Thursday, July 27, 2017

Employer Policy that Bans Use of Cameras Violates the NLRA

T-Mobile USA, Incorporated v. NLRB, ___F.3d___,No. 16-60284 (5th Cir. July 25, 2017), is an important decision to be aware of. The Fifth Circuit enforced a National Labor Relations Board  which held that an employer's policy that banned the use of "cameras, camera phones/devices, or recording devices (audio or video) in the workplace" was unlawful. The court summarized the relevant standard as follows:

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 NLRB 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 NLRB 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 Case: 16-60284 Document: 00514086892 Page: 6 Date Filed: 07/25/2017 No. 16-60284 Cons. w/ No. 16-60497 7 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 NLRB at 647).8 When construing a work rule, the Board must “give the rule a reasonable reading.” Lutheran Heritage, 343 NLRB 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 NLRB at 646. 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. 

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2d Circuit Holds Union Speech Can Be Protected By The First Amendment

Montero v. City of Yonkers, ___F.3d___(2d Cir. May 16, 2018), is an important First Amendment decision.