Appellate Court Reins in NLRB’s Dress Code Decision, Finds that AT&T Can Prohibit Employees from Wearing “Inmate” Shirt

In 2009, AT&T and the Communication Workers of America union were involved in contentious contract negotiations. In an effort to make the public aware of the dispute, AT&T employees began wearing a controversial T-shirt when visiting customer homes. The shirt said “Inmate” on the front, and the back of the shirt said “Prisoner of AT$T” with several vertical stripes and bars above and below the letters. The shirt did not say anything about the union or the ongoing labor dispute.

AT&T responded by suspending 183 employees who wore the shirt in public interactions, prompting the Union to file an unfair labor practice charge. The administrative law judge and National Labor Relations Board found that the suspensions violated the employees’ rights. The D.C. Court of Appeals vacated the Board’s ruling. According to the court, the Board did not take into account the practical consideration that the shirts contained an offensive message that was bound to undermine AT&T’s relationship with its customers. As the court succinctly stated, “common sense sometimes matters in resolving legal disputes.”

The court based its ruling on the “special circumstances” exception to the general rule that protects employees’ rights to wear union apparel. This exception provides that a company can lawfully prohibit its employees from displaying messages on the job that the company reasonably believes may harm its relationships with its customers or its public image. Although it took several years, this is certainly a win for employers.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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