Labor Relations Update

A federal judge in the District of Columbia handed employers a significant partial victory in the ongoing skirmish over the NLRB's attempts to require all employers under its jurisdiction to post a notice of employee rights.  As we have noted previously, the NLRB postponed the original November 14, 2011 compliance date, only to postpone it again after facing stiff resistance in the form of lawsuits challenging the new requirement.  A compliance date of April 30, 2012, was set in order to allow the courts to render decisions on the viability of the NLRB's regulations.  There are two significant pieces of litigation over the NLRB's rule.  The ruling discussed here concerns the challenge brought by the National Association of Manufacturers ("NAM").  The U.S. Chamber of Commerce also has a separate suit pending.

On March 2, 2012, Federal Judge Amy Berman Jackson handed down the split decision in the case of National Association of Manufacturers v. NLRB (Civ. Action No. 11-1629).pdf.  NAM, a trade association, challenged the NLRB's authority to require the rights poster, as well as the agency's contention that failure to post the notice could constitute an unfair labor practice. 

In her 46 page decision, Judge Jackson upheld the right of the NLRB to require the notice posting, but struck down the rules making it an unfair labor practice for an employer's failure to post the notice.

There are two parts to the NLRB's regulations on the rights poster.  Subpart A is the requirement that employers post the notice, and Subpart B concerns the agency's intended enforcement for employers that fail to post the notice.. 

Subpart A - Judge Upholds NLRB Requirement That Employers Post Rights Notice

NAM challenged the NLRB's authority to require employers to post the rights notice.  The theory for this contention is that in every piece of federal employment legislation where a notice of some sort is required to be posted (e.g., FMLA, FLSA, OSHA, etc.), the statutes all expressly require the responsible agencies to develop a notice for posting.  The NLRA is silent on this issue, and so the argument goes, Congress did not authorize the NLRB to make such a notice posting a mandatory requirement. 

Judge Jackson seemed to have little problem disposing of this issue in favor of the NLRB.  After a lengthy discussion of the NLRB's rulemaking authority and relevant caselaw, the Judge ruled:

Therefore, the Court cannot find that in enacting the NLRA, Congress unambiguously intended to preclude the Board from promulgating a rule that requires employers to post a notice informing employees of their rights under the Act.  Neither the text of the statute nor any binding precedent supports plaintiffs' narrow reading of a broad, express grant of rulemaknig authority.

So, absent a stay of this ruling pursuant to an appeal, the notice poster will be required as of April 30, 2012.

Subpart B - Enforcement Consequences For Failing To Post The Notice

NAM also challenged the NLRB's enforcement aspects of the rules.  

NLRB Cannot Make Failure To Post The Notice An Unfair Labor Practice

The NLRB rule states the consequences of failing to post the notice: "Failure to post the employee notice may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by NLRA Section 7. . ."  This is the most controversial and troublesome aspect of the rulemaking from a legal and practical perspective.  Yes, employers dislike having to post the notice at all, particularly in a labor relations climate that is more contentious than it has been in 20 years.  In the age of social media and instanteous information sharing, why must an employer be required to inform employees of the rights when such information is available from myriad sources?

What the NLRB attempts to do by these regulations, however, is to go much farther than mere publication of information.  By making the failure to post an actual unfair labor practice, the potential consequences for employers are extremely serious.  First, the NLRB's designation of a failure to post information that has never been required in the 77 years of the NLRA as interference, restraint or coercion of employee choice is quite a stretch.  The agency appears to be suggesting that an employer's failure to, in the future, give this information to employees interferes with free choice, an assertion that requires several leaps of logic.

Second, and most important, if the failure to post this notice is an unfair labor practice, then it could be grounds to overturn an otherwise properly held secret ballot election.  Yes, that's right.  As we have previously pointed out, the mere existence of an unlawful handbook policy could overturn a representation election, even where there is no evidence the policy played any part in an employee's choice on the secret ballot.  Indeed, the NLRB has ruled that the mere existence of the policy can overturn the election, even when employees are already represented by a uniion and seek to end such representation.  

