Executive Summary: It was probably not that surprising that the U.S. Court of Appeals for the District of Columbia reversed the National Labor Relations Board's (NLRB) decision in Southern New England Telephone Company, 1356 NLRB No. 118 (2011). Of all the controversial decisions issued by the NLRB since President Obama was able to appoint a majority of the members on the five‑member Board, none may have been perceived as more hostile to the business community than this decision.
The facts are particularly simple and straightforward. Engaged in a bitter dispute over a contract extension with AT&T Connecticut, the Communications Workers of America (CWA) distributed to its membership t-shirts that said "Inmate" on the front with a black box beneath the lettering. The back of the shirt said, "Prisoner of AT&T" with several vertical stripes above and below the letters. With the union's encouragement, many employees wore the shirts to work. Of those who wore the shirts to work, AT&T gave a one-day suspension to those employees who regularly interacted with the public. In all, AT&T suspended 183 employees for one day.
The union filed an unfair labor practice charge, and the NLRB's General Counsel issued a complaint. An Administrative Law Judge of the NLRB concluded that AT&T had violated the National Labor Relations Act by suspending the employees. The NLRB then affirmed the ALJ over the dissent of then Member Hayes. The Board reasoned that the well‑established "special circumstances" giving employers the right to restrict employees from wearing buttons or insignias at work "when the company reasonably believes the message may harm its relationship with its customers and its public image" was not applicable because the company's customers could readily recognize that the AT&T technician "was an AT&T employee and not a convict." Dissenting Member Hayes concluded that it was apparent that having employees engaging the public as these employees did would reasonably serve to damage the company's reputation with the public.
The D. C. Circuit reversed. Writing for the court, Judge Kavanaugh opened the opinion by declaring, "Common sense sometimes matters in resolving legal disputes." Later, he adopted the logic of Board Member Hayes who declared in his dissent, "What would you think about a company that permitted its technicians to wear such shirts when making home service calls?" In concluding that the Board's decision fails to take into account the objectively based, reasonable and practical conclusion that the message on these shirts was offensive and bound to undermine the company's relationship with its customers, the court restated, as it had in a previous case in 2012, that "the Board's expertise is surely not at its peak in the realm of employer‑customer relations." Thus, the court concluded that the one-day suspensions were lawful because the special circumstance exception applied.
This decision is welcome news to the business community, particularly as it otherwise tries to digest the continuous barrage of decisions adverse to employers by this Labor Board.