NLRB Rules On T-Shirts and Baseball Hats

Remember when AT&T employees were allowed to wear t-shirts that read “Inmate #….” on the front while making house calls next door to a federal prison? Imagine the freight of people who opened their door thinking that an escaped convict was on their doorstep. Those t-shirts were protected activity because the workers who wore them were acting concertedly in response to the employer’s bargaining positions.

It should come as no surprise that employees are also allowed to wear t-shirts that say “Slave” on the front with a picture of a ball and chain on the back despite a company’s prohibition of racially discriminatory messages. According to the judge, “the fact that the rule prohibits racially and sexually discriminatory messages in no way changes the fact that it also prohibits derogatory messages about the company regardless of whether they are racially or sexually discriminatory.” So, I guess employees are allowed to make racially and sexually discriminatory comments so long as they are bad mouthing the company (or supervisors) when making those comments? Surely the judge did not just give a blanket OK for employees to violate discrimination policies, or did he?

As for baseball hats, a rule that employees can only wear baseball caps with the company’s logo violated the National Labor Relations Act. While some industries like healthcare and retail can prohibit union-related insignia on clothing, commercial printers – the company here – cannot exclude pro-union messages on clothing without special circumstances.

The company laughably tried in vain to create special circumstances. Hey, I’ve been in this position before – keeping a straight face when arguing on behalf of clients who clearly ran afoul of the law. It’s not fun, but it’s a part of the job.

First, the employer argued that the policy was for safety – to prevent hair from becoming entangled in machinery. But, there was no evidence that hats with union logos did a better job of preventing hair from being caught in machinery than hats with the company’s logo on them. Nor did the judge buy the argument that the policy was to prevent gang activity, since no gang activity ever existed. The judge also dismissed the argument that the logo ban was for employee-customer interaction purposes because employees did not interact with customers.

Now is a good time to review your corporate policies to ensure they cannot be interpreted by the pro-union NLRB as interfering with employees’ Section 7 rights. You may have to dig deep to think about twisted interpretations of Section 7 rights, but that is the world we live in now.  Seemingly benign dress code and safety related policies like the ones discussed here can cause a lot of trouble, inconvenience, and expense for unsuspecting companies.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can always call Matt at 614.843.3041 or email him at Austin@LaborEmploymentOSHA.com

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