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 surprise 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 reaction.  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?

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.