Wednesday, July 15, 2015

NLRB Went Too Far In Allowing Employees to Wear Anti-Employer Message With Customers

The DC Circuit Court of Appeals recently inserted some common sense into the issue of protected speech and activity under the NLRB. Southern New England Telephone Company (AT&T Connecticut) had a policy requiring employees who are “publically visible” to dress in a professional manner and prohibiting employees from wearing clothing with printing or logos that are unprofessional or might jeopardize the Company’s reputation.  During a bitter contract negotiation with the Communication Workers, that union distributed tee shirts to its members. On the front of the tee shirt it said “Inmate #” with a black box beneath. On the back of the shirt it said “Prisoner of AT&T”. No mention of the union appeared on the tee shirt.  The company disciplined employees who wore the tee shirt when providing customer in-home services. The union filed an unfair labor practice claiming the company violated the employee’s right to engage in protected concerted activities. The National Labor Relations Board decided in favor of the  union and the employees.

The company didn’t take the finding laying down and appealed the NLRB’s decision. The DC Circuit Court of Appeals, in overturning the NLRB decision, began its opinion with the statement  “Common sense sometimes matters in resolving legal matters.”  While acknowledging that Section 7 of the National Labor Relations Act generally protects the right of workers to wear union clothing at work, the court applied a recognized special exception to that rule which allows employers to prohibit employees from displaying messages on the job which the employer reasonably believes may harm its relationship with its customers or harms its public image.

Messages on clothing do seem to be increasingly edgy and offensive to some. Employers have the right to regulate these messages when they are offensive , especially if the employee works with the public. When those messages, though, are about union membership, employers must ensure that their appearance policies do not inadvertently violate their employees’ rights to engage in union or concerted activity.  Even messages related to union activity can be prohibited, though, if it interferes with the employer’s relationship with its customers.