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

Majority - Jolly, Circuit Judge

No, T-Mobile's workplace conduct, commitment-to-integrity, and acceptable use policies do not violate Section 8(a)(1) of the NLRA because a reasonable employee would not construe them to prohibit protected activity. Yes, the recording policy does violate Section 8(a)(1) because its broad language would be reasonably construed to prohibit protected activity. Reasoning: 1. Workplace Conduct Policy: The court held that a reasonable employee would interpret the 'workplace conduct' policy, which encourages a 'positive work environment' and 'effective working relationships,' as a general guide for professional conduct in a normal workplace, rather than as a restriction on Section 7 protected activities, which can involve candid or contentious discussions. The Board erred by interpreting how a reasonable employee could conceivably read the policy instead of how they would reasonably read it, which is contrary to the Lutheran Heritage framework and D.C. Circuit precedent. 2. Commitment-to-Integrity Policy: Similarly, the court found the 'commitment-to-integrity' policy, which prohibits 'arguing or fighting,' 'failing to treat others with respect,' or 'failing to demonstrate appropriate teamwork,' to be a common-sense civility guideline. A reasonable employee would understand this policy, prefaced by an expectation of 'integrity, common sense, good judgment, and . . . professional manner,' to refer to general misconduct, akin to other examples like theft. Employees can engage in vigorous debate over union activity without violating these standards. 3. Recording Policy: The court determined that T-Mobile's recording policy, which broadly prohibited any and all photography or recording on corporate premises without permission, was too broad. A reasonable employee, aware of their legal rights, would interpret this policy as forbidding forms of protected concerted activity, such as photographing a wage schedule posted in the workplace. The employer's stated business justifications (preventing harassment, protecting privacy) do not negate the fact that the operative language directly prohibits a means of engaging in protected Section 7 activity. 4. Acceptable Use Policy: The court concluded that the 'acceptable use' policy, which prohibited employees from sharing 'non-public T-Mobile information' without approval, does not violate the NLRA. The policy explicitly limits its scope to 'non-public T-Mobile information' without defining it to include protected wage and benefit information. Absent such an explicit definition, courts presume such policies are designed to protect proprietary business information, not information that may be properly used in protected activity, distinguishing it from cases where 'confidential information' was specifically defined to include 'personnel information'.