Dress Code Overbroad, Discipline for Wearing “Slave Shirt” Unlawful

In Alma Prods. Co., NLRB ALJ, No. 7 CA-89537, 8/14/13, the Administrative Law Judge (“ALJ”) found that the employer violated Section 8(a)(3) and (1) when it disciplined an employee for refusing to remove his shirt with the printed word “slave” and a representation of a ball and chain.  The “slave shirt” was originally created by employees during a contentious contract negotiation in 1993 for the purpose of disputing poor wages and working conditions.  By 2005, the shirt was being worn with some regularity during working hours at the employer’s facility.  The employer’s new CEO found the shirt offensive and addressed his concerns with the Human Resource Manager.  As a result, the employer issued a new dress code policy in 2006:

Effectively immediately, 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 will not be allowed in any facilities.  Similarly displays of these kinds of items are also prohibited on workstations, lockers, tool boxes and the like.

In February 2012, the employer and the union began negotiations for a new contract to replace the one set to expire.  In May 2012, while negotiations were still on-going, an employee wore the “slave shirt” to work.  The employer cited the dress code policy and gave the employee two options:  (1) turn the shirt inside out; or (2) wear a different shirt purchased by his supervisor.  After the employee refused both options, the employer sent the employee home without pay.  In September 2012, a charge was filed by the Union alleging that the employer’s dress code violated Section 8(a)(1) of the Act and the employer violated Section 8(a)(3) and (1) by disciplining the employee for wearing the “slave shirt.”

The ALJ found in favor of the union on both counts.  The ALJ first determined that the employer’s dress code policy unlawfully prohibited derogatory comments regarding the employer, thus restricting employees’ Section 7 rights.  The ALJ also found that the “slave shirt” had a long history at the plant as a form of protest against the employer’s bargaining behavior.  The ALJ concluded that the shirt was understood as a complaint about general wages and working conditions and was unrelated to race.  The ALJ then cited a long string of decisions where the use of the word “slave” in a union context was found not to be racially offensive.

The ALJ’s decision demonstrates that previously held notions of what constitutes common sense appropriate attire at the workplace are being displaced with the NLRB’s aggressive protection of employees’ Section 7 rights.   If interested in aligning your company’s dress code policy and other workplace policies with the most recent NLRB decisions, please contact the St. Louis Employment Law Attorneys of McMahon Berger PC.

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 Authored by Brian C. Hey