Labor Relations Insight

by Phil Wilson

Employee Handbooks: Finally, a Little Sanity

Every summer my family visits Dodgeville, Wisconsin to camp with my great friend Greg and his family. And almost every year we make the pilgrimage to Taliesin, Frank Lloyd Wright’s home and studio just up the road in Spring Green. If you don’t know much about Mr. Wright here are some highlights. He was a genius. His architecture work was at least 50 years ahead of his time. Like a lot of geniuses, he was a bit nutty. If you have the misfortune of being married to, or fathered by, me or my friend (we are also a bit nutty), you are subjected to a campfire reading of Mr. Wright’s description of his home. He called it a “shining brow” on a hill. We affectionately call this a “mockutecture” reading. This might be why Greg and I had to visit Taliesin on our own this year. One of Wright’s big ideas was something called “compress and release.” He liked to put people in somewhat uncomfortable spaces (like hallways) that are narrow, dark, and have low ceilings. It was his way of saying, “nothing to see here, please move along.” As you quickly and uncomfortably move through these spaces into the rooms they connect, something amazing happens. You step out of that cave-like space into a bright and spacious room. Your body relaxes and expands as you take a deep breath and spread out. You don’t just enter one of his rooms – you feel them.

I got a similar feeling this week when I read the 5^th Circuit’s opinion in T-Mobile USA, Inc. v. NLRB. After wandering around for years in the constrained and dark period of the Pearce Board’s employee handbook jurisprudence, I felt I had walked out into the bright and wide-open space of… common sense. In T-Mobile, the NLRB held that 4 handbook provisions violated the NLRA. The T-Mobile handbook: (1) encouraged employees to “maintain a positive work environment”; (2) prohibited “arguing 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 found that all four provisions violated the NLRA because they discouraged unionizing or other concerted activity protected by the Act. Importantly, none of these handbook provisions had been enforced against employees trying to organize. Instead the Board found that the mere presence of these provisions in the handbook would chill a reasonable employee from exercising rights under the Act. No, really. That’s what they said. Which is why you won’t find it surprising that T-Mobile asked the 5^th Circuit if they could apply a little adult supervision to these handbook cases. To give the Board credit, the 5^th Circuit did find that the prohibition on “all photography and video recording” at work was unlawful. (If your handbook says that you should have your labor attorney give that a look-see). The Board did not fare as well on the rest of the provisions question. As the 5^th Circuit stated in its opinion:

The question is whether a reasonable T-Mobile employee ‘would reasonably construe the language to prohibit Section 7 activity.’

The Court found that each of the three provisions would not be construed that way by a reasonable employee. They explained:

A reasonable employee of T-Mobile would interpret the policy as requiring professional manners, positive work environment, effective and courteous communications, getting along with everybody, common sense, and people skills. The reasonable T-Mobile employee would understand the rule to express a universally accepted guide for conduct in a responsible workplace. Indeed, the Board itself admonishes that these rules must be given a “reasonable reading.” In other words, the NLRB erred by interpreting the rule as to how the reasonable employee could, rather than would, interpret these policies—an analysis eschewed by the Board’s own precedent.

In addition to numerous case citations, in a footnote the 5^th Circuit even referenced the renowned legal scholar Stephen Colbert:

Indeed, The Late Show host Stephen Colbert mocked the Board’s decision in this case, joking that “the government says I can’t legally ask [my employees] to be happy.

The Court found that “common sense civility guidelines” like a commitment to integrity are not illegal. Glad we were finally able to get that cleared up. Lately every time I read a handbook provision I start feeling repressed. The Court also held that T-Mobile can restrict employees from sharing non-public company information. Again, the court found that reasonable employees aren’t complete idiots (OK, they didn’t say it exactly like that). Instead they found that the Board was unreasonable in searching for a way to construe the policy to prohibit protected activity. In perhaps my favorite line, the Court found that a reasonable employee should be:

…fully capable of engaging in debate over union activity or working conditions, even vigorous or heated debate, without inappropriately “arguing or fighting,” “failing to treat others with respect,” or “failing to demonstrate appropriate teamwork.”

Amen. Hopefully this is just the beginning of bringing a little bit of sanity – and common sense – back to our labor laws.