AT&T Connecticut

National Labor Relations Board - Administrative Judge Opinions

Jun 18, 2010

34-CA-012451 (N.L.R.B. Jun. 18, 2010)

JD(NY)–22–10
New Haven, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
THE SOUTHERN NEW ENGLAND TELEPHONE
COMPANY d/b/a AT&T CONNECTICUT, A
WHOLLY OWNED SUBSIDIARY OF AT&T
and Case No. 34-CA-12451
COMMUNICATION WORKERS OF AMERICA
Ashok Bodke, Esq., for the General Counsel.
Gabrielle Semel, Esq. and Josh Pomeranz, Esq.,
for the Charging Party.
George O’Brien, Esq. (Littler Mendelson PC) and
David Vegliante, Esq., for the Respondent.
DECISION
Statement of the Case
Steven Fish, Administrative Law Judge: Pursuant to charges filed by the Communication
Workers of America, herein called the Union or Charging Party, in Case No. 34-CA-12451, the
Director for Region 34 issued a complaint and notice of hearing on November 30, 20091 alleging
that The Southern New England Telephone Company d/b/a AT&T Connecticut, a wholly owned
subsidiary of AT&T, herein called the Respondent or AT&T, violated Sections 8(a)(1) and (3) of
the Act.
The trial with respect to the allegations in said complaint was held before me in Hartford,
Connecticut on February 3 and 4, 2010. Briefs have been filed and have been carefully
considered. Based upon the entire record, including my observation of the demeanor of the
witnesses, I note the following:
Findings of Fact
I. Jurisdiction and Labor Organization
Respondent is a corporation with an office and place of business in New Haven,
Connecticut, as well as numerous other locations throughout the state of Connecticut, where it
is engaged in the business of providing telecommunication services. During the 12-month
period ending in October 31, 2009, Respondent derived gross revenues in excess of $100,000

1 All dates hereafter are in 2009, unless otherwise indicated.
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and received at its New Haven facility goods valued in excess of $5000 from points located
outside the state of Connecticut.
It is also admitted, and I so find, that Respondent is and has been an employer engaged
in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
It is admitted, and I so find, that the Union is and has been a labor organization within
the meaning of Section 2(5) of the Act.
II. Background
The Union has represented employees of Respondent in a unit of employees employed
in the state of Connecticut in various classifications. The unit consists of approximately 3800
employees. Approximately 1000 of these employees are customer-facing employees, i.e. they
interact directly with customers at their homes or at businesses or while the employees are
performing repairs on Respondent’s equipment, such as poles, wires or other items in the
street.
The last collective bargaining agreement between the parties expired on April 4.
Negotiations for a new contract began in February, and no agreement has been reached.
III. The Union’s Public Campaign
The Union was dissatisfied with the progress of negotiations and felt that Respondent
was taking a “hard line in these negotiations.” The Union also believed that Respondent was
“mistreating its employees.”
Therefore, the Union decided to organize a number of “mobilization” activities to notify
the public of how the Union believed that Respondent was mistreating its employees and
hindering negotiations, and to let Respondent know that the Union had the support of its
employees.
The mobilization campaign consisted of a number of events, including rallies2, handing
out stickers and leaflets, television ads, as well as having employees wear t-shirts with different
messages appearing on them at various events, such as football games, tennis events, press
conferences, American Idol try-outs and a Rockettes baseball game. Employees also engaged
in various acts of concerted conduct at Respondent’s facilities during 2009. Some of these
activities included: employees wearing red shirts on Tuesdays and Thursdays; flying red and
black balloons; baggies hung on cubicles with peanuts in them and fliers attached saying, “We
Are Working for Peanuts,” “AT&T is Offering Us Peanuts” or “Working for Peanuts”; employees
standing up on the hour wearing Union t-shirts to show solidarity; passing out bubble gum with
fliers reading “AT&T Proposals Blow”; employees having tattoos on their wrists stating “Will
Strike if Provoked, CWA Local 1298”; distributing fliers stating “CWA Local 1298 Willing to Walk
for Healthcare”; an activity characterized as “Shake, Rattle and Roll” day, where employees
would put pennies in empty bottles and stand at their desks and shake the bottles; and
distribute leaflets saying “CWA Local 1298 Shake, Rattle or Walk, No Contract, No Peace.”

