T-Mobile USA, Incorporated v. NLRB , 865 F.3d 265 ( 2017 )

Case: 16-60284 Document: 00514086892 Page: 1 Date Filed: 07/25/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60284 FILED
July 25, 2017
T-MOBILE USA, INCORPORATED,
Lyle W. Cayce
Clerk
Petitioner - Cross Respondent
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent - Cross Petitioner
Consolidated with 16-60497
NATIONAL LABOR RELATIONS BOARD,
Petitioner
v.
METROPCS COMMUNICATIONS, INCORPORATED,
Respondent
On Petitions for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
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Before KING, JOLLY, and PRADO, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In this appeal, the National Labor Relations Board (“NLRB” or “Board”)
challenges certain T-Mobile 1 workplace rules, which it contends prohibit
employees from exercising unionizing rights.
T-Mobile’s employee handbook (1) encouraged employees to “maintain a
positive work environment”; (2) prohibited “[a]rguing 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 determined that all four provisions violated the
National Labor Relations Act because each of them discouraged unionizing or
other concerted activity protected by the Act. T-Mobile resists and seeks
review of the Board’s order.
We hold that the Board erred in finding that a reasonable employee
would construe policies (1), (2), and (4) to prohibit protected activity. However,
we will not upset the Board’s finding that a reasonable employee would
construe policy (3) to prohibit protected activity. Accordingly, we grant in part
and deny in part enforcement of the Board’s order.
I.
T-Mobile and MetroPCS are telecommunications companies that market
cell phones and related services, with offices and retail locations located
throughout the United States. In 2014, based on charges filed by the
1 We refer to petitioner T-Mobile USA, Inc., and cross-respondent MetroPCS
Communications, Inc., collectively as “T-Mobile.” T-Mobile and MetroPCS are affiliated
companies; T-Mobile acquired MetroPCS in 2013.
2
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Communication Workers of America, 2 the NLRB brought a complaint against
T-Mobile alleging that several of the provisions of T-Mobile’s employee
handbook violated the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151
et seq. This appeal concerns four provisions of the handbook that the NLRB
determined were forbidden under the NLRA. 3
A.
The “workplace conduct” policy is found under the “Standards of
Conduct” heading in the employee handbook. The policy provides:
[T-Mobile] expects all employees to behave in a professional
manner that promotes efficiency, productivity, and cooperation.
Employees are expected to maintain a positive work environment
by communicating in a manner that is conducive to effective
working relationships with internal and external customers,
clients, co-workers, and management. 4
2The Communications Workers of America is an intervenor in this case and has filed
a separate brief in support of the NLRB’s position.
3 The NLRB originally alleged that eleven other provisions of the employee handbook
also violated the NLRA. T-Mobile did not contest the administrative law judge’s (“ALJ’s”)
finding that these eleven provisions violated the NLRA, and does not challenge on appeal the
Board’s summary affirmance of the ALJ’s findings regarding those provisions. Rather, T-
Mobile maintains that it chose to focus its appeal efforts on only what it considers the most
“egregious” errors by the NLRB. Accordingly, the Board is granted summary enforcement of
the order as it pertains to those eleven provisions. See Sara Lee Bakery Grp., Inc. v. NLRB,
514 F.3d 422, 429 (5th Cir. 2008) (“[W]hen an employer does not challenge a finding of the
Board, the unchallenged issue is waived on appeal, entitling the Board to summary
enforcement.”).
4 Although the entire policy was struck, the General Counsel never alleged that the
first sentence of the policy violated the Act; he only alleged that the second sentence was
improper.
3
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The “commitment-to-integrity” policy 5 is found under the “Conducting
Business” heading in the code of business conduct. The policy begins with the
preface:
At T-Mobile, we expect all employees, officers and directors to
exercise integrity, common sense, good judgment, and to act in a
professional manner. We do not tolerate inconsistent conduct.
While we cannot anticipate every situation that might arise or list
all possible violations, the acts listed below are unacceptable.