Judge Jackson struck down this portion of the rule, stating "Plaintiffs maintain, and the Court agrees, that the agency lacked the authority to deem a failure to post to be an unfair labor practice under the Act."  In discussing the statutory framework and caselaw, the Judge concluded:

In other words, section [8(a)(1)](the provision of the NLRA making it an unfair labor practice to interfere with employee choice) prohibits employers from getting in the way - from doing something that impedes or hampers an employee's exercise of the rights guaranteed by [Section 7] of the statute.  It does not prohibit a mere failure to facilitate the exercise of those rights.

Judge Jackson went on to state that "nothing in this decision prevents the Board from finding that a failure to post constitutes an unfair labor practice...."  The Judge made clear, however, the Court's expectation of the agency if it was to assert that an emploiyer's failure to post is an unfair labor practice:

But the ruling does mean that the Board must make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee's exercise of his or her rights.  The Court is not making an absolute statement that inaction can never be interference; rather this memorandum opinion simply holds that the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice.

In other words, and it seems incredible we are having such a discussion, the NLRB actually must prove in an unfair labor hearing that the mere failure to provide information that is readily available from any number of sources, interfered with an employee's Section 7 rights.  This is exactly the kind of analysis that should take place when it is asserted an employer's handbook provision is unlawful, but doesn't; there should be a requirement that the existence of the so-called overbroad language actually interferes with an employee's rights. Unfortunately, what really happens in handbook cases is the NLRB merely says certain language in an of itself interferes with Section 7 rights without any proof that anyone read it, was aware of it or that the policy otherwise held any significance.

NLRB Cannot Toll Statute of Limitations By Rule

The Judge also ruled that the NLRB cannot use the failure to post the notice to toll the NLRA's six month statute of limitations.  Judge Jackson noted, "the NLRA does not authorize the Board to enact a rule which permits it to toll the statute of limitations in any future unfair labor practice action involving a job site where the notice was not posted."  In reaching this conclusion, the Judge noted there exists extensive legislative history on the six month statute of limitations contained in the NLRA, and that in certain circumstances it is appropriate to toll the statute.  Such tolling is not automatic and must be supported by proof.  The Judge's opinon notes, "The Final Rule strips away the case-specific nature of the equitable tolling doctrine by imposing it as the rule rather than the exception. The Court found it particularly troubling that the NLRB's conception for the rule stated that the employer must prove that the tolling did not apply:

This turns the burden of proof on its head.  The plaintiff [the NLRB in unfair labor practice cases] generally bears the burden of proving that equitable tolling should apply in the individual case, but the rule demands that the employer prove that across the board, unlimited extension should not apply. 

In other words, the NLRB cannot use an employer's failure to post a notice to automatically toll the statute of limitations for other unfair labor practices alleged at the workplace. 

Free Speech Callenge Rejected

NAM also challenged the rule on free speech grounds, that the NLRB was compelling employers to make certain speech.  The Court rejected this argument ruling that "the Board's notice posting requirement does not compel employers to say anything" and that the poster falls into the category of "government speech."

The Judge concluded Subpart A (the notice posting requirement) could be severed from Subpart B, meaning absent some court intervention, the posting requirement will go into effect as planned.

It seems likely both sides will appeal the ruling.   Also, it is highly likely another Court soon will rule on these issues in the U.S. Chamber's litigation. We will keep an eye out for further developments.

Since the NLRB’s Office of the General Counsel (“OGC”) issued the first “Facebook” complaint in American Medical Response of Connecticut, Inc. in October, 2010, dozens of unfair labor practice charges involving social media have been filed, the Acting General Counsel has identified social media cases as a priority, and gallons of electronic ink have been spilled by commentators and the OGC, itself, trying to help employers and their counsel make sense of it all.  The law is still developing – it has only been a few weeks since an ALJ rendered the first decision in a Facebook case – but thus far, social media cases have been evaluated and decided on the basis of existing legal principles.  There has been no indication that existing rules will be modified or adapted to meet the realities of the digital world, despite fundamental differences in the character of on-line communications versus more traditional forms of employee communication.  Though the rules may be familiar, applying them to social media cases is a challenge.

