## Facts

- T-Mobile maintained an employee handbook with four policies: (1) encouraging employees to “maintain a positive work environment,” (2) workplace-conduct rules requiring respect and teamwork and prohibiting “arguing or fighting,” (3) a rule broadly prohibiting workplace photography and audio/video recording without authorization, and (4) an acceptable-use/confidentiality rule restricting access to company electronic information by non-approved individuals and limiting transmission of “nonpublic, proprietary information.”
- An unfair-labor-practice charge alleged the policies interfered with employees’ rights to engage in protected concerted activity under NLRA § 7.
- An Administrative Law Judge proceeding resulted in an NLRB order concluding that all four policies violated NLRA § 8(a)(1) because employees would reasonably read them as restricting protected activity, including contentious workplace discussions, evidence-gathering through recordings, and sharing information about wages and benefits.
- The NLRB ordered T-Mobile to rescind or revise the policies and post a remedial notice.
- T-Mobile petitioned for review in the Fifth Circuit; the NLRB cross-applied for enforcement.

## Issues

1. Whether the “positive work environment” policy would reasonably be construed by employees to prohibit NLRA § 7 protected concerted activity, violating § 8(a)(1).
2. Whether the workplace-conduct rules (e.g., prohibiting “arguing or fighting” and requiring respect and teamwork) unlawfully chilled protected concerted activity under § 8(a)(1).
3. Whether a blanket prohibition on workplace photography and audio/video recording without authorization unlawfully restricted protected concerted activity under § 8(a)(1).
4. Whether the acceptable-use/confidentiality policy’s restriction on sharing “nonpublic, proprietary information” and limiting access by non-approved individuals unlawfully restricted discussion of wages or working conditions under § 8(a)(1).

## Decision

- The court granted T-Mobile’s petition in part and denied it in part, and granted the NLRB’s enforcement application in part and denied it in part.
- The court set aside the NLRB’s findings as to the “positive work environment” policy, the workplace-conduct rules, and the acceptable-use/confidentiality policy, holding the Board’s unlawfulness determinations were not supported under the governing standard.
- The court upheld the NLRB’s finding that the blanket workplace recording prohibition violated § 8(a)(1) and enforced the order as to that policy.

## Legal Principles

- A facially neutral employer rule violates NLRA § 8(a)(1) if employees would reasonably construe the language to prohibit NLRA § 7 activity; the inquiry centers on a reasonable employee’s reading of the rule in context, not speculative or strained interpretations.
- General civility and workplace order rules may be lawful when reasonably read as regulating misconduct (e.g., fighting, disrespectful behavior) rather than restricting protected discussions about working conditions or union activity.
- A broad, undifferentiated workplace ban on photography or audio/video recording can unlawfully chill § 7 activity because employees may use recordings to document workplace conditions or support grievances and administrative charges; absent narrowing language or clear exceptions, employees could reasonably read a blanket ban as prohibiting protected evidence-gathering.
- Confidentiality rules framed as protecting “nonpublic, proprietary” business information are not unlawful on their face absent a showing that a reasonable employee would interpret them to bar protected communications about wages, benefits, or other terms and conditions of employment.

## Conclusion

The Fifth Circuit required a contextual, reasonable-employee reading when evaluating facial challenges to handbook rules, rejecting the NLRB’s invalidation of ordinary civility and proprietary-information policies, but enforcing the Board’s order against a blanket workplace recording ban as an unlawful restraint on protected concerted activity.


T-Mobile USA, Inc. v. NLRB, 865 F.3d 265 (5th Cir. 2017)