One of the key assets of any company is its customer base. Businesses spend a lot of money to build that base and the loyalty of that base to the company’s goods or services. Not surprisingly, businesses care about what their customers think about the company, and that includes the employees who deliver the goods or services the company provides.
Late last week, however, the NLRB ruled that those considerations take a back seat to employees’ desires to speak out about a dispute with their employer. In AT&T Connecticut, 356 N.L.R.B. No. 118 (2011), the NLRB ruled that an employer violated the law when it prohibited its service technicians, when visiting customer’s homes, from wearing a t-shirt critical of the company.
The NLRB described the shirt as a plain white t-shirt with "Inmate #" in "relatively small" letters the upper left front of the shirt. On the back of the shirt, two sets of vertical stripes appeared with "Prisoner of AT$T" in between the stripes. AT&T, concerned about the reaction of its customers to these shirts, prohibited service technicians from wearing them.
The NLRB found that the shirts were not reasonably likely to cause fear or alarm among the employer’s customers. The print was relatively small and the reference to "prisoner" was only half the size of the reference to "AT$T." Moreover, the majority noted that the technicians appeared at customers’ homes in response to appointments the customers made; called the customer before coming to the home; carried identification cards on their belts or wore them around their necks; and would have an AT&T truck "parked[ed] nearby."
In a dissenting opinion, Member Hayes came to a different conclusion. He found that the employer’s restriction was appropriate under the circumstances. Customers would first see "Inmate #" on the t-shirts upon opening their doors. The other print was on the back of the t-shirts. There was no reference to a labor dispute anywhere on the shirt. Finally, the employer banned the t-shirts at a time when, in the state where they were being worn, there had been a home invasion by two convicted felons resulting in the deaths of a mother and her two children. Under these circumstances, Member Hayes believed the employer’s prohibition on the t-shirts was permissible.
For the labor professional, the opinion serves as a reminder of the scope of an employee’s rights under the NLRA. Employees wearing union insignia will often be protected, and the employer will often find it difficult to impose limitations on those rights.