T-Mobile USA, Inc. v. National Labor Relations Board
865 F.3d 265
5th Cir.2017Background
- In 2014 the NLRB challenged four T‑Mobile employee handbook provisions as violating Section 8(a)(1) of the NLRA by chilling Section 7 concerted activity: (1) a "workplace conduct" rule requiring a "positive work environment," (2) a "commitment‑to‑integrity" rule prohibiting "arguing or fighting," "failing to treat others with respect," and similar items, (3) a broad recording ban prohibiting photography/audio/video on premises without authorization, and (4) an "acceptable use" rule barring non‑approved access to non‑public information resources.
- The ALJ found two of the policies unlawful (commitment‑to‑integrity and acceptable use) but upheld workplace conduct and recording rules; the NLRB reversed in part and held all four unlawful on the basis that a reasonable employee would construe each to bar protected activity.
- T‑Mobile petitioned the Fifth Circuit for review; the NLRB moved to enforce its order. The circuit applied the Lutheran Heritage two‑step framework (explicit restriction, then whether a reasonable employee would construe the rule to prohibit Section 7 activity) and the "reasonable employee" objective standard.
- The court deferred in part to Board findings supported by substantial evidence but reviewed legal conclusions de novo and emphasized that rules must receive a "reasonable reading" in context, not the most expansive conceivable reading.
- The Fifth Circuit: reversed enforcement as to the workplace conduct, commitment‑to‑integrity, and acceptable use policies; enforced the Board’s order as to the recording policy (found unlawful).
Issues
| Issue | Plaintiff's Argument (NLRB) | Defendant's Argument (T‑Mobile) | Held |
|---|---|---|---|
| Whether "workplace conduct" rule ("maintain a positive work environment") unlawfully chills Section 7 activity | Rule would reasonably be read to discourage candid/robust union discussions | Reasonable employees would read it as common‑sense civility requirement tied to work performance | Denied enforcement as to this rule — reasonable employee would not construe it to bar Section 7 activity |
| Whether "commitment‑to‑integrity" prohibitions ("arguing or fighting," "fail to treat others with respect") unlawfully chill Section 7 activity | These prohibitions would inhibit robust labor discussion and could be read to ban protected debate | Language is a routine misconduct list; reasonable employees would limit it to true misconduct and still engage in heated debate without violation | Denied enforcement as to this rule — reasonable employee would not construe it to bar Section 7 activity |
| Whether recording/photography ban unlawfully chills Section 7 activity | Broad ban on recording without authorization would deter protected uses (e.g., photographing wage postings, documenting discussions) | Employer interest in privacy, harassment prevention, and confidential information protection justifies the ban | Enforcement granted as to this rule — reasonable employee would construe it to prohibit some protected activity |
| Whether acceptable‑use policy prohibiting access/share of non‑public information unlawfully chills Section 7 activity | Policy could be read to bar sharing wage/benefit information among employees | Limitation to "non‑public T‑Mobile information" signals protection of proprietary business data, not employee wage/benefit discussions | Denied enforcement as to this rule — reasonable employee would not read it to prohibit protected wage/benefit disclosures |
Key Cases Cited
- Flex Frac Logistics, L.L.C. v. NLRB, 746 F.3d 205 (5th Cir.) (describes Lutheran Heritage framework and chilling‑effect inquiry)
- Arkema, Inc. v. NLRB, 710 F.3d 308 (5th Cir.) (applies Lutheran Heritage two‑part test)
- D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir.) (standard for deference to Board interpretations of NLRA)
- Adtranz ABB Daimler‑Benz Transp., N.A., Inc. v. NLRB, 253 F.3d 19 (D.C. Cir.) (upheld civility/teamwork rules against NLRB overbroad reading)
- Community Hospitals of Cent. Cal. v. NLRB, 335 F.3d 1079 (D.C. Cir.) (rule against disrespect/insubordination read to permit vigorous protected debate)
- Lutheran Heritage Village‑Livonia, 343 NLRB 646 (sets two‑step test and "reasonable reading" standard)
- Lafayette Park Hotel, 326 NLRB 824 (employer may lawfully protect proprietary information; policies construed not to bar wage discussions when read reasonably)