You may recall a April 7, 2015 blogpost where I discussed the NLRB’s decision that an employee who called his boss a “motherfucker” and wrote on Facebook to “f–k his mother and his entire f–king family!!!!” had engaged in protected activity under the National Labor Relations Act (NLRA) since that “colorful” language was related as a part of a union campaign. Pier Sixty, LLC, 362 NLRB No. 59 (March 31, 2015). Just when you thought it couldn’t get any stranger, there’s more.
The NLRB has now held in Pac. Bell Tel. Co., 362 NLRB No. 105 (June 2, 2015) that Pacific Bell and Nevada Bell (who are really AT&T) violated the NLRA when they told technicians in California and Nevada that they could not wear Communications Workers of America (CWA) buttons and stickers that said “WTF Where’s the Fairness,” “FTW Fight to Win” and “Cut the Crap! Not My Healthcare.” The NLRB held that the language of the buttons and stickers wasn’t vulgar or offensive enough to lose NLRA protection. In so doing, the Board said that the company didn’t show any special concerns (such as interference with the company’s desired public image) to outweigh the employees’ NLRA-protected right to wear union insignia.
The Board looked at a 1972 decision, Southwestern Bell Telephone Co., 200 N.L.R.B. No. 667 (1972), where it held that an employer could lawfully prohibit employees from wearing sweatshirts that said: “Ma Bell Is A Cheap Mother.” There the Board found that the phrase could stand alone as a potentially profane statement, unprotected by the Act. In this case, however, the Board said that since the acronyms WTF and FTW were followed by “Where’s the Fairness” and “Fight to Win,” it was clear what they meant, negating “any offensive connotation.”
“We find that the possible suggestion of profanity, or ‘double entendre,’ … is not sufficient to render the buttons and stickers unprotected here, where an alternative, nonprofane, inoffensive interpretation is plainly visible and where, further, the buttons and stickers were not inherently inflammatory and did not impugn the Respondents’ business practices or product,” the Board said. It also agreed with the administrative law judge who found that the “Cut the Crap!” buttons “had no ‘scatological’ content” that would result in the loss of NLRA protection.
The Board found that the company’s claim the buttons and stickers violated a policy against non-branded apparel and interfered with “desired public image” was without merit, since it did not consistently enforce those policies and permitted employees to wear a “variety” of union-related and nonunion-related apparel.
I have become more and more confused with the direction the Board is taking in these cases. While one cannot reasonably expect that all workplaces will have the ambiance of a Victorian Salon, it appears that the Board has decided virtually anything goes in the workplace — as long as the colorful language is in support of a union. This must be what the Board views as “leveling the playing field.” ROTFLMAO. Which means “raining on the fields located miles around Orlando.” Why? What did you think I meant?