2 At one of these rallies, the Union was able to obtain the presence of the Secretary of State
and the Attorney General of Connecticut. During the rally, the Union accused Respondent of
being a difficult employer, stifling employees’ free speech and ignoring the grievance procedure.
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It is undisputed that no employees were disciplined for engaging in any of the above
concerted activities, and that Respondent did not tell any of its employees not to engage in such
conduct.
IV. The HAVOC and SCAB Shirts
As part of the above described mobilization campaign, the Union distributed several t-
shirts to its members. One of the shirts on the front reads “Stewards Army CWA Local 1298”
and on the back are the letters “H.A.V.O.C.”, plus the wording, “Mobilization Across the Nation.”
The letters HAVOC stand for “Have A Voice Over the Contract.” Another such shirt has the
CWA logo on the front and on the back includes the words “Scabs Will Pay” with a skull and
cross bones in between the words “Scabs” and “Will Pay.” Employees wore these t-shirts both
inside the facilities and while dealing face to face with customers without any problems from
management until September 17, 2009.
On that date, employee Richard Lorenzo was wearing the HAVOC shirt and Steve
Simon was wearing the Scab shirt. They were working together and were at Respondent’s
North Franklin facility. They were at the facility to pick-up some equipment before going out on
their job of turning-up TV service. They were approached by John Buxton, a supervisor of
management construction, but who is not a direct supervisor of either Lorenzo or Simon.
Buxton informed Lorenzo and Simon that he found their t-shirts to be offensive and told
them to change their shirts. They informed Buxton that they did not have any shirts with them to
change into. Buxton then ordered the employees to leave the facility until he communicated with
their direct supervisor. Sometime later in the morning, the employees spoke to LeeAnn
Gamache, their supervisor, on the phone. She informed them that they must remove the shirts
and go home to change shirts on their own time. She stated that the shirts were inappropriate.
Both employees told Gamache that they had worn these shirts in the past and there had been
no problem with any supervisors. Indeed, both Simon and Lorenzo had worn these shirts on
numerous occasions over the past year, and were seen by numerous supervisors without any
indication from such supervisors that the shirts were inappropriate or offensive. Gamache
responded that since Buxton had found the shirts to be “offensive,” then employees must
remove them or be suspended for three days. Both Simon and Lorenzo decided to go home and
use 4 hours of vacation time. Subsequently, grievances were filed by both employees
concerning the incident.
The first step of the grievance involved a meeting with Gamache, Simon and Lorenzo.
The employees complained about being sent home on September 17 since they had worn these
shirts in the past, and further that Gamache had not even seen the shirts that they were
wearing. Gamache replied that Buxton had seen the shirts and found them offensive and that
her boss Mike Imbroglio had actually made the decision to require the employees to change
their shirts or face suspensions. Therefore, Gamache stated that she could not reverse the
decision and grant the employees the four hours time lost that they were seeking.
The next step in the grievance procedure was a meeting on January 12, 2010. Present
was Simon, Lorenzo, Dave Beaudet and Harold Russo, union stewards, Gamache and
Imbroglio. The grievants and the Union argued that the punishment was unfair since the