The commitment-to-integrity policy then lists seventeen non-inclusive
examples of “unacceptable” acts, including, in relevant part:
Arguing or fighting with co-workers, subordinates or supervisors;
failing to treat others with respect; or failing to demonstrate
appropriate teamwork. 6
The “recording” policy is found under the “Workplace Expectations”
heading of the employee handbook. The policy provides:
To prevent harassment, maintain individual privacy, encourage
open communication, and protect confidential information
employees are prohibited from recording people or confidential
information using cameras, camera phones/devices, or recording
devices (audio or video) in the workplace. Apart from customer
calls that are recorded for quality purposes, employees may not
tape or otherwise make sound recordings of work-related or
workplace discussions. Exceptions may be granted when
participating in an authorized [T-Mobile] activity or with
permission from an employee’s Manager, HR Business Partner, or
the Legal Department. If an exception is granted, employees may
5 The parties use the term “commitment to integrity policy” as shorthand for this
policy.
Other listed examples include destroying company property, dishonesty, criminal
6
conduct, inappropriate dress, and sleeping on the job. One of the other examples, “[m]aking
slanderous or detrimental comments about the Company,” was found to be improper by the
ALJ; T-Mobile has not contested that finding.
4
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not take a picture, audiotape, or videotape others in the workplace
without the prior notification of all participants.
Finally, the “acceptable use” policy is found under the “Security” heading
of T-Mobile’s “Acceptable Use Policy for Information and Communication
Resources.” The policy provides:
Users may not permit non-approved individuals access to
information or information resources, or any information
transmitted by, received from, printed from, or stored in these
resources, without prior written approval from an authorized T-
Mobile representative. 7
B.
The ALJ and the Board differed in their respective conclusions. The
ALJ, ruling on a stipulated record, found that both the commitment-to-
integrity policy and the acceptable use policy violated the NLRA, but that the
workplace conduct policy and the recording policy did not. T-Mobile appealed,
and the General Counsel cross-appealed, to the Board. A three-member panel
of the Board held that the ALJ correctly found that the commitment-to-
integrity policy and the acceptable use policy violated the NLRA, but that the
ALJ had erred in finding that the other two policies did not. The Board thus
held that all four of the challenged policies violated the NLRA and issued an
order to that effect.
T-Mobile timely petitioned this Court for review of the NLRB’s decision.
The Board has filed a cross-application for enforcement of its order. See 29
U.S.C. §§ 160(e), (f).
7 The “Security” section otherwise provides that employees must help keep T-Mobile
information resources secure; that employees must secure resources and not disclose their
passwords; that employees are required to use passwords, etc. The ALJ found that other
parts of the “Acceptable Use Policy,” including parts limiting use of information resources to
“legitimate business purposes,” to be invalid; T-Mobile has not contested that finding.
5
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II.
A.
Section 7 of the NLRA provides a declaration of statutory policy:
“[e]mployees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
Section 8(a)(1) of the Act in turn provides enforcement of that policy by stating
that it shall be an “unfair labor practice” to “interfere with, restrain, or coerce
employees in the exercise of the rights” protected by Section 7. 29 U.S.C.
§ 158(a)(1). Here, the “appropriate inquiry” is whether T-Mobile’s rules for
workplace conduct violate § 8(a)(1) by chilling a reasonable employee in the
exercise of his or her Section 7 rights. See Flex Frac Logistics, L.L.C. v. NLRB,
746 F.3d 205, 209 (5th Cir. 2014). Indeed, our precedent has previously noted
that “[w]here the rules are likely to have a chilling effect, the Board may
conclude that their maintenance is an unfair labor practice, even absent
evidence of enforcement.” Id. (quoting Lafayette Park Hotel, 326 N.L.R.B. 824,
825 (1998)) (ellipses omitted).
In order to determine whether a workplace rule violates Section 8(a)(1),
this Court applies the two-part Lutheran Heritage framework. First, the Court
decides “whether the rule explicitly restricts activities protected by Section 7.”
Flex Frac, 746 F.3d at 208-09 (quoting Lutheran Heritage Village-Livonia, 343
N.L.R.B. 646, 646 (2004)); see also NLRB v. Arkema, Inc., 710 F.3d 308, 318 (5th
Cir. 2013). Second, even if the restriction is not explicit, the rule may still
violate Section 8(a)(1) where “(1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) the rule was promulgated in
6
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response to union activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights.” Id. at 209 (quoting Lutheran Heritage, 343 N.L.R.B.
at 647). 8 When construing a work rule, the Board must “give the rule a
reasonable reading.” Lutheran Heritage, 343 N.L.R.B. at 646. Additionally, the
Board “must refrain from reading particular phrases in isolation” and “must
not presume improper interference with employee rights.” Id. The
appropriate, objective inquiry is not whether the rules “could conceivably be
read to cover Section 7 activity, even though that reading is unreasonable,” but
rather whether “a reasonable employee reading the[] rules would . . . construe
them to prohibit conduct protected by the Act.” Id. at 647 (emphasis added).