The majority of cases generally fall into two categories, with some overlap: (1) those involving discipline based upon employee conduct on social media sites and (2) those challenging employer social media policies as overbroad and unlawful restrictions on employees’ rights under the NLRA.  With the stated intention of offering assistance to labor law practitioners and HR professionals, NLRB Acting General Counsel Lafe Solomon issued a report this past August explaining the rationale underlying the OGC’s decisions in a sampling of the key social media cases within the last year (OM 11-74 Report of the Acting General Counsel Concerning Social Media Cases). 

When is employee conduct on social media sites protected by the NLRA?

The cases to date make clear that existing standards defining protected concerted activity will be used to evaluate employees’ social media activities.  Non-union employers must not lose sight of the fact that their employees are also protected by the NLRA and these standards apply whether or not employees are represented by a union. 

• An employee’s activity is concerted when the employee: 
  • acts with or on the authority of other employees;   
  • seeks to initiate or to induce or to prepare for group action;
  • brings “truly group complaints” to management’s attention. 
• Discussions between or among employees must be “a logical outgrowth” of group action or collective goals. 
• An employee’s activity is not concerted when the employee acts alone or on behalf of him or herself, regardless of whether other employees may benefit and regardless of whether the object of the employee’s action is something about which other employees would be concerned.   
• Disparaging comments about an employer, including supervisors, are generally protected, but they may lose the Act’s protection when they: 
  • are unrelated to a dispute over working conditions; 
  • focus only on the employer’s products or business policies, particularly if the criticism comes at a “critical time” for the employer 
  • are reckless or maliciously untrue; 
  • are appeals to racial, ethnic or similar prejudices; o 
  • are insulting or obscene personal attacks that cross an ill-defined “I know it when I see it” line of propriety.

The difficulty of applying these principles to social media cases is aptly illustrated by the first “Facebook” case to be decided by an ALJ, Hispanics United of Buffalo, Inc., which was decided on September 2, 2011.  In that case, the ALJ found that a nonprofit, non-union employer violated the NLRA by terminating five employees who had engaged in protected concerted activity.  Specifically, they had engaged in a Facebook discussion concerning another employee’s criticism of their job performance that included vulgar language.  In so ruling, the ALJ recognized that individual action can be protected as concerted action as long as it is engaged in with the object of initiating or inducing group action.  The facts of the case, however, indicate that there was no evidence of the terminated employees’ intent to take group action beyond their Facebook postings.  The ALJ nonetheless concluded that the terminated employees were “taking a first step towards taking group action,” and by terminating them, the employer prevented them from taking any further group action.  

Distinguishing Hispanics United from cases in which no concerted activity was found -- e.g., where an individual employee posted a complaint that received supportive messages from co-workers but did not otherwise manifest any intent to induce group action -- can be challenging.  For example, in another case discussed in the Acting GC’s report, Wal-Mart, No. 17-CA-25030, the OGC declined to issue a complaint where an employee was disciplined for posting vulgar comments to his Facebook page that were critical of local store management.  Although other employees submitted supportive comments, the OGC found that the postings were an expression of an individual gripe that was not protected concerted activity.  In so finding, the OGC noted that the Facebook posts contained no indication of the employee’s intent to initiate or induce group action – just like the Facebook posts in Hispanics United.  

Though the Wal-Mart case and several others described in the Acting GC’s Report manifest the OGC’s recognition that there are limits to the scope of protected concerted activity in the social media context, the conclusion by the ALJ in Hispanics United that the terminated employees’ Facebook posts were protected because they were “taking a first step towards taking group action” presents employers with the difficult task of deciding when to infer an individual employee’s intention to take group action and when to treat a post as an individual complaint.  In this regard, the fact that all five employees who participated in the Facebook exchange were terminated was significant.  The ALJ specifically found that the employer’s termination of all five employees for their Facebook postings established that the employer viewed the five as a group and that they were engaged in concerted activity.  

