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No More 'Inmate' Shirts for AT&T Employees, D.C. Cir. Rules

Alternative Title: AT&T Can Ban Union 'Inmate' Shirt, D.C. Circuit Rules

It can be hard to organize workers and wage a successful grassroots labor campaign. Sometimes, theatrics are called for. That's what motivates carpenters to inflate giant rats outside non-union construction sites and museum workers to 'bomb' the Guggenheim with protest fliers. That might also be the impetus behind AT&T Connecticut employees donning shirts that said "Inmate" and "Prisoner of AT$T" when interacting with customers.

After AT&T banned the "Inmate" apparel, the NLRB ruled 2-1 that employees must be allowed to wear the protest shirts. Sadly, Connecticuters can no longer look forward to the spectacle of seeing an AT&T customer service representative fix their cable in a prison costume. "Common sense" requires the NLRB's decision to be overturned, the D.C. Circuit ruled today.

Not Your Typical Work Uniform

The shirts were printed up as part of a public pressure campaign during contract negotiations between AT&T Connecticut and the Communications Workers of America. The outfits were simple white shirts with black striping -- as one would imagine. If the prison motif wasn't clear enough, the clothes were labeled with "Inmate" on the front and "Prisoner of AT$T" on the back, but with no direct reference to the union or contract dispute.

AT&T Connecticut, predictably, was unamused. The company ordered employees to take off the shirt when interacting with customers or in public and issued a one day suspension to 183 workers who refused. The union filed an unfair labor practice charge and won. The NLRB ruled that AT&T had violated Section 7 of the National Labor Relations Act, which protects the rights of employees to wear union apparel. The Board rejected AT&T's argument that this was a "special circumstances" exception to that rule, finding that "the totality of the circumstances would make it clear" that AT&T employees were not actual convicts -- perhaps not exactly what AT&T was concerned with.

Offending Customers is Special Enough

In overturning the NLRB decision, The D.C. Circuit's Judge Kavanaugh began with the simple proposition that "common sense sometimes matters in resolving legal disputes." Here, that common sense dictated that AT&T could prohibit the "Inmate" shirt as an exception to the general Section 7 rule. The special circumstances exception encompasses an employer's need to protect their product and maintain "a certain employee image," the D.C. Circuit noted. The burden of showing special circumstances is on the employer, but simply demonstrating a reasonable belief that a shirt's message would damage customer relations is enough.

The shirts, however, were retired years ago. The Communications Workers of America won a favorable contract with AT&T Connecticut after 18 months of bargaining -- way back in 2010.

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