The “reasonable employee,” although not specifically defined in Lutheran
Heritage or subsequent jurisprudence, refers to a hypothetical, objective
standard analogous to the “reasonable person” in tort law. Cf. Restatement
(Second) of Torts § 283 (1965) (“[T]he standard of conduct to which [an actor]
must conform to avoid being negligent is that of a reasonable man under like
circumstances.”). In this case, where the record does not suggest that the rules
have been applied in the context of union or collective activity, the “reasonable
employee” is a T-Mobile employee aware of his legal rights but who also
interprets work rules as they apply to the everydayness of his job. The
reasonable employee does not view every employer policy through the prism of
the NLRA. Indeed, “[the Board] must not presume improper interference with
employee rights.” Lutheran Heritage, 343 N.L.R.B. at 646. The question is
8 Here, there is no contention that the rule explicitly restricts protected activity, or
that the rule was promulgated in response to union activity, or that the rule has been applied
to restrict the exercise of protected activity; the NLRB only alleges generally that employees
would reasonably construe the language to prohibit protected activity.
7
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whether a reasonable T-Mobile employee “would reasonably construe the
language to prohibit Section 7 activity.” Lutheran Heritage, 343 N.L.R.B. at 647
(emphasis added).
B.
The Board’s findings of fact are conclusive if supported by substantial
evidence. 29 U.S.C. §§ 160(e)-(f); Flex Frac, 746 F.3d at 207. Courts also defer
to the Board’s interpretation of the NLRA “so long as it is rational and
consistent with the Act.” D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 349 (5th
Cir. 2013) (citations and quotations omitted). “Our deference extends to our
review of both the Board’s findings of fact and its application of the law. It
does not, however, extend to the Board’s legal conclusions . . . which we review
de novo.” J. Vallery Elec., Inc. v. NLRB, 337 F.3d 446, 450 (5th Cir. 2003). 9
Still, “[a]lthough we accord Board findings a measure of deference, our review
is more than a mere rubber stamp of the decision.” Arkema, 710 F.3d at 314
(citations and quotations omitted).
III.
The NLRB found that each of the four policies at issue—the workplace
conduct policy, the commitment-to-integrity policy, the recording policy, and
9 It is unclear whether the Board’s findings in this case are entitled to deference. The
Board did not engage in any factfinding or interpretation of the provisions of the NLRA; it
only made legal determinations based on a stipulated record as to whether the hypothetical
“reasonable employee” would be discouraged from protected activity based on the text of the
policies at issue. See NLRB v. Yeshiva Univ., 444 U.S. 672, 691 (1980) (refusing to defer to
Board order decided “on the basis of conclusory rationales rather than examination of the
facts of each case”); cf. Dresser-Rand Co. v. NLRB, 838 F.3d 512, 519 (5th Cir. 2016) (noting
that Board conclusion that worker misconduct was objectively “serious enough” to deny
reinstatement is a legal conclusion entitled to de novo review (citations and quotations
omitted)). Because both parties appear to assume that the NLRB’s findings are entitled to a
degree of deference, we will assume, without deciding, that they are.
8
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the acceptable use policy—violated the Act because “employees would
reasonably construe the language to prohibit Section 7 activity.” Lutheran
Heritage, 343 N.L.R.B. at 647. We address each policy in turn.
A.
We first address the workplace conduct policy. 10 The Board found that
the workplace conduct policy, which encouraged employees to maintain a
“positive work environment,” violated the NLRA because a reasonable
employee would read the language to discourage protected activity, including
candid, potentially contentious discussions of unionizing. This finding is
unreasonable. 11
To a “reasonable employee,” context matters in the interpretation of
these rules. The policy is titled “Workplace Conduct.” The rule refers to a
positive work environment and effective working relationships, and requires
employees to behave in a way that “promotes efficiency, productivity, and
cooperation,” with the obvious implication “with respect to work.” In the
context of the workplace presented in the record, this rule addresses a normal
workplace, on a normal workday.
A reasonable employee of T-Mobile would interpret the policy as
requiring professional manners, positive work environment, effective and
10 As earlier noted, the policy provided, in full:
[T-Mobile] expects all employees to behave in a professional manner that
promotes efficiency, productivity, and cooperation. Employees are expected to
maintain a positive work environment by communicating in a manner that is
conducive to effective working relationships with internal and external
customers, clients, co-workers, and management.
