An Administrative Law Judge of the National Labor Relations Board has once again weighed in on acceptable attire in the workplace. The Judge decided that an employer improperly disciplined a union employee for wearing a t-shirt that had the word “slave” along with a picture of a ball and chain. The decision follows on the heels of an earlier NLRB order allowing AT&T workers to wear prison striped t-shirts while visiting customers’ homes.

The recent case, Alma Products Co., concerned an employee named Gluch, who was active in the union at Alma Products. The union and Alma Products were involved in difficult negotiations in 2012. Gluch was part of an unofficial union reaction committee that tried to “pump up” union members. In addition to displaying signs and wearing pro-union buttons, Gluch wore a shirt to work on which was printed the word “slave” and a ball and chain. The shirts had been created years before as part of union activities and been worn on multiple occasions over the years. When Gluch wore the shirt to work in May 2012, his supervisor asked him to take the shirt off or turn it inside out because the company did not like the shirt. Gluch declined but said that he would not wear the shirt again. Because Gluch would not remove the shirt or turn it inside out, the employer sent Gluch home without pay. The union filed a charge with the NLRB, saying that the employer’s actions and its policy interfered with employees’ rights under Section 7 of the National Labor Relations Act.

Section 7 of the NLRA guarantees employees’ rights to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. A workplace rule that explicitly restricts Section 7 rights is unlawful. If a rule does not explicitly restrict Section 7 rights, it will still be unlawful if (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. In this case, Alma Products had a dress code policy that prohibited clothing displaying vulgar/obscene phrases, remarks or images which may be racially, sexually or otherwise offensive and clothing displaying words or images derogatory to the company. The judge found that the dress code did not explicitly restrict Section 7 rights but that it was overly broad and could be reasonably construed to restrict Section 7 rights. The judge rejected the arguments from Alma Products that the shirt was racially offensive, in part because the shirt had been worn on many occasions by numerous employees over the years, without any concern from the company that its message or image was racially offensive. The judge ordered the employer to pay Gluch his lost wages and to stop maintaining and enforcing the overly broad dress code.

As we have been blogging, the NLRB has been much more active inserting itself into the workplace, whether the issue is social media policies, dress codes, employment at will statements, or mandatory arbitration agreements. Even union free employers should be mindful of the NLRB’s tentacles when disciplining employees.