By John Doran
The NLRB analyzes employer policies to see if the policies “chill” employees’ rights to engage in concerted protected activity under the NLRA. The NLRB says it applies a “reasonable person” test, which asks “would a reasonable person construe the policy to restrict protected activity?” But the current NLRB actually applies what we call the “biggest idiot” test, which asks, “is there a way the biggest idiot on Earth could construe the policy to restrict protected activity?” Applying this biggest idiot test, the NLRB repeatedly has struck down innocuous employer policies. Last week, the Fifth Circuit Court of Appeals took aim at the NLRB’s test.
T-Mobile’s policies (1) encouraged “a positive work environment”; (2) prohibited “[a]rguing or fighting” and “failing to demonstrate appropriate teamwork”; (3) prohibited photography and recording at work; and (4) prohibited access to electronic info without approval. The NLRB found all four policies chilled protected activity. The Court reminded the NLRB of two critical foundations of the reasonable person test. First, the context of the workplace and the policy matters. Second, the NLRB cannot twist the test to ask what could, rather than what would, a reasonable person do. The Court found that a reasonable T-Mobile employee would read three of the policies in context and conclude they do not restrict protected activity. The Court sided with the NLRB on the photo/recording policy; that policy could reasonably be read to prohibit protected activity, e.g. photographing a work schedule.
All in all, it was a good day for employer policies. The Court reminded the NLRB it must apply the reasonable person test in a reasonable manner. On the positive work environment policy, the Court said the NLRB’s “position is not ‘reasonably defensible.’ It is not even close.” Will this stop the NLRB from taking indefensible positions going forward? No. Not even close. T-Mobile v. NLRB, No. 16-60284 (5th Cir. July 25, 2017).