11 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.” See
https://www.youtube.com/watch?v=O2LNUOelJx4&feature=youtu.be&t=5m26s.
9
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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.” Lutheran Heritage, 343 N.L.R.B. at 646; see also id. (“[We]
must not presume improper interference with employee rights.”). 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. See Lutheran Heritage, 646 N.L.R.B. at
647.
This reading of these workplace rules is consistent with the only other
circuit to have spoken on the matter. The DC Circuit in Adtranz ABB Daimler-
Benz Transportation, N.A., Inc. v. NLRB, 253 F.3d 19 (D.C. Cir. 2001),
addressed a policy similar to the ones at issue. There, asserting expected
conduct from employees such as “[t]rust and respect for self and others,”
“[t]eamwork and cooperation,” and “[e]ffective communication,” the company
prohibited “abusive or threatening language to anyone on company premises.”
Id. at 25. The NLRB had declared this rule in violation of the NLRA on the
grounds that it prohibited an employee from engaging in heated labor
discussions. Id. at 25-26. The DC Circuit did not buy in: “This position is not
‘reasonably defensible.’ It is not even close.” Id. at 26. The court further
rejected the NLRB’s argument that the company’s “effort to maintain a civil
and decent workplace is an unfair labor practice that threatens the statutory
rights of [its] employees under the NLRA.” Id. at 25. The DC Circuit was in
no mood for temporizing, saying that “it is preposterous that employees are
10
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incapable of organizing a union or exercising their other statutory rights under
the NLRA without resort to abusive or threatening language.” Id. at 25-26.
Still further, in Community Hospitals of Central California v. NLRB, 335
F.3d 1079, 1087-88 (D.C. Cir. 2003), the DC Circuit continued to reject the
Board’s displacement of facially-neutral work rules. The court held that a rule
prohibiting “insubordination . . . or other disrespectful conduct,” “read in
context,” “applies to incivility and outright insubordination, in whatever
context it occurs.” Id. at 1088. Furthermore, it held, such a rule would not
restrict protected activity, including “vigorous proselytizing for or against a
union.” Id. 12
In sum, we conclude that a reasonable employee would not construe a
requirement to “maintain a positive work environment by communicating in a
manner that is conducive to effective working relationships” to restrict Section
7 activity. We therefore deny enforcement of the Board’s order as to the
workplace conduct policy.
12 Accord, e.g., Care One at Madison Ave., LLC v. NLRB, 832 F.3d 351, 363 (D.C. Cir.
2016) (“[U]rging employees to behave with ‘dignity and respect’ would not be unlawful on its
own, but for the unlawful implication [from other context].” (emphasis added)); see also Palms
Hotel & Casino, 344 N.L.R.B. 1363, 1367-68 (2005) (approving of ban on “conduct which is or
has the effect of being injurious, offensive, threatening, intimidating, coercing, or interfering”
and noting that “reasonable employees would be []capable of grasping the expectation that
they comport themselves with general notions of civility and decorum in the workplace”);
Lutheran Heritage, 343 N.L.R.B. at 648-49 (upholding rule banning “harassment” and noting
that “both employees and employers have a substantial interest in promoting a workplace
that is ‘civil and decent’”); Care One, 832 F.3d at 363 (“We have made clear that employers
have the prerogative of demanding employees comply with generally accepted notions of
civility [without running afoul of the NLRA].” (citations and quotations omitted)).
11
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B.
The Board 13 also found that the commitment-to-integrity policy 14
violated the NLRA because the policy would inhibit robust discussion of labor
issues. The rule, like the workplace conduct rule, is on its face, only a common
sense civility guideline. See Lutheran Heritage, 646 N.L.R.B. at 646-47; Adtranz,
253 F.3d at 25-26; Community Hospitals, 335 F.3d at 1087-88.
The policy, which prohibits “arguing or fighting,” “failing to treat others
with respect,” and “failing to demonstrate appropriate teamwork,” is prefaced
by the conventional, common-sense admonition that T-Mobile expects its
employees to “to exercise integrity, common sense, good judgment, and to act
in a professional manner.” These acts appear in a long, non-inclusive list of
prohibited activity, including theft, fraud, dishonesty, and sleeping on the job.
These examples that define the parameters of the rule address misconduct. As
the DC Circuit noted in addressing such a rule, “[a]lthough [reasonable]
employees are perhaps unlikely to know the term ejusdem generis, they no
doubt grasp as well as anyone the concept it encapsulates.” Community
Hospitals, 335 F.3d at 1088.
