Pacific Bell Telephone Co. recently was cited by the NLRB (“the Board”) for suspending and docking pay from workers wearing buttons and stickers with crude and potentially offensive language. The Board concluded buttons saying things like “WTF Where’s the Fairness” and “Cut the Crap! Not My Healthcare” were not so vulgar that they forfeited legal protection, and that the employer failed to demonstrate any special circumstances that would overcome an employee’s right under the National Labor Relations Act to wear union insignia. Pacific Bell Telephone Co., 362 NLRB No. 105 (June 2, 2015).
The employees in this instance traveled to customers’ locations to install and repair telephone and cable services. After a long history of collective bargaining, the employer instituted a new dress code barring employees from wearing buttons, pins and stickers on their company-brand apparel.
In 2012 when the collective-bargaining ended, employees took to wearing buttons and stickers that bore statements such as “WTF, Where’s The Fairness,” “FTW Fight To Win,” “CUT the CRAP! Not My Healthcare,” as well as other less provocative expressions. In response, the company refused to assign these employees to jobs until they removed the offending items, and those who refused were sent home without pay and subject to attendance infractions.
A Case of Delicate Sensibilities?
The company claimed that these items were so vulgar and offensive that they no longer constituted protected speech. The Board disagreed, noting that the buttons with the “WTF” and the FTW” acronyms actually bore non-profane explanations on their face so as to eliminate their offensiveness. As for the “Cut the Crap!” buttons, the employer argued that the font of the words was offensive because it resembled human waste. While agreeing that such an argument could be valid in some cases, the Board disagreed with the employer’s artistic interpretation and ruled that the buttons were protected.
The company contended that special circumstances permitted the ban on these items since they had a heightened interest in maintaining a particular image in the community. If the was true, the Board reasoned, why did they historically allow these workers to wear such items as baseball caps, sweatshirts, logoed t-shirts and jewelry that also deviated from the policy?
The Board also invalidated the company’s ban on buttons saying “No on Prop 32”, a state ballot initiative seeking to prevent labor unions from using payroll deducted monies for political purposes. While agreeing that employers might ban buttons favoring controversial political issues, the Board found that the issue at hand did not rise to that level, nor did the buttons necessarily misrepresent that the company as a whole was taking a position on the issue. Without specific evidence supporting their concerns, the employer’s parade of horribles about what might happen if the buttons were worn in public was not enough to overcome the employees’ right to wear those buttons.
Bottom Line
The NLRB currently takes a strong stand on efforts to curb employee speech. Before taking action to do so, employers must be confident that their efforts will not be rebuffed by the NLRB.