Quirky Question # 177:

I work for a company called Star Registered, Inc. We employ sales employees who perform door-to-door direct sales. Customers can register stars to their names (we copyright the name with the telescopic coordinates and provide a personalized certificate). We have learned that some of our employees would like to form a labor union, and are now wearing t-shirts during their field sales activities that read on the front “Registered Offender” and on the back “I offended Registered by trying to unionize.” We can prohibit these offensive t-shirts, right?

Doug’s and Joel’s Analysis:

As crazy as it sounds, probably not. Especially under the current leadership of the National Labor Relations Board (NLRB), employer prohibitions against the wearing of union insignia are scrutinized heavily, even for employers that are not currently union workplaces.

First, let me address the fact that your workforce is not currently represented by a union. Many employers are under the misconception that since their employees are not currently unionized, labor law (namely, the National Labor Relations Act (NLRA)) does not apply to them. The reality is that the NLRA applies to virtually all private sector employers and employees, whether or not they are unionized. Coverage under the NLRA, specifically Sections 7 and 8 of the Act, means those employees are protected against adverse action for engaging in concerted protected activities to improve their working conditions, again, whether or not a union is involved. In addition, employers are prohibited from discouraging such activity, or discriminating against employees on the basis of their engaging in concerted protected activity.

One activity that has long been recognized by the NLRB and by courts as protected is the practice of employees, during work, to don union insignia, whether it be buttons, pins, hats, t-shirts, etc. Employers typically want to know how they can lawfully limit this activity, especially when employees are otherwise obliged to wear company uniforms. Employers can set limits, but only if they establish “special circumstances” justifying the limitations. See Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-03 (1945). The Board has found special circumstances exist most often when union apparel has the potential to exacerbate employee dissension or unreasonably interfere with the employer’s public image.

Turning, then, to the “Registered Offender” situation, it is likely a prohibition against wearing the t-shirts would not be lawful. For those who keep attuned to labor law developments, you likely recognize that this quirky question is playfully inspired by a recent decision by the Board siding with AT&T employees and their union regarding the wearing of controversial t-shirts. S. New England Tel. Co., 356 NLRB No. 118 (Mar. 24, 2011). AT&T and its employees were negotiating a new collective bargaining agreement when, as a public demonstration of union solidarity, employees began wearing t-shirts to work that had potentially troublesome language on both the front and back.  The front said “Inmate #” and the back said “Prisoner of AT$T.”

The employees were field technicians who assisted customers in their homes. What’s worse, at the time of the negotiations and t-shirt campaign, there was statewide pretrial publicity about a recent home invasion by two paroled felons that resulted in a family’s death. AT&T sought to prohibit its employees from wearing the t-shirts, believing that customers might think the employees were escaped prisoners. The union disagreed, and the case made its way to the Board for decision. Over a vigorous dissent by one Board member, a Board majority held special circumstances did not exist for AT&T to limit employees’ rights to wear the t-shirts. The t-shirts “would not have been reasonably mistaken for prison garb,” in part because the employees came to customer homes in response to customer appointments and were also wearing AT&T identification cards.

The Board’s decision is particularly troubling given its prior position in similar cases. For example, just seven years ago, the Board allowed a grocer employer to prohibit employees, who were not otherwise required to wear uniforms, from wearing t-shirts at work reading “Don’t Cheat About the Meat!” The Board recognized the phrase reasonably could create concern among customers about being cheated. Pathmark Store, 342 NLRB 378 (2004). In an older case, the Board allowed an employer to prohibit employees from wearing t-shirts that read “Ma Bell is a Cheap Mother.” The parties agreed the phrase had a obscene double meaning. Sw. Bell Tel. Co., 200 NLRB 667 (1972). As labor law followers know, though, such inconsistency by the Board – a highly political body – is not unexpected.

Thus, it looks like, at least under the Board as currently constituted, an employer could not prohibit its employees from wearing t-shirts that risk customers thinking employees are registered sex offenders, even when the employees are the public face of the company.

The game changes significantly, however, when the employer has a well-defined uniform requirement, applied without exception, and those uniforms are meant to project a particular public image. See W San Diego, 348 NLRB 372 (2006). In that situation, the employer usually can demonstrate that obtrusive or objectionable insignia detract from the employer’s image and may be prohibited. Stated differently, and to give comfort to employers with uniformed employees: if you as an employer require your employees who deal with the public to wear uniforms, you may prohibit those employees from donning t-shirts suggesting they are escaped convicts. Small solace, perhaps, but that’s the best we can do given the current Board’s makeup.

Decisions involving union buttons provide good examples that certain insignia worn by uniformed employees need not be permitted. Generally, the Board has permitted small, plain buttons to be worn by uniformed employees dealing with the public. See, e.g., Nordstrom, Inc., 264 NLRB 698 (1982) (permitting buttons that were “muted in tone, discrete in size, and free from provocative slogans or mottos”). Employers may, however, prohibit large, brilliantly colored buttons, or buttons that contain offensive content. The larger buttons have been held to potentially detract from an employer’s public image, invite unprofitable employee/customer discussions regarding the buttons’ meanings, or produce adverse reactions among customers who may have strong anti-union views. In one case, an employer was permitted to prohibit large buttons that detracted from the employees’ all-white uniforms. Evergreen Nursing Home & Rehab. Ctr., Inc., 198 NLRB 775 (1972). In another case, a retail department store was permitted to prohibit large, colorful buttons where the employees were asked to wear businesslike attire to model the employer’s merchandise. Davison-Paxon Co. v. NLRB, 462 F.2d 364 (5th Cir. 1972). And in Leiser Construction, LLC, 349 NLRB 413 (2007), the Board allowed an employer to prohibit an employee from displaying a sticker on his hardhat depicting someone urinating on a nonunion rat.

The ability to prohibit uniformed employees from wearing wild t-shirts or offensive buttons extends only so far as an employer’s application of its uniform policy is, well, uniform, and not enforced with particular fervor against unions. That is, if union insignia are prohibited, all kinds of pins, buttons, or clothing supporting any organization should be prohibited. Additionally, an existing policy requiring uniforms should not suddenly be enforced with vigor once union activity is detected. Without this consistency, an employer may be accused of discriminating against employees on the basis of their union support in violation of their rights under the NLRA. See, e.g., Cintas Corp., 353 NLRB 752 (2009); Airport 2000 Concessions, LLC, 346 NLRB 958 (2006).

In the end, unless the employer has a consistently enforced uniform policy, both union and non-union employees will have a broadly construed right to don pro-union apparel that pushes the limits of provocation, at least as long as the current Board is seated. The best employer practice to avoid these displays is to do your best to maintain positive employee relations such that employees have no incentive to publicly proclaim their pro-union sentiments. If potentially objectionable apparel do come to light, it’s advisable to involve your attorney, as the rules regarding union insignia and whether “special circumstances” exist to limit employees’ rights typically call for a careful consideration of conflicting Board precedent.