It must be frustrating to be in the minority of an administrative adjudicatory body and to constantly be forced to write dissenting opinions, as was the case for former National Labor Relations Board (NLRB) member Brian E. Hayes (now an Ogletree Deakins shareholder). But if anyone doubted the value of a well-written dissent, they need only look to the July 10, 2015 decision of the District of Columbia Circuit Court of Appeals in Southern New England Telephone Company v. National Labor Relations Board, in which the court reversed the Board majority and adopted Hayes’ dissenting opinion in the NLRB’s 2011 decision, The Southern New England Telephone Company d/b/a AT&T Connecticut, 356 NLRB No.118 (2011).
The legal issue in this case was whether AT&T Connecticut violated the National Labor Relations Act (NLRA) by barring customer service representatives from wearing union shirts, which stated “Inmate #” on the front and “Prisoner of AT$T” on the back or whether the ban fell within the “special circumstances” exception to employees’ Section 7 right to wear union clothing and other insignia at work. The Communication Workers of America (CWA) had encouraged its members to wear the union shirts at work in order to pressure the company during contract negotiations.
It is well-established that employees have a right under Section 7 of the NLRA to wear union insignia at work. However, the Board and courts have recognized an exception to that right in “special circumstances.”
When hundreds of AT&T employees arrived at work in their shirts, the company instructed those who interact with customers and the public to remove them. AT&T instituted 1-day suspensions for 183 customer service representatives who failed to comply with the directive to remove the shirts. AT&T Connecticut claimed that its prohibition fell within the “special circumstances” exception because allowing customer service representatives to wear the union shirt would harm the company’s relationship with its customers, as well as its public image.
The NLRB majority (Member Liebman and Member Becker) ruled 2-to-1 that the company’s prohibition on wearing the union shirts did not fall within the “special circumstances” exception, but Member Hayes dissented.
Thereafter a long, convoluted appeals process ensued. AT&T filed a request for review of the Board’s decision to the D.C. Circuit, and the case was argued on December 12, 2012. The case was held in abeyance by the court on February 19, 2013, pending the Supreme Court of the United States’ ruling in Noel Canning v. National Labor Relations Board as to whether the Obama administration’s “recess appointments” to the Board were constitutional. Following the Noel Canning decision, which had no bearing on this case, the D.C. Circuit removed the case from abeyance on December 8, 2014 and issued its decision on July 10, 2015.
D.C. Circuit Decision
The D.C. Circuit adopted former member Hayes’ dissent, granted the “special circumstances” exception, and vacated the Board’s decision. According to the D.C. Circuit, the “special circumstances” exception requires balancing employees’ Section 7 rights against employers’ rights to establish and enforce reasonable workplace rules. Thus the issue to resolve is whether AT&T Connecticut reasonably believed the “Inmate/Prisoner” shirt in question would harm its relationship with its customers or its public image generally so as to fall under the “special circumstances” exception.
The facts of the case revealed that several years before the customer services representatives wore the “Inmate/Prisoner” shirts, the community of Cheshire, Connecticut had experienced a widely publicized home invasion by convicted felons on parole that resulted in three deaths. AT&T argued that the “Inmate/Prisoner” shirt, which made no mention of the union or the labor dispute, reasonably could confuse, alarm, and frighten AT&T’s customers when its representatives appeared at their door and that its use otherwise would harm AT&T’s public image. AT&T Connecticut noted that it allowed employees to wear the “Inmate/Prisoner” shirt, as well as other union hats, buttons, insignia and paraphernalia, at work when they were not exposed to customers.
Based on these facts, the D.C. Circuit was impressed by Hayes’ dissent that the facts justified a “special circumstances” exception. As Hayes wrote in the opening lines of his dissent:
Imagine that you are a customer of AT&T Connecticut awaiting a service call. The doorbell rings. You open it, and the first thing you see is someone wearing a T-shirt bearing only “INMATE #” on its front. Would you hesitate to let that person in your home, particularly if you lived in a state where there had been a highly publicized and horrific home invasion and murder? What would you think about a company that permitted its technicians to wear such shirts when making home service calls?
. . .
In my view, the judge and majority have failed to give sufficient weight to the potential for employees wearing these shirts to frighten customers in their own homes and thereby to cause substantial damage to the Respondent’s reputation.
The D.C. Circuit’s opinion began: “Common sense sometimes matters in resolving legal disputes. This case is a good example.”
The NLRB has long recognized a broad Section 7 right of employees to wear union insignia at work. The employer bears the difficult burden of proving that “special circumstances” exist to deny that right, and employers should not do so without closely examining the facts and the applicable legal framework. Sometimes in the final analysis the facts, consistent application of company rules, and common sense considerations can justify the “special circumstances” exception as it did here; and, fortunately, sometimes a well-written dissent prevails on appeal.