Though these cases are highly fact-specific, and though application of the operative legal principles to the facts of each case can be difficult, a few guidelines do emerge from the body of cases reported thus far: 

• Employee conduct on social media sites that expressly engages co-workers or seeks to promote group action with respect to an issue related to terms and conditions of employment will be protected.
• An individual employee’s social media post will likely be protected if it suggests implicitly or explicitly an intention to promote group action or support, particularly if it solicits co-worker comments.
• An individual employee’s social media post that does not expressly solicit co-worker input but nonetheless generates co-worker comments that grow into a substantive conversation concerning terms and conditions of employment may well be protected.
• An individual employee’s social media post that is neither directed to co-workers nor engages co-workers, or a post that does not address issues of mutual concern to other employees will likely be treated as an unprotected individual gripe or complaint.
• Disparaging comments concerning the employer and/or supervisors will be protected, even if they include vulgar or rude language, unless they are so outrageous or offensive as to lose the protection of the NLRA.
• Discriminatory comments or posts that advocate unlawful action will not be protected.

In applying these guidelines, employers are well advised to consider the NLRB’s renewed emphasis on protecting employee rights to engage in protected concerted activity, as well as its general interest in expanding employee access to digital media and facilitating employee communication.  They should also be mindful of the Acting General Counsel’s aggressive posture in these cases.  Accordingly, before implementing disciplinary action, employers should consult with counsel and carefully weigh the risks of running afoul of the emerging law in this area.

What is the lawful scope of a social media policy?

As in the employee discipline cases, cases involving challenges to employers’ social media policies as overbroad and unlawful restrictions on employee rights under the NLRA have also, thus far, applied well-established legal principles without modification or adaptation to any particular attributes of social media communications: 

• An employer violates NLRA Section 8(a)(1) through the maintenance of a policy that “reasonably tends to chill” employees in the exercise of their rights under Section 7 of the Act to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 
• If the policy does not explicitly restrict Section 7 activities, it is unlawful only upon a showing that (1) employees would reasonably construe the language to prohibit protected activity, (2) the policy was promulgated in response to union activity, or (3) the policy has been applied to restrict the exercise of Section 7 rights.

As in the social media disciplinary cases, the cases involving challenges to social media policies are highly fact-specific.  Examples of unlawful policies addressed in the Acting GC’s Report include:

• Prohibition against posting pictures that depict the company was unlawfully overbroad because it would prohibit employees from engaging in a protected activity like carrying a picket sign or wearing a t-shirt portraying the company’s logo in connection with a labor dispute.
• Prohibition in hospital social media policy against communications that compromise privacy, embarrass or defame the hospital or its staff, or damage the goodwill of the hospital was unlawfully overbroad where the policy did not define what the hospital considered to be private or confidential, nor did it contain a disclaimer informing employees that it did not apply to protected Section 7 activity.
• Prohibition against posting anything that would disclose “inappropriate or sensitive” information about the employer was unlawful in the absence of any definition or guidance as to the nature of the prohibited subjects.
• Prohibition against using the company name, address or other information in employees’ personal profiles was unlawfully overbroad because it interfered with employees’ ability to find and communicate with their coworkers on-line and was not narrowly drawn to protect a legitimate interest of the employer.
• Prohibition against revealing personal information regarding co-workers without their consent was unlawfully overbroad and could be reasonably interpreted as restraining employees’ Section 7 right to discuss wages and other terms and conditions of employment.
• Prohibition against “disrespectful conduct” or “rude or discourteous behavior,” was unlawfully overbroad where the policy did not contain a disclaimer informing employees that it did not apply to protected Section 7 activity.

Two unifying themes emerge from the unlawful policies summarized in the Acting GC’s Report:

1. They were not narrowly tailored to serving a well-defined, legitimate business need; and
2. Their broadly worded prohibitions could reasonably be read to restrict employees’ exercise of protected Section 7 rights and they did not disclaim any such unlawful intention. 

Indeed, one of the lawful policies addressed in the Acting GC’s Report aptly illustrated these points.  That policy instructed employees to respond to all media inquiries by (i) replying that that they were not authorized to comment for the employer or did not have the information being sought, (ii) taking the name and number of the media organization, and (iii) relaying the information to the employer’s public affairs office.  The OGC concluded that this policy was lawful because it served the employer’s legitimate business interest of communicating to the media with one voice, and it was not so broadly worded as to lead employees reasonably to think they were prohibited from exercising Section 7 rights to talk to the media on their own behalf about their working conditions.