Here, a reasonable employee would understand the language of the
commitment-to-integrity policy to refer to similar misconduct. Furthermore, a
13 The Board adopted the opinion of the ALJ as to the commitment-to-integrity policy.
14 The policy provided, in full:
At T-Mobile, we expect all employees, officers and directors to exercise
integrity, common sense, good judgment, and to act in a professional manner.
We do not tolerate inconsistent conduct. While we cannot anticipate every
situation that might arise or list all possible violations, the acts listed below
are unacceptable . . .
Arguing or fighting with co-workers, subordinates or supervisors; failing to
treat others with respect; or failing to demonstrate appropriate teamwork.
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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.” As the Board delineated in
Lutheran Heritage, we view the rule from the perspective of the reasonable
employee, not from the point of view of the exceptions to reasonableness. See
646 N.L.R.B. at 646-47.
Accordingly, we decline to enforce the Board’s order as to the
commitment-to-integrity policy.
C.
The Board next found that T-Mobile’s recording policy 15 violates the
NLRA because it would discourage workers from engaging in protected
activity.
We are primarily concerned with the broad reach of the recording ban.
The ban, by its plain language, encompasses any and all photography or
recording on corporate premises at any time without permission from a
supervisor. This ban is, by its own terms alone, stated so broadly that a
reasonable employee, generally aware of employee rights, would interpret it to
15 The policy provided, in full:
To prevent harassment, maintain individual privacy, encourage open
communication, and protect confidential information employees are prohibited
from recording people or confidential information using cameras, camera
phones/devices, or recording devices (audio or video) in the workplace. Apart
from customer calls that are recorded for quality purposes, employees may not
tape or otherwise make sound recordings of work-related or workplace
discussions. Exceptions may be granted when participating in an authorized
[T-Mobile] activity or with permission from an employee’s Manager, HR
Business Partner, or the Legal Department. If an exception is granted,
employees may not take a picture, audiotape, or videotape others in the
workplace without the prior notification of all participants.
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discourage protected concerted activity, such as even an off-duty employee
photographing a wage schedule posted on a corporate bulletin board. Cf. Flex
Frac, 746 F.3d at 208 (“A workplace rule that forbids the discussion of
confidential wage information between employees patently violates section
8(a)(1).” (citations, quotations, alterations, and ellipses omitted)); accord Whole
Foods Mkt. Grp., Inc. v. NLRB, No. 16-0002-AG, --- F. App’x ---, 2017 WL
2374843, at *2 (2d Cir. June 1, 2017) (holding that where “no-recording policies
prohibited all recording without management approval, employees would
reasonably construe the language to prohibit recording protected by Section 7”
(citations and quotations omitted)).
T-Mobile argues that the ban’s stated purposes—“[t]o prevent
harassment, maintain individual privacy, encourage open communication, and
protect confidential information”—are legitimate business interests that
ordinarily would justify the ban. But merely reciting such justifications does
not alter the fact that the operative language of the rule on its face prohibits
protected Section 7 activity, including Section 7 activity wholly unrelated to
those stated interests.
Unlike the “workplace conduct” policy and the “commitment-to-
integrity” policy, the recording policy forbids certain forms of clearly protected
activity. We have earlier held that held those two policies would not be
interpreted by a reasonable T-Mobile employee as forbidding protected
activity. By contrast, a reasonable T-Mobile employee, aware of his legal
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rights, would read the language of the recording policy as plainly forbidding a
means of engaging in protected activity. 16
Because a reasonable employee would construe the recording policy to
prohibit forms of protected activity, we hold that the Board’s determination
that the recording policy violated the NLRA is supported by a reasonable
interpretation of the record. Its order will be enforced in that respect.
D.
Finally, the Board 17 found that the acceptable use policy 18 violated the
NLRA because a reasonable employee would construe it to prohibit protected
activity such as accessing and sharing wage and benefit information contained
in his or her e-mail.
