Court of Appeals Applies “Common Sense” to NLRB Decisions
By Ruder Ware Alumni
July 29, 2015
Two recent decisions by the DC Circuit Court of Appeals (DC Circuit) have overturned National Labor Relations Board (NLRB) decisions and applied “common sense” in reviewing decisions from the Board. In both the decisions, the DC Circuit overturned a decision by the NLRB that found an employer to have committed unfair labor practices by the manner in which the employer prohibited conduct of employees deemed to be an exercise of Section 7 rights.
In the first decision, the DC Circuit overturned a Board decision and held that AT&T Connecticut did not commit an unfair labor practice when it barred its employees from wearing white shirts with black letters that said “Inmate Number” on the front and “Prisoner of AT&T” on the back when these employees interacted with members of the public and customers. The DC Circuit held that AT&T Connecticut did not commit an unfair labor practice when it banned employees from wearing these t-shirts when performing work for the company that involved interaction with customers and then disciplining those employees that refused to take off the shirts when performing work. The NLRB felt that the messages on the shirts were protected speech but the DC Circuit found that the company had the right to exercise some control over the attire worn by these employees when interacting with members of the public and being in customer homes for repair work. The DC Circuit felt that the messages on the t-shirts were inappropriate and the company had the right to prohibit “unprofessional clothing to be worn by employees” in those instances when interacting with customers.
In a second decision, the DC Circuit Court of Appeals overturned a Board decision by holding that a casino resort did not commit an unfair labor practice by asking police to issue citations to union demonstrators at a union protest that included blocking the walkway in front of the casino. The DC Circuit held that the casino’s communication with the police was considered protected speech and did not interfere with the protected speech of the union protesters. The case has a long history of litigation between the Casino and the Culinary Workers and Bartenders Unions but in the end, the DC Circuit held that the actions taken by the Casino to ask for law enforcement to make arrests did not constitute an unfair labor practice or an improper restriction on the protected speech rights of the union members involved in the protest.
These two decisions show that employers are often required to proceed to court in order to overturn decisions made by the NLRB. Employers must be very careful because the NLRB has made a number of decisions that extend the union free speech rights of individuals. Employers want to avoid a finding of a violation of union free speech rights in order to avoid a negative reputation.
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