For Second Time in Two Weeks, Federal Court Strikes Down NLRB Scrutiny of Workplace Harmony Rules

July 28, 2017

Even before a Republican majority on the NLRB has been installed, federal courts are beginning to bring balance back to the law, as the 5th Circuit struck down a controversial 2016 Board decision that a handbook violated the National Labor Relations Act by asking employees to maintain a "positive work environment."  Specifically, the court found the Board's decision to be "unreasonable," stating: "The reasonable T-Mobile employee would understand the rule to express a universally accepted guide for conduct in a responsible workplace."  Among other handbook items in question that the court approved were prohibitions against:

• "[A]rguing or fighting;"
• "Failing to treat others with respect;"
• "Failing to demonstrate appropriate teamwork;" and
• "Access to electronic information by non-approved individuals."

The decision comes just two weeks after the 8th Circuit overturned a Board decision that a leaflet suggesting a link between a restaurant's sick leave policies and customer safety was legally protected, with eight appeals court judges agreeing that the NLRB's decision "fundamentally misconstrued" the law.