Employer Lawfully Refused to Allow Worker to Wear Hardhat with Vulgar Pro-Union Sticker
A non-union contractor did not violate the National Labor Relations Act when it prohibited a union-affiliated iron worker from working while wearing a hardhat bearing a sticker with a cartoon depicting someone urinating on a rat identified as a non-union construction firm.
Leiser Construction hired Travis Williams in April 2005. Williams did not reveal his affiliation with Iron Workers Local 10 at the time of hire. During his lunch break a few days after beginning his job, Williams put on a union t-shirt and a hardhat containing various union stickers, and began distributing union authorization cards. The jobsite superintendent called Lloyd Leiser, owner of the company, who spoke with Williams on the phone and ordered him to leave the jobsite and to report to a different jobsite the next day. Williams reported to the other jobsite the next day, bringing with him a union organizer who had been unlawfully fired by Leiser for union activity four months earlier. Williams was again wearing his own hardhat bearing union stickers, including the rat sticker. Leiser told Williams he would not allow him to work with the rat sticker on his hardhat. Williams declined to remove the sticker and announced that he was “going on strike.” The union organizer then told Williams to go home, and Williams left.
Employees generally have a protected right under the National Labor Relations Act to wear union insignia at work. However, the National Labor Relations Board has held that this right may be overridden when “special circumstances” exist, such as when the insignia are vulgar or obscene, or may “exacerbate employee dissension, or when restriction is “necessary to maintain decorum and discipline among employees.” In such cases, the Board and courts “balance the employee’s right to engage in union activities against the employer’s right to maintain discipline or to achieve other legitimate business objectives, under the existing circumstances.”
Applying that standard to the present case, the Board found that Leiser Construction met its burden of proving special circumstances. The Board found that the rat sticker was “unquestionably vulgar and obscene.” The Board further found that Leiser Construction’s restriction was narrowly tailored to prohibit only the rat sticker without infringing on Williams’ right to display other union insignia. The fact that Leiser did not ask Williams to remove any of the numerous other union-related stickers on his hardhat was a significant factor in the Board’s determination that the company acted lawfully. The Board dismissed the charge that Leiser Construction violated the Act by prohibiting Williams from displaying the rat sticker along with a charge that the company unlawfully discharged Williams.
Leiser Constr., LLC, 349 NLRB No. 41 (2/28/07).
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