701 F.3d 710
D.C. Cir.2012Background
- Medco Health Solutions implemented a WOW program with weekly awards to motivate employees and display Wall of WOW during customer tours.
- In Feb 2010, a union member wore a T-shirt with union logo and anti-WOW message; supervisor pressured him to remove it.
- Medco argued dress-code changes (lab coats for pharmacists; business casual on tour days) were non-mandatory subjects for bargaining but questioned a management-rights clause from a predecessor contract.
- Board found Medco violated § 8(a)(1) and § 8(a)(5) by not bargaining over the dress-code change; ALJ found additional issues with the T-shirt and dress-code language overly broad.
- The Board ordered rescission of the overly broad dress-code rules restricting provocative, insulting, or confrontational clothing, and required actions related to the T-shirt ban; Medco sought review, and the court remanded for further proceedings on the T-shirt issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the dress-code change a mandatory bargaining subject? | Medco argues the clause survived under a predecessor agreement and was not bargained. | Medco contends the union failed to timely raise concerns; nonetheless the change is a mandatory subject. | Dress-code change is a mandatory subject; Board's enforcement on bargain is upheld. |
| Was Shore's T-shirt activity protected concerted activity under §7? | Medco contends activity was not concerted or aimed at improving terms/conditions. | Board held Shore engaged in concerted activity reflecting a group complaint about WOW. | Shore's conduct was protected concerted activity; Board erred in some remedies. |
| Did Medco's dress-code ban unduly restrain protected activity under §7? | Medco argues the ban was overly broad and chilled protected activity. | Board treated ban as restraining protected activity; ALJ criticized breadth of rule. | Remanded to address breadth of rule; not all aspects sustained. |
| Did the Board properly assess harm to customer relations from the T-shirt message? | Medco provided evidence the WOW program matters to customers; T-shirt could harm relations. | Board found no evidence of actual customer harm requiring a limit on expression. | Court questions Board's reasoning; remand for further consideration on customer-relations impact. |
| What is the appropriate remedy posture given the above? | Medco seeks reversal on T-shirt ban and broad rule restrictions. | Board’s remedies are appropriate for dress-code issues. | Board’s dress-code remedy affirmed in part; T-shirt/overbreadth issues remanded. |
Key Cases Cited
- Eastex, Inc. v. NLRB, 437 U.S. 556 (Sup. Ct. 1978) (broad protective scope of §7)
- Pathmark Stores, Inc., 342 NLRB 378 (0 D.C. Cir. 2004) (customer-relations harm supported for bans)
- Noah’s New York Bagels, Inc., 324 NLRB 266 (0 D.C. Cir. 1997) (customer-relations concerns allow bans)
- Lutheran Heritage Village-Livonia, 343 NLRB 646 (0 D.C. Cir. 2003) (test for whether rules unlawfully restrict protected conduct)
- Adtranz ABB Daimler-Benz Transp., N.A. v. NLRB, 253 F.3d 19 (D.C. Cir. 2001) (employer rights to maintain civil workplace)
- Gissel Packing Co. v. NLRB, 395 U.S. 575 (Sup. Ct. 1969) (Board expertise; scope of Board’s discretion)
- Citizens Inv. Services Corp. v. NLRB, 430 F.3d 1195 (D.C. Cir. 2005) (concerted activity may be initiated by individuals)
- New River Industries, Inc. v. NLRB, 945 F.2d 1290 (4th Cir. 1991) (one-time employee actions not protected where not linked to group)
- United Steelworkers v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980) (collective bargaining and terms/conditions scope)