Fourth Circuit Holds That Requiring Employees to Wear Union Logo is Unlawful

The Fourth Circuit reversed the NLRB and held that an employer and a union violated the National Labor Relations Act by enforcing a provision in a collective bargaining agreement that required employees to wear a union logo next to the employer’s logo on their uniforms. Lee v. NLRB, 2005 WL 14896 (Jan. 4, 2005).

BellSouth and the CWA signed a collective bargaining agreement that required employees to wear a uniform displaying the CWA logo next to the BellSouth logo. Two employees who did not want to wear the CWA logo filed an unfair labor practice charge with the NLRB. The NLRB’s General Counsel issued a complaint alleging that BellSouth and the CWA violated the two employees’ statutory right to refrain from engaging in union activities.

The NLRB held that Bellsouth and the CWA acted lawfully in requiring all employees to wear uniforms bearing the twin logos. It applied a balancing test that balanced the two employees’ right to refrain from engaging in union activities against the interests of BellSouth and the CWA in conveying a positive public image via the CWA logo.

The NLRB found that the two employees had a legitimate interest in refraining from wearing the CWA logo because it implies support for the CWA. The employees’ interest was diluted by two factors. First, the NLRB explained that the presence of a union affects the degree to which an employee may engage in or abstain from union activities. Second, the CWA logo was not isolated, but rather it appeared next to the BellSouth logo. The NLRB found that the twin logos did not so much convey that the individual employee donning the uniform supported the CWA as much as it communicated that the employee was simply an employee of a unionized company. Thus, the employees’ interests were moderate.

On the other hand, the Board found some heft to BellSouth’s and the CWA’s interests in conveying an image to the public that BellSouth’s labor relations are harmonious and that its employees are well paid and highly trained. The NLRB found that the balance of interests weighed in favor of BellSouth and the CWA and against the dissenting employees. Based on this balance, the NLRB found that the collectively-bargained logo requirement was a “special circumstance” that justified any intrusion on the dissenters’ rights to refrain from union activity.

The Fourth Circuit disagreed. First, the court noted the precedent that holds that employees have a Section 7 right to wear union insignia absent special circumstances. The court found a reciprocal right to refuse to wear union insignia, absent special circumstances, from Section 7’s “right to refrain” language. The court then examined BellSouth’s and the CWA’s purported special circumstance for prohibiting employees from refusing to wear the CWA logo: the desire to convey a public image as a company with stable labor relations, a well paid workforce, and highly trained employees. As a factual matter, the court found that the CWA logo did not communicate that message. The court stated that a customer could view the CWA logo with suspicion and associate it with service disruptions and labor disputes. Because the court found that the logo in fact communicated an ambiguous message or possibly a negative image, the court held that BellSouth and the CWA did not establish a special circumstance justifying an intrusion on employees’ Section 7 right to refrain. Finally, the Fourth Circuit dismissed the notion that the logo requirement was any more of a special circumstance because it was the product of collective bargaining. The court suggested that the right of an individual to wear or refuse to wear union insignia is a right that unions cannot bargain away.

Consequently, the Fourth Circuit reversed, remanded, and ordered the NLRB to modify its order consistent with its opinion (i.e., to find that BellSouth and the CWA had violated the NLRA).

Under the Fourth Circuit’s ruling, employers and unions cannot agree to require employees to wear a union logo. How then can a union gain greater public recognition through a company’s uniform policy? The Fourth Circuit might have reached a different result if the collective bargaining agreement had allowed dissenting employees to opt out of wearing the union logo. Thus, unions and employers might be allowed to negotiate a uniform requirement where the default uniform contains the union logo, provided that a dissenting employee is able to request a uniform without the union logo. In its opinion, the NLRB suggested that such an opt-out might have its own Section 7 implications because employees would then be required to signal their favor or disfavor of the CWA. The NLRB stopped short, however, of saying that such a scheme would be unlawful.