In The Southern New England Telephone Company d/b/a AT&T Connecticut (AT&T East), 356 NLRB No. 118 (2011) issued March 24, 2011, a divided three member panel of the National Labor Relations Board adopted the decision of the Administrative Law Judge finding that AT&T service technicians who were wearing “prisoner” and other protest t-shirts while working to highlight labor issues with the company were engaged in protected activity within the meaning of Section 8(a)(1).

 AT&T had suspended 183 employees for wearing the “prisoner” and two other (“Havoc” and “Scab”) shirts while working. The subject prisoner shirts were plain white and listed only “Inmate #____” on the front and had “Prisoner of AT$T” with vertical stripes on the back.  The company was ordered to post a notice advising employees of their rights to wear the shirts, rescind all suspensions, and pay backpay.

Member Brian E. Hayes observed in dissent, “[i]t is well established that, although employees have a protected right under Section 7 of the Act to wear union insignia while working, an employer may limit this activity if it establishes ‘special circumstances’ that justify the limitation imposed” (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)).  Member Hayes felt the special circumstances exception applied in this case. 

However, the majority, consisting of Chairman Wilma B. Liebman and Member Craig Becker, found that AT& T failed to demonstrate sufficient “special circumstances” to justify prohibition of wearing the shirt and thereby violated Section 8(a)(1) of the Act. The majority determined the shirt “was not reasonably likely, under the circumstances, to cause fear and alarm among [AT&T] customers.” It noted the shirt looked very little like actual prison garb and that the subject technicians normally arrived at customers’ homes, in AT&T branded trucks, only after an appointment had been made and a confirming phone call received.  The majority distinguished this situation from Pathmark Stores, 342 NLRB 378 (2004), where special circumstances were found allowing a grocer to restrict employees from wearing “Don’t Cheat About the Meat” T-shirts while working.