T-Mobile had a handbook that asked employees to be professional and maintain a “positive work environment.” The NLRB found that phrase unlawful because “employees would reasonably construe the rule to restrict potentially controversial or contentious communication and discussions, including those protected by Section 7 of the [NLRA], out of fear that the [employer] would deem them to be inconsistent with a ‘positive work environment.’”
Thankfully, the Fifth Circuit declared that the NLRB’s ruling on the policy was “unreasonable” because any reasonable employee would understand that the rule did not prevent the employee from engaging in protected activity.
Of course, this is the same Fifth Circuit that invalidated the NLRB’s position that mandatory arbitration agreements are unlawful, but the NLRB continues to thumb its nose at the Court and find them unlawful. I sure hope the NLRB’s attack on handbooks policies that have nothing to do with an employee’s Section 7 rights stops once President Trump’s Board is fully seated.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.