Employee T-Shirt May Have Crossed the Line

(CN) - Medco may have been justified in ordering an employee to remove a union-sponsored T-shirt protesting the company's employee-appreciation program, the D.C. Circuit ruled.

"This case arises mainly from an employer's belief that exclaiming 'WOW' to celebrate workers' special achievements would hearten the workers and quicken their zeal," Judge Stephen Williams wrote for a three-judge panel. "As so often in human relationships, things proved more complicated."

Medco Health Solutions employs nearly 850 people at its Las Vegas mail-order facility where it sells pharmaceuticals. It introduced the "WOW program" in 2009 to recognize employee achievements, and highlights this feature to tour groups by bringing them past a "Wall of WOW" in the cafeteria.

The workers are represented by the United Steel Workers Local No. 675, and Michael Shore, a vice chairman for the union, wore a T-shirt protesting the WOW program to work on Feb. 12, 2010.

The T-shirt bore the union logo and read, "I don't need a WOW to do my job." With a Medco client scheduled to tour the facility that day, General Manager Tom Shanahan summoned Shore to his office, said the shirt was "insulting" to Medco, and asked Shore to remove it.

Shanahan told Shore that if he did not support the WOW program, "there were plenty of jobs out there."

Shore removed the shirt and did not wear it again, but the union brought the matter before the National Labor Relations Board.

Medco argued that the shirt violated the company's ban on "phrases, words, statements, pictures, cartoons or drawings that are degrading, confrontational, slanderous, insulting or provocative."

The board nevertheless found that Shore wore the shirt as a union-supported protest, and Shanahan unlawfully invited Shore to quit his job in response to his protest of working conditions.

After reviewing the matter, however, the D.C. Circuit set that decision aside Friday. "Medco makes a straightforward argument that the message on the T-shirt was insulting to the company and would have undermined its efforts to attract and retain customers," Williams wrote. "To that end, Medco has provided considerable evidence that the WOW program is an important element of the pitch it gives prospective and current clients."

Later the decision states: "We do not think the board has adequately explained why Medco's claim of harm to customer relations requires evidence beyond what it has already adduced. ... Especially for a firm selling a service, concern for customers' appraisal of its employees' attitudes seems natural. Obviously we don't mean to suggest that employers are free to suppress employee speech in the interest of presenting a Potemkin village of intra-firm harmony, but that is quite different from trying to exclude the display of slogans that an outsider might read as sullen resentment (especially when the object of discontent is something so seemingly inoffensive as the WOW program)." (Italics and parentheses in original.)

Another aspect of the NLRB's ruling slammed Medco an unrelated issue that also involved the dress code. It found that Medco had committed an unfair labor practice by refusing to bargain with the union about a change in dress code policy that would require pharmacists to wear lab coats during working hours and dress in business casual on scheduled tour days.

The D.C. Circuit refused to review this finding and granted the board's cross-application for enforcement.

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