Employers are well-advised to implement and enforce social media policies.  Whether the workplace is unionized or not, however, such policies must not be so broadly worded as to explicitly or implicitly restrict employees’ right to engage in protected concerted activities or to discourage (or “chill”) employees’ exercise of their rights.  Policies should clearly articulate the legitimate business interests sought to be protected or achieved through the policy, and the restrictions should be narrowly tailored to serve those legitimate interests.  Though disclaimers are not required, and though they do not, in and of themselves, provide an absolute defense, the inclusion of express language disclaiming any intention to restrict employee rights under the NLRA can be helpful to defeat claims that employees may reasonably interpret the policy to restrict their rights.

This is a rapidly evolving area, and with so many cases in the pipeline, the law is sure to continue to develop.  We will keep you posted on those developments.

The mid-point of Summer has passed.  Although the NLRB has not issued a major decision in several weeks, the agency has not been slacking off this Summer.  In a typical year, August and September are the busiest months for the NLRB, because the federal government's fiscal year ends September 30.  During the final weeks of the fiscal year the NLRB attempts to push out as many decisions as it can.  The agency is largely statistically driven, and so more decisions means a greater justification for a renewed or increased budget.

This, of course, is not a typical year.  The current NLRB has a very active, if not activist, agenda.  There not only are a number of potentially far-reaching cases it has yet to decide, but the agency also has proposed rulemaking to drastically upend the current manner in which representation elections are held.  Add into the mix Chairman Liebman's appointment is set to expire on August 27, one can expect a storm of activity from the NLRB in the coming weeks.  Here is a snapshot of the important cases and the rulemaking initiatives currently pending: 

• Speciality Healthcare (NLRB Case No. 15-RC-8773).  In this case, the NLRB wondered aloud whether it could set a presumptive rule for the appropriateness of bargaining units in certain segments of the healthcare industry. The problem, of course, is that anyone who has worked in business environment knows that there is no uniformity to how an employer structures its business, even within industries.  A decision holding otherwise will make it much easier for unions to organize because it will remove Section 9(b) of the Act's requirement that the NLRB actually decide, on a case by case basis, the appropriateness of a unit.  We posted in detail on this important issue in March after we filed a brief on behalf of Retail Industry Leaders Association. 
•  Lamons Gasket Company (NLRB Case No. 16-RD-1597).  In this case the NLRB may revisit (read- overturn) the exception to the voluntary recognition bar set forth in Dana Corp Metaldyne, 351 NLRB 434 (2007).pdf.  In Dana, the NLRB set a rule where employees may challenge voluntary recognition of a union by their employer by filing a petition for an election within a certain period of time.  With all the discussion about the NLRB's processes, the NLRB in Dana pointed out something that sometimes gets lost in the debate.  "Finally, although critics of the Board election process claim that an employer opposed to union representation has a one-sided advantage to exert pressure on its employees throughout each workday of an election campaign, the fact remains that the Board will invalidate elections affected by improper electioneering tactics, and an employee's expression of choice is exercised by casting a ballot in private.  There are no comparable safeguards in the voluntary recognition process."  Id. at 439. 
• Hawaii Tribune Herald (NLRB Case No. 37-CA-7043 et al.).  This is another case where the NLRB invited interested parties to file briefs about whether it should it should change its 32 year rule that witness statements made to the emloyer need not be turned over to the union prior to an arbitration hearing. As noted in the previous post on this issue, the NLRB's rule is designed to protect the witnesses from intimidation.  A reversal of this decades old rule will change the way arbitration cases are handled.
• D.R. Horton (NLRB Case No. 12-CA-25764).  The NLRB invited briefs on the issue of whether an employer's requirement that each employee sign an arbitration agreement which expressly waives the right to class action relief violated Section 8(a)(1). We previously posted on this important issue. The issue in this case really comes down to whether "all" group activity, no matter what the nature, is also "protected, concerted" activity under Section 7 of the NLRA.  We filed a Brief for the Retail Industry Leaders Association -- Amicus Curiae.pdf on this issue.  While one can certainly see the similarities between Section 7 activity and employees who wish to bring a class action against their employer, there are also important distinguishing factors.  The entire NLRA concept of group activity is designed to have employees acting in concert toward a common goal; there is interaction and cohesiveness. Under the NLRA, the group must achieve majority status before it can act on behalf of the whole.   In many class actions, the opposite is often true.  The vast majority of employees are not even aware the lawsuit is pending.  In many cases the "class representatives," often a tiny fraction of an overall workforce, can settle the entire matter (for their own benefit, of course), and then notify the rest of the employees what happened.  There are great differences between the two types of activity.
• Rulemaking. Of course, the NLRB has moved forward with its efforts to force "quickie elections" on employers through rulemaking.  The NLRB held hearings on the matter on July 18-19.  The changes, if promulgated, would reduce the amount of time between the filing of a petition and the election from about 42 days now to far fewer days.  The need for such drastic change is mystifying.  The NLRB itself in its own  Performance and Accountability Report FY 2010.pdf stated that it met or exceeded its strategic goals for processing representation petitions, which raises serious questions of the necessity for such drastic changes.  The U.S. Chamber of Commerce has drafted a very good Fact Sheet On Quickie Elections.pdf detailing the proposed rules, and how they would change the current process.  Comments on the rulemaking are due August 22, 2011, so employers who wish to get involved should draft comments to the NLRB (there is a draft letter in the U.S. Chamber's materials).

