The U. S. Court of Appeals for the D. C. Circuit has a long history of frustration with the NLRB’s views on a variety of issues. In fact, the court once lamented that “[W]e have found the Board ‘remarkably indifferent to the concerns and sensitivity’ that lead employers to adopt rules intended ‘to maintain a civil and decent workplace.’” Judging by a recent decision, the court’s frustration with the Board remains alive and well.
A Las Vegas-based company that managed pharmacy benefits and filled mail-order prescriptions launched an employee recognition program called “WOW.” In an effort to encourage superior employee performance, it recognized certain employees each week with “WOW Awards,” based on their achievements in the areas of customer service, productivity, etc. The company thought that the program was a nice gesture and that the employees would appreciate it. Just as importantly, management showed off the program and the WOW Awards to current and prospective customers as evidence of the company’s commitment to service.
Not all employees, however, were on-board with the WOW program. On the day that a customer was scheduled to tour the plant, one employee wore a T-shirt bearing a union logo and the words, “I don’t need a WOW to do my job.” The company viewed the words as insulting and as a threat to its efforts to attract and retain customers. Thus, management asked the employee to take off the shirt, which he did. Later, the union filed an unfair labor practice charge, claiming that the company’s dress code policy was too broad and that asking the employee to take off the T-shirt violated his right to engage in conduct for the mutual aid and protection of himself and his co-workers.
The NLRB ruled that the company’s actions were unlawful. The court, however, saw it differently.
It noted that an employee can harm an employer’s customer relations by belittling or critiquing aspects of the employer’s operations. Thus, management naturally would be concerned about and try to prevent employees from displaying slogans that an outsider might view as sullen resentment of management. That is particularly true when the outsider is a customer and the employee conduct occurs on the company’s premises and is directly aimed at a centerpiece of the company’s customer relations efforts.
In the court’s view, the message on the T-shirt was insulting to the company and would have undermined its efforts to attract and retain customers. Thus, management acted within its rights when it asked the employee to take off the T-shirt.
The case is Medco Health Solutions of Las Vegas, Inc. v. NLRB, and it can be found here.