Does the right to wear union apparel at work mean that employees facing the public can sport shirts printed with words like “Prisoner” and “Inmate” to nudge an employer in contract talks? The NLRB found that publicly visible technicians of AT&T Connecticut had such a right, but the D.C. Circuit disagreed.

Much like politicians, unions often use publicity stunts to draw attention to their goals, and it’s a longstanding principle of federal labor law that employees have a right to wear union apparel. This recent decision shows how the D.C. Circuit understands an employer’s reasonable reputational concerns to limit that right. S. New England Tel. Co. v. NLRB, 203 LRRM 3457, 2015 BL 220995 (D.C. Cir. 2015).

Union Weighs In

The dispute arose during a campaign by the Communication Workers of America to pressure AT&T during negotiations for a new labor contract.

The union distributed white shirts with black lettering that read “Inmate #” on the front, with a black box below the text. The back of the shirts read “Prisoner of AT$T,” with several vertical stripes above and below the text. The shirts didn’t make any direct references to the union or its ongoing dispute with AT&T.

Match Finds Referee

On two specific days, hundreds of members wore the shirts to work at the union’s suggestion, but supervisors instructed all employees who interacted with customers or worked in public to take them off. These employees included both technicians who install and repair lines at homes and businesses and technicians who work on construction projects.

In all, 183 employees who didn’t take off their shirts got one-day suspensions.

The union filed an unfair-labor-practice charge with the NLRB, arguing that the suspensions unlawfully interfered with employees’ rights to engage in concerted activity.

Employer Comes Out Swinging

In response, the employer invoked the “special circumstances” doctrine from the U.S. Supreme Court’s 1945 decision in Republic Aviation v. NLRB. Under that doctrine, a company may lawfully ban union messages on publicly visible apparel at work when it reasonably believes that the messages may harm its relationship with customers or its public image.

In support of AT&T’s argument, the company’s officers testified that the shirts could harm AT&T’s public image generally, alarm or confuse customers or cause customers to believe that its employees actually were convicts.

The NLRB found that the company’s ban on the shirts was unlawful anyway. The Board reasoned that the shirts “would not have been reasonably mistaken for prison garb” and that “the totality of the circumstances would make it clear” that a technician wearing the shirt was an AT&T employee.

But was that enough?

Court Takes Off the Gloves

The employer petitioned for review of the Board’s order, and the D.C. Circuit vacated it.

Quoting circuit precedent, the court said the Board’s “expertise is surely not at its peak in the realm of employer-customer relations.”

The court found that the Board applied the “special circumstances” test unreasonably because it didn’t ask the right question.

The court said the right question was not whether AT&T’s customers would confuse the shirt with real prison garb. That was only part of the picture. Instead, the Board should have asked whether AT&T could reasonably believe that the shirts’ message may harm its relationship with customers or its public image.

To settle that issue, it was enough for the court to ask rhetorically what Member Hayes before it said in his dissent to the Board’s order: “What would you think about a company that permitted its technicians to wear such shirts when making home service calls?”

“Common sense,” as the court put it, “sometimes matters in resolving legal disputes.” Time will tell if the same is true of elections.

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