employees were never told previously that they could not wear the shirts, and there was nothing
offensive about the shirts. Initially, Imbroglio insisted that the shirts were “inappropriate attire,”
but made no response to the employees’ argument that they had worn the shirts before without
being told that they were inappropriate or offensive. After some back and forth, Imbroglio said
that since the employees had worked for Respondent for many years, rather than waste time,
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money and effort over four hours, Respondent would agree to give the employee back their four
hours. The grievance was settled on that basis, and a written settlement was signed by
Imbroglio and Beaudet on January 12, 2010. Imbroglio did not inform the employees or the
Union that Respondent had changed its position that the shirts were offensive or inappropriate.
Nor did Imbroglio say anything about whether or not the employees could wear these shirts in
the future.
In fact, both Simon and Lorenzo continued to wear the t-shirts on several occasions
subsequent to January 2010 without any problems from supervisors.
However, a few days after being told to remove the shirts in September, Simon
participated in a conference call with Gamache and other employees. Gamache instructed the
employees that employees would not be allowed to wear the HAVOC shirts, the Scab shirts or
the Prisoner shirts.3 Gamache added that if employees wear such shirts, they would be required
to go home on their own time, change the shirts or face a three-day suspension.
Additionally, in December 2009, there was a meeting of union officials and
representatives of Respondent. Present was Charles Borchert, union business agent, Buxton
and Edgardo Saavedra, Respondent’s Director of Core Installation and Maintenance.
Respondent’s representatives were showing a PowerPoint presentation about Respondent’s
“code of conduct” and “team expectations.” Borchert, upon seeing certain portions of the
presentation, asked Buxton if that meant that “we can’t wear ‘HAVOC’ or ‘Scab’ t-shirts.” Buxton
responded “Yes, you cannot wear those shirts.” Saavedra added that “until the Board charges
are over that they couldn’t wear the shirts.”4
V. The Prisoner Shirts
In early August, the Union’s mobilization committee designed t-shirts, hereinafter
referred to as the “prisoner shirt,” to be distributed to and worn by employees. These shirts were
white with black lettering. On the front of the shirt was the word “INMATE” # with a black box
underneath it. On the back of the shirt, there were some vertical stripes and bars surrounding
the following words: PRISONER OF AT$T. The purpose of the shirts, according to Union
witnesses, Bill Henderson, Union President and Borchert was to protest the employees’
treatment by Respondent, to prove to Respondent that the employees felt that way and to hope
that members of the public might be sympathetic to the employees and to ask Respondent why
they are mistreating its employees.
When designing the shirt, initially it had prison stripes on it like an old-fashioned prisoner
uniform. The Union representatives decided that it “looked too realistic” and that they “toned it
down” so as not to make it look like a real prisoner shirt.
The Union representatives testified that they did not discuss whether the shirts might
lead customers to believe that the employees were actually prisoners or that customers might
be afraid to let the employees in, or if they were wearing these shirts the customers would be
frightened. The Union witnesses point out that employees are required to display identification
badges on a lanyard or on their belt, and there would be a company truck parked in the vicinity.

