Quite an interesting decision from NLRB Administrative Law Judge Paul Bogas last week. The case, Alma Products, involves the discipline of an employee for wearing a T-Shirt that said “slave” and depicted a ball and chain. The t-shirt also displayed the employee’s time clock number. The evidence was clear that the T-shirts had been printed as part of an earlier bargaining fight and were intended to criticize wages and working conditions at the company. Although the employer’s position before the ALJ was that the shirts were racially offensive, and a threat to the company’s ability to attract customers, the employer’s own representatives testified that they understood the shirt to be a “general wage and conditions protest.”
The ALJ, correctly in my view, found that wearing the shirt was protected activity here and thus that the discipline was an unfair labor practice. Equally important, though, the ALJ concludes that – in another context – the wearing of such a shirt could be unprotected. In particular, if there is evidence of racial animus, or if the word “slave” is “used in direct reference to an African-American employee and in a way demeaning to that employee” then the employer would be free to prohibit the shirt or discipline its wearer. A balanced, context sensitive, decision.