As one can see, a storm of NLRB activity is headed this way.  We will certainly be monitoring it as its clouds continue to gather.  Employers need to prepare for the possibility that many areas of NLRB law and process, some decades old, will be changed in the coming weeks.  We will, of course keep you posted on all developments as they occur.

In its latest effort to address social media in the workplace, the National Labor Relations Board announced in a May 18 press release that it had filed a complaint against a New York non-profit organization alleging that it unlawfully terminated five employees who complained about working conditions on Facebook.

According to the complaint filed by Buffalo Regional Director Rhonda Ley, Hispanics United of Buffalo’s termination of five employees who criticized workload and staffing conditions on Facebook constituted an unfair labor practice. 

The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients.  The initial post generated responses from four other employees who defended their job performance and criticized working conditions, including workload and staffing issues. After learning of the posts, Hispanics United discharged all five employees, claiming that their comments constituted harassment of the employee originally mentioned in the Facebook post.

The complaint alleges that the Facebook discussion was protected concerted activity under Section 7 of the National Labor Relations Act because it involved a conversation among fellow employees about the terms and conditions of their employment, including their job performance and staffing levels.  A hearing is scheduled for June 22, 2011.

In its recent settlement of a similar case involving an employer in Connecticut, American Medical Response (AMR), the NLRB warned employers against maintaining policies that restrict the right of workers to discuss jobs conditions with coworkers using social media.  Unlike the AMR case, the NLRB complaint against Hispanics United does not allege that the employer maintained an unlawful policy; the complaint focuses exclusively on the employer’s termination of the five employees who participated in the Facebook conversation.  Moreover, whereas the AMR case involved unionized employees, the five employees terminated by Hispanics United were non-union employees – illustrating the fact that Section 7 rights extend to all employees, whether unionized or not.

The Hispanics United complaint also follows closely on the heels of a highly publicized case involving Twitter, in which the NLRB declined to issue a complaint against the Arizona Daily Star.  Based on the Hispanics United complaint and the Board’s press release announcing issuance of the complaint, however, it appears that the factors that led the Board to decline to issue a complaint in the Arizona Daily Star case -- which involved a single employee's inappropriate and offensive Twitter posts on subjects unrelated to terms and conditions of employment – are not present in the Hispanics United case.

The Hispanics United complaint further reinforces the Board’s focus on social media issues in the workplace.  Indeed, Acting General Counsel, Lafe Solomon, has indicated that there were social media cases pending in every Region.  Further, citing significant policy issues and lack of precedent, an April 12, 2011 memorandum issued by the Acting General Counsel directed Regional Directors to submit all cases involving “employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter” to the Division of Advice before any taking any action.

Given the Board’s focus on social media issues and the apparent volume of pending cases implicating these issues, we expect this to be a rapidly developing area to which employers should pay close attention.  We will continue to monitor the Board’s views on social media and provide updates on significant developments.  In the meantime, employers should review existing policies and consider the Board’s emerging position on this issue when disciplining employees for behavior that may be considered to fall within the expanding scope of protected concerted activity.