16 The parties dispute whether a right to photograph and record the workplace exists
under the NLRA in certain circumstances. Compare, e.g., Whole Foods Mkt., Inc., 363 NLRB
No. 87 at nn.7-8 (Dec. 24, 2015) (“[O]ur case law illustrates a wide array of protected uses for
[electronic recording] devices.”), with Flagstaff Med. Ctr., Inc., 357 N.L.R.B. 659, 683 (2011)
(“[T]he specific right to take photos in the workplace would not reasonably seem to come to
mind as an inherent component of the more generalized fundamental rights of employees set
forth in Section 7 of the Act.”). We need not decide whether and to what extent such a right
exists; we are satisfied that, as in the example provided above, there are circumstances in
which taking photographs or recordings may be protected activity, and that T-Mobile has not
provided any legitimate reason why its ban ought to be allowed to encompass such activity.
The Board filed a motion to strike a section of T-Mobile’s reply brief, arguing that T-
Mobile waived any argument that no NLRA right to photograph and record existed by failing
to address the argument in its principal brief. Because we decline to address the argument,
the Board’s motion is DENIED as moot.
17 The Board adopted the opinion of the ALJ.
18 The policy provided, in full:
Users may not permit non-approved individuals access to information or
information resources, or any information transmitted by, received from,
printed from, or stored in these resources, without prior written approval from
an authorized T-Mobile representative.
15
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The NLRB’s decision, however, disregards the context in which the
acceptable use policy is to be read and understood. The “Scope” section of the
acceptable use policy explicitly states that the policy “applies to all non-public
T-Mobile information.” 19 Thus the policy only prohibits employees from
sharing non-public information.
Where a company policy prohibits the disclosure of non-public
information, courts presume that a reasonable employee would not construe
the policy to prohibit the disclosure of information that may be properly used
in protected activity, such as wage and benefit information, so long as the
policy does not explicitly state that it encompasses such information. See
Lafayette Park Hotel, 326 N.L.R.B. at 826 (“Although the term ‘hotel-private’ is
not defined in the rule, employees in our view reasonably would understand
that the rule is designed to protect that [proprietary business information]
interest rather than to prohibit the discussion of their wages.”); accord K-Mart,
330 N.L.R.B. 263, 263 (1999); cf. Flex Frac, 746 F.3d at 210 (finding non-
disclosure policy violated NLRA where the policy specifically defined
“Confidential Information” to include “personnel information,” i.e., wage and
benefit information). Here, as in Lafayette Park and unlike in Flex Frac, the
policy does not define “non-public T-Mobile information” in a way that would
lead a reasonable worker to believe that it includes protected wage and benefit
19 The limiting language states, in full, “This policy applies to all non-public T-Mobile
information and any communication resource owned, leased, or operated by or for T-Mobile,
and computers or devices, including those belonging to employees or contractors to the extent
that these resources are used for T-Mobile business purposes. All information created in
connection with T-Mobile business is the property of T-Mobile.” In other words, the policy
explicitly states that it applies only to non-public information and other resources pertaining
to that non-public information.
16
Case: 16-60284 Document: 00514086892 Page: 17 Date Filed: 07/25/2017
No. 16-60284
Cons. w/ No. 16-60497
information. 20 Instead, the policy only applies to the sort of proprietary
business information that an employer may properly restrict its employees
from sharing outside of the company. See Lafayette Park Hotel, 326 N.L.R.B. at
826 (“[B]usinesses have a substantial and legitimate interest in maintaining
the confidentiality of private information, including . . . trade secrets, contracts
with suppliers, and a range of other proprietary information.”).
Thus the NLRB’s finding that a reasonable worker would construe the
acceptable use policy to discourage protected activity is unreasonable, and we
deny enforcement as to that part of its order.
IV.
To sum up: We hold that the Board’s findings regarding the workplace
conduct policy, the commitment-to-integrity policy, and the acceptable use
policy are unreasonable. The Board’s order is denied enforcement as to those
policies. However, the Board’s findings regarding the recording policy is
reasonable, and the Board’s order is enforced as to that policy. The Board’s
order is also summarily enforced as to the eleven polices not challenged by T-
Mobile on appeal.
Accordingly, T-Mobile’s petition is GRANTED IN PART and DENIED
IN PART and the NLRB’s cross-application is correspondingly DENIED IN
PART and GRANTED IN PART. 21
20 In an earlier version of a confidential information policy contained in a separate
document, T-Mobile did suggest that non-public information includes protected wage and
benefit information. The NLRB found that this provision violated the NLRA and struck it
down, and T-Mobile did not contest this finding. Accordingly, with respect to the acceptable
use policy now on appeal, we do not consider the now-invalidated definition of confidential
information.
21 The Board’s motion to strike portions of T-Mobile’s reply brief is DENIED as moot.
17