{"id":270,"date":"2015-07-16T01:21:17","date_gmt":"2015-07-15T19:51:17","guid":{"rendered":"http:\/\/sishrsolutions.com\/nlrb-fails-to-apply-common-sense-gets-smackdown-in-court\/"},"modified":"2015-07-16T01:21:17","modified_gmt":"2015-07-15T19:51:17","slug":"nlrb-fails-to-apply-common-sense-gets-smackdown-in-court","status":"publish","type":"post","link":"http:\/\/sishrsolutions.com\/index.php\/hrmorning\/nlrb-fails-to-apply-common-sense-gets-smackdown-in-court\/","title":{"rendered":"NLRB fails to apply \u2018common sense,\u2019 gets smackdown in court"},"content":{"rendered":"<div id=\"dslc-theme-content\"><div id=\"dslc-theme-content-inner\"><div><p>This new court ruling is a clear shot across the bow of the National Labor Relations Board (NLRB).&nbsp;<span><\/span><\/p>\n<p>As we&rsquo;ve reported <strong><a href=\"http:\/\/www.hrmorning.com\/this-time-the-nlrb-may-have-gone-too-far-protecting-workers-speech-rights\/\" target=\"_blank\">several times<\/a><\/strong> now, the NLRB has been on a <strong><a href=\"http:\/\/www.hrmorning.com\/nlrb-no-personal-use-email-policies\/\" target=\"_blank\">scorched-earth crusade<\/a><\/strong> to find and stop any employer activity or policy it believes might stymie employees&rsquo; rights under Section 7 of the National Labor Relations Act.<\/p>\n<p>Two of the biggest mandates of Section 7:<\/p>\n<ul><li>Employers cannot prohibit employees from wearing union clothes on the job, and<\/li>\n<li>Employers cannot prohibit employees from participating in concerted activities meant to improve working conditions.<\/li>\n<\/ul><p>Recently, the Communication Workers of America, the union representing AT&amp;T employees, filed charges with the NLRB claiming the communications giant violated Section 7 when it asked employees to remove union shirts&nbsp;before going face to face with employees.<\/p>\n<p>The shirts were white with black lettering. The front of the shirt said &ldquo;Inmate#&rdquo; and the back of the shirt said &ldquo;Prisoner of AT$T,&rdquo; with several vertical stripes above and below the lettering.<\/p>\n<p>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.<\/p>\n<p>The company said the shirts could:<\/p>\n<ul><li>alarm or confuse customers<\/li>\n<li>cause them to believe that AT&amp;T employees were actually convicts, or<\/li>\n<li>harm the company&rsquo;s public image.<\/li>\n<\/ul><h2>Employees suspended<\/h2>\n<p>When 183 customer-facing employees disobeyed the company&rsquo;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&amp;T&rsquo;s disciplinary actions violated Section 7.<\/p>\n<p>AT&amp;T argued its actions fell under the &ldquo;special circumstances&rdquo; 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.<\/p>\n<p>An administrative law judge disagreed with AT&amp;T, and ruled the company&rsquo;s actions violated Section 7. The judge&rsquo;s ruling was then upheld by the NLRB.<\/p>\n<p>The&nbsp;judge said the company&rsquo;s actions didn&rsquo;t stand up to the &ldquo;special circumstances&rdquo; exception because the shirts &ldquo;would not have been reasonably mistaken for prison garb&rdquo; and that &ldquo;the totality of the circumstances would make it clear&rdquo; that the technician wearing the shirt was &ldquo;not a convict.&rdquo;<\/p>\n<p>Therefore, according to the judge and the NLRB, the shirt was unlikely to damage AT&amp;T&rsquo;s relationship with customers or its public image.<\/p>\n<p>AT&amp;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?<\/p>\n<h2>NLRB was &lsquo;unreasonable&rsquo;<\/h2>\n<p>The court sided with AT&amp;T and said it was well within its rights to punish the employees who wore the union shirt. It vacated the judge&rsquo;s and NLRB&rsquo;s rulings.<\/p>\n<p>But in doing so&nbsp;Judge Brett Kavanaugh, who wrote the court&rsquo;s decision, had some pretty harsh things to say about the NLRB.<\/p>\n<p>The first sentence Kavanaugh wrote: &ldquo;Common sense sometimes matters in resolving legal disputes.&rdquo;<\/p>\n<p>Ouch!<\/p>\n<p>Kavanaugh then went on to say that the NLRB applied Section 7&rsquo;s &ldquo;special circumstances&rdquo; exception in an &ldquo;unreasonable&rdquo; way. He said the appropriate test of special circumstances &ldquo;is not whether AT&amp;T&rsquo;s customers would confuse the &ldquo;Inmate\/Prisoner&rdquo; shirt with actual prison garb, but whether AT&amp;T could reasonably believe that message may harm its relationship with its customers or public image.&rdquo;<\/p>\n<p>And, according to Kavanaugh, &ldquo;given the straightforward evidence that AT&amp;T introduced of the shirt&rsquo;s message and the circumstances under which customers interact with or can see employees wearing the shirt, the Board should have held that &lsquo;special circumstances&rsquo; applied here.&rdquo;<\/p>\n<p>In the court&rsquo;s conclusion, Kavanaugh fired one final shot at the NLRB, when he wrote: &ldquo;As this Court observed in <em>Medco Health (a past case)<\/em>, however, the Board&rsquo;s &lsquo;expertise is surely not at its peak in the realm of employer-customer relations.'&rdquo;<\/p>\n<p>Double-ouch.<\/p>\n<p>Takeaway for&nbsp;employers: While the NLRB may&nbsp;isn&rsquo;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&rsquo;t in the same corner as the board.<\/p>\n<p><strong><em>Cite: <a href=\"http:\/\/www.cadc.uscourts.gov\/internet\/opinions.nsf\/80AD773E2F0DF13385257E7E0052C14A\/%24file\/11-1099-1561845.pdf\" target=\"_blank\">Southern New England Telephone Company (AT&amp;T subsidiary) v. NLRB<\/a><\/em><\/strong><\/p>\n<span><\/span><\/div><p class=\"wpematico_credit\"><small>Powered by <a href=\"http:\/\/www.wpematico.com\" target=\"_blank\">WPeMatico<\/a><\/small><\/p><\/div><\/div>","protected":false},"excerpt":{"rendered":"<p>This new court ruling is a clear shot across the bow of the National Labor Relations Board (NLRB).&nbsp; As we&rsquo;ve reported several times now, the NLRB has been on a&nbsp;[&hellip;]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[19],"tags":[],"class_list":["post-270","post","type-post","status-publish","format-standard","hentry","category-hrmorning","clearfix"],"_links":{"self":[{"href":"http:\/\/sishrsolutions.com\/index.php\/wp-json\/wp\/v2\/posts\/270","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/sishrsolutions.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/sishrsolutions.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/sishrsolutions.com\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/sishrsolutions.com\/index.php\/wp-json\/wp\/v2\/comments?post=270"}],"version-history":[{"count":0,"href":"http:\/\/sishrsolutions.com\/index.php\/wp-json\/wp\/v2\/posts\/270\/revisions"}],"wp:attachment":[{"href":"http:\/\/sishrsolutions.com\/index.php\/wp-json\/wp\/v2\/media?parent=270"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/sishrsolutions.com\/index.php\/wp-json\/wp\/v2\/categories?post=270"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/sishrsolutions.com\/index.php\/wp-json\/wp\/v2\/tags?post=270"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}