Regardless of side (union or company), one of the first things you learn in labor relations when evaluating issues is to ask questions. Among them are these: What does the policy say? What has been the past practice? Has the policy been consistently enforced in an even-handed, non-discriminatory way? While there are others, let’s stop there for a moment because if you can’t get past those, you might have a problem going any further.
Here’s the scene:
Your phone goes out. You use your non-union Verizon Wireless to call unionized AT&T (the carrier that handles the phone lines to your home). The person on the other end tells you, we’ll have someone out to you between the hours of XX:XX and XX:XX (maybe).
Imagine that you are a customer of AT&T Connecticut awaiting a service call. The doorbell rings. You open it, and the first thing you see is someone wearing a T-shirt bearing only “INMATE #” on its front. Would you hesitate to let that person in your home, particularly if you lived in a state where there had been a highly publicized and horrific home invasion and murder? What would you think about a company that permitted its technicians to wear such shirts when making home service calls? Even if you knew about an ongoing labor dispute at AT&T, why would your initial thought when opening the door to your home be “Oh, of course, this person is simply an AT&T technician exercising a right to express his view about that labor dispute”?
The above paragraph is from NLRB-member Brian Hayes’ dissent in a case published last week where the NLRB ruled that an employer (AT&T) acted unlawfully during a 2009 contract battle with the Communications Workers of America by demanding that union members remove T-shirts that had the words “Inmate” on the front and “Prisoner of AT$T” across the back.
If the “inmates” refused to remove the shirts, they were threatened with suspension and, on one occasion, more than 180 union members were suspended for one day for refusing to remove them. Those actions were illegal too, concluded two of the three union attorneys who control the NLRB, Chairman Wilma Leibman and Craig Becker.
While AT&T did have workplace rules that called for a professional appearance (including a rule that stated: “No clothing with printing and logos that are unprofessional or will jeopardize our Company’s reputation.”), the company’s enforcement of the rule was lax. The company had previously allowed union workers to wear more “offensive” t-shirts and, more importantly, AT&T failed to prove it met the “special circumstances” criteria to restrict union insignia established by the Board:
It is undisputed and well settled that employees have a protected right to make known their concerns and grievances pertaining to the employment relationship, which includes the wearing of union insignia while at work. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801–803 (1945); Komatsu America Corp., 342 NLRB 649, 650 (2004).
However, it is equally well settled that these Section 7 rights may give way when “special circumstances” override the employees’ Section 7 rights and legitimatize the regulation of such apparel. Komatsu America, supra; Bell-Atlantic-Pennsylvania, 339 NLRB 1084, 1086 (2003), enfd. 99 Fed Appx. 233 (DC Cir. 2004). The Board has found special circumstances justifying proscription of union insignia when their display may jeopardize employee safety, damage machinery or product, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established as part of its business through appearance rules of its employees, or when necessary to maintain decorum and discipline among employees. Komatsu America, supra; Nordstrom Inc., 264 NLRB 698, 700 (1982); Southwestern Bell, 200 NLRB 667, 669–670 (1972) (permitting employers to ban sweatshirt criticizing the employer in an obscene manner).
“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776