Posted in: Employment law, In this week's e-newsletter, Latest News and Views, Legal and compliance, Unions
In a recent case, an employer attempted to discipline employees who wore mock prison outfits as part of a protest over employment practices. The employees took their case to the National Labor Relations Board and the courts.
In the case of AT&T Connecticut, technicians who conducted service calls at customers’ homes wore shirts resembling prison uniforms as a statement about a bargaining dispute between the union and the company. The text “INMATE #” appeared on the front of the shirts. One the back were bars and vertical stripes with the text “PRISONER OF AT&T.”
The employer brought disciplinary proceedings against the employees, arguing that the shirts frightened customers who thought they were dealing with actual prisoners.
An administrative law judge determined the employer violated the National Labor Relations Act by disciplining employees for wearing the shirts. The judge’s reasoning:
Employees have a protected right to make known their concerns and grievances pertaining to the employment relationship, which includes the wearing of union insignia while at work.
The judge further ruled that because there were no “special circumstances” to justify the employer’s refusal to allow the shirts, such as jeopardizing employee safety, damaging machinery or product, exacerbating employee tension, unreasonably interfering with an employer’s public image, or failing to maintain employee discipline and decorum.
By a 2-1 vote, the NLRB affirmed the judge’s decision while rejecting the company’s argument that allowing the shirts would cause fear among customers.
The NLRB’s dissenting member, Brian Hayes, argued in vain that the employer demonstrated a legitimate concern — customer fear — especially because of publicity regarding a 2007 home invasion and murder by paroled felons.
Note: Section 8(a)(1) of the National Labor Relations Act — which was cited in the case — covers and protects a broad range of employee protests, and applies to nonunion and union workplaces equally.