August 2, 2017

Fifth Circuit Refuses to Enforce NLRB’s Decision that Employer Rule Requiring “Positive” Work Environment Violates NLRA

BY: Thomas Lenz, L. Brent Garrett

Employers that have become exasperated at the regulatory zeal of the National Labor Relations Board (NLRB) in the area of workplace policies scored a welcome victory in the Fifth Circuit Court of Appeals.  In T-Mobile USA, Inc. v. National Labor Relations Board, 2017 WL 3138612 (5th Cir. July 25, 2017), the Fifth Circuit refused to enforce an NLRB order that declared that an employee handbook policy requiring employees to maintain a “positive work environment” violated the National Labor Relations Act (NLRA).

In the underlying administrative decision, the NLRB held that the employer’s rule requiring a “positive working environment” had the effect of discouraging employees from engaging in concerted, protected activity under the NLRA, such as protesting the employer’s wages, hours and working conditions, or advocating for unionization.

The Fifth Circuit rejected the NLRB’s holding, finding instead that a reasonable employee would actually interpret the employer’s rule “to express a universally accepted guide for conduct in a responsible workplace.”  Rather than chill “vigorous proselytizing for or against a union,” the Fifth Circuit found that the employer’s rule simply encouraged professional manners, effective and courteous behavior, common sense, and the use of “basic people skills” in the workplace.  In its decision, the Fifth Circuit emphasized that the NLRB must give employer rules a “reasonable reading,” and should interpret them in light of their larger contexts.

Unfortunately, the NLRB does not consider itself bound to the decisions of the federal courts of appeals.  Thus, the NLRB is not likely to change its legal standard for employer handbook rules as a direct result of the Fifth Circuit’s decision in T-Mobile.  Consequently, when updating their employee handbooks, employers should remain cognizant of the NLRB’s doctrinaire rules regarding the legality of employer policies.

Atkinson, Andelson, Loya, Ruud & Romo provides employers with preventative advice and counsel on whether employee rules conform with the NLRA. We also represent employers in litigation before the NLRB.  We work with employers to craft workplace rules that prioritize business objections, but also minimize the potential for NLRB litigation.


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Thomas Lenz

Thomas Lenz


(626) 583-8600

Thomas Lenz is a partner handling all aspects of labor and employment law issues from the firm’s Pasadena and Cerritos offices. He heads the firm’s traditional labor and National Labor Relations Board practices. He works with employers in all major industries across California and the West. Mr. Lenz currently serves on the Executive Committee of the Labor and Employment Section for the State Bar of California. He also serves as a Lecturer in Law, teaching at the USC Gould School of Law.

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L. Brent Garrett

L. Brent Garrett


(562) 653-3200

Brent Garrett is a partner in the firm's Cerritos and Irvine offices and is a member of the firm’s Private Labor and Employment Group. He exclusively represents management in labor and employment matters. He is also a frequent contributor to the Firm’s Labor Relations Blog, providing analysis and commentary about new developments in the area of traditional labor law.

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