Appeals Court: Employers can Require Workers to ‘Maintain a Positive Work Environment.”

A federal appeals court recently rejected a ruling by the National Labor Relations Board (NLRB) that potentially limited the scope of employer anti-harassment policies.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in Atlanta overruled the NLRB by upholding the following workplace conduct provisions in a T-Mobile employee handbook:

•  Employees should “maintain a positive work environment”; and
• It is”unacceptable” for employees to engage “arguing or fighting” with co-workers, “failing to treat others with respect,” and “failing to demonstrate teamwork.”

However, the 5th Circuit let stand the NLRB’s ruling that a provision in the employee handbook prohibiting all photography and audio or video recording in the workplace violated the National Labor Relations Act. The panel said  a reasonable employee “would interpret it to discourage protected activity, such as even an off-duty employee photographing a wage schedule posted on a corporate bulletin board.”

T-Mobile had argued the recording ban was intended to prevent harassment and maintain individual privacy.

The 5th Circuit decision, written by Judge E. Grady Jolly, held that a reasonable employee would not construe the requirement to maintain a positive work environment as a restriction on their right to unionize or engage in collective activity to improve their working conditions.

According to the panel, a “reasonable employee would 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.'”

The  panel said its ruling is consistent with the only other federal circuit to rule on the workplace conduct issues . It noted the U.S. Court of Appeals for the District of Columbia ruled in 2001 that it is “preposterous that employees are incapable of organizing a union or exercising their other statutory rights under the NLRA without resort to abusive or threatening language.” (Adtranz ABB DaimlerBenz Transportation, N.A., Inc. v. NLRB, 253 F.3d 19 (D.C. Cir. 2001).

T-Mobile did not contest the NLRB’s finding that several other provisions in its employee handbook violated the NLRA, claiming it chose to focus on the most “egregious” errors.

The case is T-Mobile USA, Inc. v. NLRB, No. 16-60284 (July 25, 2017). It was based on charges filed in 2014 by the Communication Workers of America.