.  In a recent opinion, a three-judge panel of the Fifth Circuit Court of Appeals agreed, holding that the following employer handbook policies did not, contrary to the NLRB’s opinion, violate Section 7 of the National Labor Relations Act and “chill” an employee’s organizing rights: (1) encouraging employees to “maintain a positive working environment”; (2) prohibiting "arguing or fighting," "failing to treat others with respect," and "failing to demonstrate appropriate teamwork"; and (3) prohibiting access to electronic information by non-approved individuals. See T-Mobile USA, Inc. v. National Labor Relations Board, No. 16-60284 (5th Cir. July 25, 2017). 
 
According to the Court, the relevant inquiry isn’t whether a rule “could” conceivably be read to cover Section 7 activity, but rather whether a reasonable employee reading the rule “would” construe it to prohibit Section 7 activity.  A reasonable employee is one who is aware of her legal rights, "but who also interprets work rules as they apply to the everydayness” of her job.  

As I said in my earlier blog, and as the Court reasoned, reasonable people understand the meaning of work rules such as, “treat employees with respect,” and “don’t fight at work.”  To drive home its point, the Court, in a footnote, cited a YouTube clip from Stephen Colbert mocking the NLRB’s position.  And if you’re wondering, the Fifth Circuit doesn’t routinely cite to YouTube in its opinions. The decision is important for Texas employers because it reinforces the idea that an employer has the right to enact “reasonable” work rules.