NLRB Reversed for Ignoring “Common Sense”

Seyfarth Shaw LLP

In Southern New England Telephone Company v. NLRB, the D.C. Circuit reversed an NLRB decision finding it unlawful to prohibit public-facing employees (including in-home service technicians) from wearing a particular t-shirt to work.  The t-shirt, promoted by the union representing the employees in question, said “Inmate” on the front and “Prisoner of AT$T” on the back.  We quote from the beginning of Judge Kavanaugh’s opinion:

Common sense sometimes matters in resolving legal disputes.  This case is a good example. . . .  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.”

While recognizing that the law “protects the right of employees to wear union apparel at work,” the court also observed a longstanding exception to that rule.  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.”  Even though the court is generally deferential to the NLRB in these matters, the court found the NLRB’s decision to be unreasonable and held that the employer was well within its rights to ban the wearing of the t-shirt by employees who interact with the public.

Key point for employers:  Don’t focus too much on the outcome of this particular case.  Pay more attention to the general rule (and also to the fact that the employer here had to take its case all the way to the court of appeals to prevail).  Many employers reasonably believe they can ban the wearing of union apparel (shirts, buttons, hats, stickers) at work because it is inconsistent with the employer’s general dress code.  Alas, this is often not the case.  The question of whether a particular employee has a right to wear a particular piece of union paraphernalia is sometimes a difficult one, and there are numerous NLRB cases addressing the different “special circumstances” when an employer may prohibit such items (the Southern New England case addresses only one of them).  Before rushing to tell your employees to remove a union hat, button, shirt, etc., on pain of discipline, it is often a sensible use of your time to pause and consult your labor relations counsel about the risks and ramifications of doing so.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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