NLRB fails to apply ‘common sense,’ gets smackdown in court

This new court ruling is a clear shot across the bow of the National Labor Relations Board (NLRB). 

As we’ve reported several times now, the NLRB has been on a scorched-earth crusade to find and stop any employer activity or policy it believes might stymie employees’ rights under Section 7 of the National Labor Relations Act.

Two of the biggest mandates of Section 7:

  • Employers cannot prohibit employees from wearing union clothes on the job, and
  • Employers cannot prohibit employees from participating in concerted activities meant to improve working conditions.

Recently, the Communication Workers of America, the union representing AT&T employees, filed charges with the NLRB claiming the communications giant violated Section 7 when it asked employees to remove union shirts before going face to face with employees.

The shirts were white with black lettering. The front of the shirt said “Inmate#” and the back of the shirt said “Prisoner of AT$T,” with several vertical stripes above and below the lettering.

The company allowed employees to wear the shirts in non-customer-facing positions, but instructed employees not to wear them when interacting with customers or working in public.

The company said the shirts could:

  • alarm or confuse customers
  • cause them to believe that AT&T employees were actually convicts, or
  • harm the company’s public image.

Employees suspended

When 183 customer-facing employees disobeyed the company’s orders to remove the shirts, they received a one-day suspension. The union then filed an unfair labor practice charge with the NLRB, claiming AT&T’s disciplinary actions violated Section 7.

AT&T argued its actions fell under the “special circumstances” exception to Section 7, which says a company can prohibit employees from displaying messages on the job that it reasonably believes may harm its relationship with customers or its public image.

An administrative law judge disagreed with AT&T, and ruled the company’s actions violated Section 7. The judge’s ruling was then upheld by the NLRB.

The judge said the company’s actions didn’t stand up to the “special circumstances” exception because the shirts “would not have been reasonably mistaken for prison garb” and that “the totality of the circumstances would make it clear” that the technician wearing the shirt was “not a convict.”

Therefore, according to the judge and the NLRB, the shirt was unlikely to damage AT&T’s relationship with customers or its public image.

AT&T responded to the rulings by taking its case before the U.S. Court of Appeals for the District of Columbia. Whose side was it on?

NLRB was ‘unreasonable’

The court sided with AT&T and said it was well within its rights to punish the employees who wore the union shirt. It vacated the judge’s and NLRB’s rulings.

But in doing so Judge Brett Kavanaugh, who wrote the court’s decision, had some pretty harsh things to say about the NLRB.

The first sentence Kavanaugh wrote: “Common sense sometimes matters in resolving legal disputes.”


Kavanaugh then went on to say that the NLRB applied Section 7’s “special circumstances” exception in an “unreasonable” way. He said the appropriate test of special circumstances “is not whether AT&T’s customers would confuse the “Inmate/Prisoner” shirt with actual prison garb, but whether AT&T could reasonably believe that message may harm its relationship with its customers or public image.”

And, according to Kavanaugh, “given the straightforward evidence that AT&T introduced of the shirt’s message and the circumstances under which customers interact with or can see employees wearing the shirt, the Board should have held that ‘special circumstances’ applied here.”

In the court’s conclusion, Kavanaugh fired one final shot at the NLRB, when he wrote: “As this Court observed in Medco Health (a past case), however, the Board’s ‘expertise is surely not at its peak in the realm of employer-customer relations.’”


Takeaway for employers: While the NLRB may isn’t shy about interpreting Section 7 very broadly, and can be a bit heavy-handed when ruling on Section 7 matters, it should provide relief to know that some courts clearly aren’t in the same corner as the board.

Cite: Southern New England Telephone Company (AT&T subsidiary) v. NLRB

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