During union contract negotiations, AT&T employees were encouraged to wear t-shirts on the job that said “Inmate” on the front and “Prisoner of AT&T” on the back. AT&T accepted the employees wearing the shirts in the offices and other non-public workspaces. Not surprisingly, AT&T did not want employees wearing these shirts anywhere they were engaging with the public. Suspensions were issued to 183 employees who refused to stop wearing the shirts with the public.
The union challenged these suspensions as unfair labor practices with the National Labor Relations Board (“NLRB”). AT&T responded that it reasonably believed these t-shirts were offensive and would damage its relationships with its customers. The administrative law judge and the NLRB ruled for the employees. They decided that AT&T’s concerns were unsupported because the shirts “would not have been reasonably mistaken for prison garb.”
On appeal to the D.C. Court of Appeals, the union decision was overturned because “common sense sometimes matters in resolving legal disputes.” Previous cases have held that if an employer can demonstrate “special circumstances” to limit union displays it can outweigh the employee’s right to display it. A reasonable belief that the display will damage customer relations is sufficient. Relying on whether it would be confused with prison garb was the incorrect test, according to the court. The NLRB does not have the right to ignore a company’s reasonable business judgment and substitute its own.