These days, one can start almost any conversation about an NLRB decision with the words, "Under vigorous dissent by Member Hayes. . ."  The NLRB's recent decision in AT&T Connecticut, 356 NLRB No. 118 (March 24, 2011).pdf is no exception.  In AT&T Connecticut the NLRB ruled that the employer violated the NLRA when it suspended some 183 employee technicians who wore "Prisoner" shirts to the homes of customers to publicize a labor dispute.  The white t-shirts worn by the technicians said "INMATE #" on the front.  On the back with two sets of black vertical stripes appeared the words "Prisoner of AT$T" with the dollar sign meant to protest the alleged money-grubbing ways of the employer.  The employer did not take kindly to the actions and prohibited the wearing of the prisoner shirts.

The law governing this type of issue, while seemingly straightforward, can be extremely difficult to apply. Generally, the legal standard arose out of employers prohibiting employees from wearing "union insignia" at the workplace (union buttons, t-shirts, hats, etc.), and the NLRB has ruled that an employer may not ban such insignia absent "special circumstances." The term "special circumstances" has come to mean, generally, where the apparel can cause internal dissension or "unreasonably" interferes with the employer's public image.  Over the years the meaning "union insignia" has been expanded to include other statements about protest activity which, like this case, do not involve any actual union insignia; rather, the cases concern statements and conduct which don't mention a union, but do attack the company. The standard also has been applied to statements made to the public or customers.

There is no suprise that the NLRB majority of Chairman Liebman and Member Becker found that no special circumstances existed to justify prohibition of the prison inmate shirt.  The NLRB majority reasoned that it was unlikely the shirt would cause "fear" in customers because it could not be "reasonably mistaken for prison garb."  The majority also believed that no special circumstances existed to ban the shirts because the customers initiated the service calls, received confirmatory calls from the employees, and the employees wore employer ID badges and drove employer trucks.  

Member Hayes disagreed, pointing out that the front of the shirts themselves contained only "INMATE #" and there was no identification of a labor dispute or even the employer's name.  Mr. Hayes immediately put the focus on what the customer saw upon opening the front door

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 live in a state where there had been a highly publicized and horrific home invasion and murder?

One can debate the legal points forever.  It is always amazing to learn that conduct like this, which is designed to harm a company by sullying its reputation in the community, can somehow be considered "protected" under the law.  Except in rare situations (that is, special circumstances) such conduct has been endorsed by the NLRB.  As a result, employers now face inflatable rats, banners that target customers, and silly t-shirts with messages likening employment to imprisonment. 

These sorts of tactics are designed to provoke a reaction, but not necessarily from the public.  It is certainly understandable why an employer would want to prohibit this kind of conduct.  Employees visit valuable customers while wearing a shirt identifying them as a prisoner.  The shirt is designed to provoke discussion of the labor dispute, a conversation which necessarily must take place during working hours, so the employer is paying for the protest.  Management would be concerned that the company could lose business when customers get drawn into labor disputes.  It is all very grating.

This was, of course, the purpose:  annoy management.  Provoke a reaciton.  The union wanted to do what it could to get some leverage in the underlying labor dispute.  The unfair labor practice charges distract the employer during the dispute, and in cases like this, could cost a fair amount of money to compensate the employees found to have been unlawfully suspended.

The decision illustrates the peril employers face when trying to protect the business during a labor dispute.  In order to prohibit the employees from wearing apparel such as the prison garb here, the statements must be of a character that, standing alone, would be considered objectionable.  So, when an employer prohibited employees from wearing t-shirts that said, "Ma Bell is a cheap mother," the NLRB found no violation.  Similarly, when the employer prohibited employees from stating "Don't cheat the meat" in a dispute involving a grocery store, the NLRB found that the statements raised the issue (wrongly) that the employer was selling tainted meat. 

In this case, the statements are not so clearcut.  The assertions made by both NLRB majority and Member Hayes about whether customers feared employees wearing the t-shirt were speculative.  There was no evidence in the record to support either assertion.  The conclusion in this case probably would have been different had a customer complained.  The truth is, however, the public rarely cares about such "publicity." 

Consider this:  if such tactics fail to provoke public reaction from the public and from  management, would labor abandon them?