Eschewing legal niceties in favor of common sense, the U.S. Court of Appeals for the District of Columbia Circuit recently ruled that AT&T did not violate federal labor law when it prohibited its employees from wearing union-created t-shirts that said “Inmate #” on the front and “Prisoner of AT$T” on the back. The court refused to enforce a 2-1 decision of the National Labor Relations Board (NLRB) in which an NLRB majority ruled that AT&T had violated the National Labor Relations Act when it disciplined employees for wearing the t-shirts.
In 2009, the Communication Workers of America commissioned the “prison shirts” during its negotiations with the telecommunications company and asked employees to wear them in a show of solidarity. AT&T instructed only its client-facing employees to remove the “prison shirts” before beginning their shift. When employees refused, the company issued one-day suspensions to more than 180 employees. Under settled NLRA precedent, an employer may ban employees from wearing union paraphernalia only if justified by “special circumstances.” Here, the NLRB determined that AT&T failed to establish that “special circumstances” existed because the shirt could not reasonably be mistaken for actual prison jumpsuit.
The court disagreed with the NLRB’s conclusion, and ruled that AT&T acted lawfully in ordering its employees to remove the shirts and disciplining those who didn’t. Specifically, the court determined that “special circumstances” did exist in this case and justified the t-shirt ban because AT&T reasonably believed that the shirts could negatively affect its public image especially in the wake of a widely publicized home-invasion that had recently occurred in the area in which the union–represented employees worked. Importantly for employers, the court did not require proof of actual damage to AT&T’s image or customer relationships and determined that the company’s reasonably held belief was sufficient to meet the “special circumstances” standard.