An employer lawfully prohibited employees who interact with customers from wearing t-shirts printed with the words “Inmate” and “Prisoner” and containing black and white horizontal stripes, a federal appeals court has held, rejecting a 2-1 decision of the National Labor Relations Board. In Southern New England Telephone Company v. National Labor Relations Board, No. 11-1099 (D.C. Cir. 2015), the court held that “it was reasonable for AT&T to believe that the ‘Inmate/Prisoner’ shirts may harm AT&T’s relations with its customers or its public image,” thereby permitting the company to restrict the employees’ right to don union-messaged apparel.

The Communications Workers of America and the company were locked in difficult contract negotiations. The union gave workers, including those who enter customers’ homes, the disputed t-shirts to wear as a means to apply pressure on the company. The court recognized employees have a right under Section 7 of the National Labor Relations Act to wear clothing, buttons and other items communicating union support. However, quoting the Board’s decision in Nordstrom, Inc., 264 NLRB 698, 700 (1982), the Court observed that this right is qualified by a long-recognized “special circumstances” exception which is intended “to balance the potentially conflicting interest of an employee’s right to display union insignia and an employer’s right to limit or prohibit such display.” These “special circumstances,” it said, includes “protecting the employer’s product” and “maintaining a certain employee image.”

In affirming its administrative law judge’s decision, the NLRB had held that the t-shirt “would not have been reasonably mistaken for prison garb” and that “the totality of the circumstances would make it clear [that the employee was] not a convict.” However, the court found the NLRB applied the “special circumstance” exception in “an unreasonable way.” Finding “[the Board’s] expertise is surely not at its peak in the realm of employer-customer relations,” the court wrote that the test to be applied

is not whether AT&T’s customers would confuse the “Inmate/Prisoner” shirt with actual prison garb, but whether AT&T could reasonably believe that the message may harm its relationship with its customers or its public image. To resolve this case, it is enough to ask the question, as Member Hayes did in dissent: “What would you think about a company that permitted its technicians to wear such shirts when making home service calls?”

The court held that the company had proven the presence of special circumstances.

Unions often distribute t-shirts, buttons and the like for employees to wear in support of some union cause. While this activity generally is protected, when employees are in direct contact with customers or with patients, for example, employers should consider whether the “special circumstances” exception may be invoked to prohibit or limit the conduct.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.