The National Labor Relations Board (the Board) recently found that an employer's rule of requiring its employees to maintain a positive work environment constituted an unfair labor practice in violation of Sections 7 and 8(a)(1) of the National Labor Relations Act (NRLA or the Act). Significantly, most Idaho employers do not realize that they could be subject to the NLRA and the Board's rulings, including the ruling discussed below, if their businesses "affect commerce." As such, it would be wise to check your employee manual or handbook to make sure that you are not running afoul of the Board's decision by requiring your employees to be happy while at work.
A Brief Intro to the NLRA
Section 7 of the Act sets forth certain rights held by employees in the United States. Section 7 provides that "[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, and shall also have the right to refrain from any or all of such activities . . . ." In turn, Section 8(a)(1) of the NLRA makes it an unfair labor practice for employers "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed" by Section 7 of the NLRA.
The Board has found that where an employer’s handbook or manual contains a rule that explicitly restrains or chills employees in the exercise of their Section 7 rights, then that rule is unlawful under Section 8(a)(1) of the Act. Furthermore, even if a particular rule does not specifically restrain or chill the exercise of Section 7 rights, the rule is nevertheless unlawful under Section 8(a)(1) of the Act if (1) employees would reasonably interpret the rule to prohibit a Section 7 activity, (2) the rule was created by the employer in response to union activity, or (3) the rule has been applied by an employer to restrict employees' exercise of Section 7 rights.
With the foregoing in mind, let's take a look at how the Board addressed the issue of whether an employer could require its employees to have a positive attitude while at work.
The T-Mobile USA, Inc., et al. and Communications Workers of America, et al. Case
T-Mobile is a telecommunications company that provides its services to corporate and residential clients throughout the United States. The Communication Workers of America (the Union) represents T-Mobile technicians, call center representatives, and retail associates. Since January of 2014, T-Mobile created and maintained a provision in its employee handbook entitled "Workplace Conduct," which provided:
[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.
The Union initially filed an unfair labor practice charge against T-Mobile alleging that the "Workplace Conduct" provision of T-Mobile's employee handbook was overly broad and interfered with T-Mobile's employees' Section 7 rights. The Board's regional office investigated the Union's charge and it was determined that a formal complaint should be filed against T-Mobile. A date and time for a hearing was later set to occur before an administrative law judge (ALJ).
In support of the Union's unfair labor practice charge, the general counsel of the Board (essentially arguing on behalf of the Union) argued that the use of vague and ambiguous terms in the provision, such as "positive work environment" and "communicate in a manner that is conducive to effective working relationships," included employee conduct that, viewed subjectively, were "matters of opinion." As a result, T-Mobile employees subject to the provision did not have any "guidelines for determining what type of conduct [T-Mobile] found objectionable," which would serve to "chill the exercise of [the employees'] Section 7 rights." Essentially, the general counsel was arguing that T-Mobile's employees would reasonably read this rule to prohibit concerted activities that were protected by Section 7 of the Act.
In response, T-Mobile argued that the Board had upheld similar policies in the past, and that reasonable employees would interpret the policy as "intended to promote a civil and decent workplace."
After the hearing, the ALJ found T-Mobile's position to be more persuasive and determined that the Workplace Conduct provision did not violate Section 7 of the Act because the policy "merely establishe[d] [T-Mobile's] expectation for professional behavior in the work environment." The ALJ noted that the rule clearly did not "refer to Section 7 activities, and there was no evidence that it was applied in a discriminatory manner or adopted in response to union activity." Moreover, the ALJ found that all T-Mobile employees would, within the context of the rule, understand it to be a prohibition against fighting in the workplace, and that the rule could not reasonably be read to apply to employee activities protected by Section 7 of the Act. Based upon the foregoing, the ALJ recommended to the Board that the complaint be dismissed. The general counsel appealed the ALJ's decision and recommendation to the Board.
Unfortunately for the employer, the Board reversed the ALJ and sided with the Union. The Board found that T-Mobile violated Section 8(a)(1) of the Act by having the Workplace Conduct rule in the employee manual because T-Mobile's "employees would reasonably construe the rule to restrict potentially controversial or contentious communications and discussion, including those protected by Section 7 of the Act, out of fear that [T-Mobile] would [subjectively] deem them to be inconsistent with a 'positive work environment.'" The Board also reasoned that T-Mobile's employees would reasonably understand the rule to prohibit "'arguing' and from making 'detrimental' comments about" T-Mobile. In the context of labor disputes, the Board determined that the rule would violate Section 7 of the Act because such disputes often involve "controversy, criticism of the employer, arguments, and less-than-'positive' statements about terms and conditions of employment." As such, T-Mobile employees reading the rule, in a reasonable fashion, would refrain from "controversial but protected communication in the workplace for fear of running afoul of the rule."
As a result of T-Mobile's violation of the Act, the Board ordered, among other things, that T-Mobile cease and desist from continued maintenance of T-Mobile's "Workplace Conduct" provision, rescind or revise the "Workplace Conduct" provision in T-Mobile's employee handbook, and to post a notice (in a conspicuous location in T-Mobile's facilities) for sixty days stating that the Board had found that T-Mobile had violated federal labor law.
Concluding Comments
It is likely that most Idaho employers do know that they could be subject to the NLRA and the Board's jurisdiction. Fortunately, the Board utilizes detailed guidelines and discretion to determine if it will exercise jurisdiction over a particular charge against an employer. Generally speaking, the Board exercises its jurisdiction over employers that substantial affect commerce in the United States. That said, only Idaho employers whose businesses are purely local are outside the authority of the Board.
As demonstrated by the T-Mobile case, you, as employers, would be unwise to require your employees to maintain a positive attitude while at work. The workplace is at times a contentious place, and employees have the right to be unhappy at work and to communicate their unhappiness with others in the workplace, all of which the Board found is related to your employees' rights to organize and engage in concerted activities for the purpose of protecting employee rights. Whether you like it or not, these are rights protected by the National Labor Relations Act.
While this decision means that you cannot require your employees to be positive at work (potentially under the threat of adverse employment action or punishment), you can encourage your employees to be positive in other ways (e.g., perks), and you likely could fashion policies that are not as broad as T-Mobile's. Of course, policies such as this should be narrowly tailored, well defined, and not left open to an interpretation that would violate the National Labor Relations Act. If you are uncertain as to whether a provision contained in your employee manual may be in violation of the Act, we recommend that you contact an employment or labor law attorney for guidance and advice. It may save your business money in the long run.
