With a subtle introductory rebuke, the Court of Appeals for the District of Columbia has reined in one of the National Labor Relations Board’s more outrageous decisions of the past few years. In Southern New England Telephone Company v. NLRB, No. 11-1099 (D.C. Cir., July 10, 2015), the court vacated the Board’s ruling that the employer violated the Act when it disciplined technicians for wearing T-shirts identifying themselves as “Inmates” and “Prisoners” on service calls to customer homes.
Common sense sometimes matters in resolving legal disputes.
So begins the Court’s order. Employers may be relieved that someone has finally said so to the Board. (Whether the Board adopts this simple principle going forward is another matter.)
During collective bargaining negotiations, the employees’ union distributed the T-shirts in question to its members. The shirts were white with black lettering, bearing the label “Inmate #” on front and “Prisoner of AT$T,” with vertical stripes above and below the lettering on the back. It said nothing about the union or the ongoing labor dispute. The employer suspended 183 employees who wore the shirt in public interactions on behalf of the company. The union filed a charge and both the Administrative Law Judge and Board majority held the employer’s actions violated the employees’ Section 7 rights.
The Court vacated the ruling based on the “special circumstances” exception to the general rule protecting employee rights to wear union apparel:
A company may lawfully prohibit its employees from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image.
One need not read too far into the Court’s introductory passage, however, to find sympathy with those who recognize the extent to which recent Board decisions have been handed down in a vacuum, divorced from business realities:
Common sense sometimes matters in resolving legal disputes. This case is a good example. AT&T Connecticut banned employees who interact with customers or work in public – including employees who enter customers’ homes – from wearing union shirts that said “Inmate” on the front and “Prisoner of AT$T” on the back. Seems reasonable. No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say “Inmate” and “Prisoner.”
Thus, the Court restored the “special circumstances” exception, which would have been all but eliminated if this case was left to represent its boundaries.