NLRB rules T-shirts may criticize employer

From the Law Office of Beeson, Tayer & Bodine

Frustrated over the progress of contract negotiations with AT&T, the Communication Workers of America created “prisoner” T-shirts worn by members, including technicians who respond to customer service calls. The word “INMATE #” was written on the front of the T-shirts and on the back were vertical stripes surrounding the words “Prisoner of AT$T.”

AT&T banned employees who interacted with customers from wearing the prisoner T-shirt and suspended employees who refused to remove the T-shirt. The union filed an unfair labor practice charge and last month in AT&T Connecticut the NLRB ruled that the suspensions were an unfair labor practice.

Wearing union T-shirts on the job is generally protected under the National Labor Relations Act, but an employer may lawfully ban such shirts if the employer establishes “special circumstances” justifying the ban. In the past the Board has found special circumstances exist when the T-shirt’s content “unreasonably interferes with the employer’s public image.”

In AT&T Connecticut, the Board concluded that AT&T failed to justify the prohibition because the shirt was “not reasonably likely, under the circumstances, to cause fear or alarm among AT&T’s customers.”

The Board rejected AT&T’s argument that its previously established appearance standard justified the ban because the standard was vague and had not been uniformly enforced. The Board also concluded that AT&T’s professed concern with the effect of the Tshirt on its public image was not “reasonable,” rejecting AT&T’s argument that customers might believe that AT&T’s technicians were actually prisoners or on a work release program from prison. The Labor Board contrasted the AT&T shirts to cases where it had found the employer’s ban on union T-shirts was reasonable: a T-shirt with a picture of employees as squashed carcasses lying in a pool of blood, and a T-shirt worn by grocery employees which read “don’t cheat about the meat.”

Whether a union T-shirt is properly subject to an employer’s ban depends on the factual circumstances. Factors to be considered include whether the employer has a clear dress code that would prohibit the attire and whether it is strictly enforced, whether the message is vulgar or obscene, whether the message is clearly related to a labor dispute, and whether the employer can present evidence of actual harm to its image.

More Legal Advice from the Law Office of Beeson, Tayer & Bodine