Last year, the NLRB held that AT&T could not prohibit its service technicians from wearing a t-shirt while visiting customer homes with the words “Inmate #” on the front and “Prisoner of AT$T” on the back. Last week, the General Counsel’s Division of Advice determined (pdf) that the New York State Public Employee Federation, a union, could prohibit the attorneys in its legal department from wearing a red t-shirt in the office with the words “Unionism Begins at Home” on the front and “PEF Staff” on the back.
The Federation, as the employer, was engaged in negotiations for a new union contract with the United Steelworkers, which represented the Federation’s employees, including the attorneys in the legal department. During negotiations, employees engaged in a variety of concerted activities to publicize their effort to obtain a new contract. They displayed union signs on their desk, posted union signs on employer bulletin boards, and wore badges with various messages.
The union distributed t-shirts to be worn on a specific day. Nearly every union member wore a t-shirt on that day, including two support staff and 5 of the 6 attorneys in the legal department. After seeing the t-shirts, the Federation’s general counsel sent out an e-mail to the attorneys in the legal department stating that t-shirts were not appropriate attire in the office and asking them to “please…not wear them….” The Federation did not make this request of the support staff in the office or two other attorneys who worked for the Federation, but not in the legal department.
Apparently, the Federation’s legal department serves as the “general law office” for the employer, and its clients are not just the elected officers of the Federation, but also individual union members. These clients can visit the office unannounced. The Federation attempts to present its legal department “in the image of a private law firm” by housing it in a separate suite of offices and “providing gold nameplates on each lawyer’s office door.” The attorneys in the legal department were expected to wear professional “business attire” in the office. The Federation was able to point to a single incident in which it had previously instructed an attorney not to wear jeans in the office on a Friday.
Based on these facts, and without discussing the NLRB’s holding in the AT&T case, the Advice memorandum concluded that the Federation had not violated the NLRA. Rather, it found the evidence established the “special circumstances” necessary under established NLRB law to justify a prohibition on the wearing of union insignia while at work. One such “special circumstance” is the display of union insignia that “unreasonably interferes with a public image which the employer has established, as part of its business plan, through appearance rules for its employees.”
For the labor professional, one lesson that can be drawn from the two differing outcomes is the importance of context. Each workplace has different expectations, environment, and business goals. The NLRB’s law on union insignia, like shirts, buttons, badges, etc., will closely examine these differences, and may arrive at different conclusions. Thus, it is important for each employer, to the extent it has a dress code, to assess its requirements in light of their respective circumstances.