Medco Health Solutions of Las Vegas, Inc. v. NLRB, 2012 U.S. App. LEXIS 25548, 1 (D.C. Cir. Dec. 14, 2012).
The U.S. Court of Appeals for the D.C. Circuit recently remanded a decision by the National Labor Relations Board (the “Board”) that found an employer had violated the National Labor Relations Act by ordering an employee to remove a T-shirt criticizing the employer’s nonmonetary recognition program. A “pharmacy benefits management company”, Medco Health Solutions of Las Vegas, Inc., (“Medco”) initiated an incentive program in the summer of 2009 aimed at enhancing employee performance. The “WOW program” created a weekly ceremony recognizing employee accomplishments.  Employees were not required to attend the event and could decline the award if they choose.  When clients or potential clients toured the facility a routine stop was the “Wall of WOW” that displayed award recipients along with an explanation as to why they received the award (about two tours take place per week).  The WOW program was also highlighted in a presentation that was shown to tour participants.
On February 12, 2010, Michael Shore, an employee and vice-chairman of the “pharmacy unit”, sported a T-shirt with the message “I don’t need a WOW to do my job.”  The front of the T-shirt displayed the union logo and the message was depicted on the back. A client was scheduled to tour the facility that day and Mr. Shore was asked to remove the shirt as it was deemed to be “insulting” to the company.  It was also alleged that the General Manager informed Mr. Shore that if he was unable to support the program then “there were plenty of jobs out there.” Mr. Shore subsequently removed the T-shirt.
The Union then filed a claim alleging violations of § 8(a)(1) of the National Labor Relations Act (the “Act”). Section 8(a)(1) states that it is unlawful for an employer to “interfere with, restrain, or coerce” the exercise of an employees’ rights under Section 7 of the Act granting “employees the right to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  In rebutting this claim Medco cited a provision of its dress code restricting “Phrases, Words, Statements, pictures, cartoons or drawings that are degrading, confrontational, slanderous, insulting or provocative.”  The Board upheld the charges against Medco and Medco subsequently filed a petition for review of the Board’s order.
In reviewing the Board’s decision the Court held “[e]ven under our highly deferential standard of review, requiring us to affirm the Board’s application of law to facts except where arbitrary or otherwise erroneous, the Board cannot be said to have offered a reasoned explanation for rejecting Medco’s argument . . .”  The Court found that the Board’s conclusion holding that Medco failed to demonstrate “that the slogan reasonably raised the genuine possibility of harm to the customer relationship”  seemed perplexing in light of Medco’s argument that the message portrayed on the T-shirt “would have undermine efforts to attract and retain customers” and the evidence offered in support of this position.  While acknowledging that the Board’s decisions are normally entitled to significant deference the Court found the Board’s lack of explanation or reasoning troubling and remanded the case for further review.
A special thanks to Cynthia Thomas, a law clerk at Cullen and Dykman LLP, for helping with this post.