3 The Prisoner shirt will be discussed below.
4 The Board charges were filed in September and the compliant issued on November 30.
The complaint alleges unlawful conduct by Respondent concerning the HAVOC and Scab
shirts, as well as the “Prisoner Shirts” to be discussed infra.
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Further, when technicians come to homes, an appointment has been made and the technicians
call the customer to confirm that the technician would be visiting the home or the business.
According to Borchert, in view of the above facts, “You’d have to be an idiot to think that there
was a prisoner at your front door.”
Additionally, the shirt did not contain the name of the Union on it. According to Borchert
and Henderson, this omission was not intentional but an oversight. In this connection, the
evidence discloses that these shirts were worn by Union members from August on, at numerous
events and union demonstrations where the public was present, including a tennis tournament
in New Haven, on a night when Respondent was a corporate sponsor. At this event, as well as
others, such as minor league baseball games and University of Connecticut sports events,
employees and Union officials wore these shirts. Frequently, these events would engender local
TV coverage, and Union President Henderson appeared several times on TV and in
newspapers wearing the prisoner shirt, and complaining how employees were treated by
Respondent.
The Union distributed 4000 of the prisoner shirts, and decided that employees would
wear them at work on August 12.
On that day, John Vaitkus, who works out of Respondent’s central office in Torrington,
Connecticut, wore the prisoner t-shirt. Vaitkus, who is chief steward, does not interact with the
public in his position, nor is the public allowed into the facility where he works. His supervisor,
Gerald Bell, saw the shirt, chuckled, but said nothing to Vaitkus about the shirt. Vaitkus wore the
shirt that day at the garage without incident. Later, during that day, Vaitkus went to the
Waterbury garage on union business. The public is not permitted to enter this facility. Vaitkus
met with Mario Padres, the union steward at that facility, and supervisor Ron Ashe. Ashe told
Vaitkus that he didn’t like the shirt and found it offensive and derogatory towards the
corporation. Ashe then said “I would like you to…” and Vaitkus interrupted Ashe before he
completed saying what he would like Vaitkus to do. Vaitkus said to Ashe that there was nothing
wrong with the shirt, and he was not removing it. Vaitkus did not remove the shirt and continued
to wear it for the rest of the day. He was not disciplined by Respondent for wearing the shirt on
August 12.
John Micelli is a cable repair technician working out of the Norwalk garage. He spends
from 15% to 20% of his time inside customer’s homes. Micelli wore the prisoner shirt on August
12. Micelli was in a group of 4 other employees, who were wearing the shirts, when they were
approached by supervisor Mike Kerner. Kerner told the group that he did not know if it was
appropriate for employees to wear the shirts and that employees should probably change them.
None of the employees responded and none of them removed their shirts. Kerner instructed the
employees to pick-up their jobs and go to work, and they did so.
At 9:15 a.m., as Micelli was on his way to his first job, he received a call from supervisor
Robert Blackwell. Blackwell asked Micelli if he was wearing the prisoner shirt. Micelli answered
yes. Blackwell told Micelli to remove the shirt or go home on his own time and change shirts.
Micelli replied that he wasn’t going to do that. Blackwell ordered Micelli to return to the garage
and that he was going to be suspended. Micelli asked Blackwell why he could not wear the shirt.
Blackwell replied that it was “offensive.” Micelli returned to the garage as instructed. Blackwell
informed Micelli, as well as several other employees present, who also had worn the shirts that
day and had refused to remove them, that he (Blackwell) had been instructed to suspend the
employees for the day and to send them home because the t-shirts were “offensive.”
Micelli received a letter from Respondent the next day. The suspension letter recounts
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Micelli’s refusal to remove the shirt deemed by Respondent not to be appropriate “for an AT&T
employee to be wearing at a customer’s premise.” The reason for the action was stated to be
“insubordination.”
Micelli has not worn the prisoner shirt since that day.
A total of 20 employees, including Micelli, were suspended for insubordination on August
12 for their failure to remove the prisoner t-shirts despite being ordered to do so by
Respondent’s supervisors.
Stephen Simon wore the prisoner shirt on August 12 along with half a dozen other
employees at the New London garage. He wore the shirt while at the facility, where he was
engaged in day-long training. Simon received a phone call from his supervisor, Chris Ainley, in
the late morning or early afternoon. Ainley asked Simon if he was wearing the prisoner shirt,
and if so, he should remove it. Simon responded that he was wearing the shirt, but he had it on
over another shirt and that he would remove the prisoner shirt. Simon removed the shirt as
instructed and has not worn that shirt since August 12.
A day or two later, Simon and Lorenzo participated in a conference call with Gamache,
along with several other technicians. Gamache told the employees that they could no longer
wear the prisoner shirt, and would be subject to discipline if they did. She added that
Respondent considers the shirt inappropriate. Simon asked for a definition of inappropriate.
Gamache replied that she would get back to employees on that issue. She never did so.
Mark Fauxbel is a technician working out of the Willimantic, Connecticut garage. He also
spends 10% to 20% of time in face to face contact with customers. Fauxbel wore the prisoner
shirt on August 12. His supervisor was on vacation on that date. When Fauxbel arrived at his
first job, he removed the prisoner shirt because at the job that he was doing, he “was going to
get really dirty.” While on this job, he received a voicemail from Linette Valentine, a supervisor,
who was filling in for Fauxbel’s supervisor. The voicemail stated that some employees had worn
the prisoner t-shirt on that day and had been disciplined. The voicemail added that if anyone
was wearing the prisoner t-shirt, they needed to take it off.
Later in the day, Fauxbel telephoned Valentine in his capacity as chief steward.
Valentine informed him that the shirt did not reflect the company’s image real well, and the
supervisors had been informed to tell everybody to take the shirts off.
Subsequently, on the same day, Fauxbel received a voicemail from Buxton. This
voicemail stated that employees should not be wearing the prisoner shirts because it was
against the code of business conduct. The voicemail continued that if anyone was caught
wearing the shirt, they would be sent home. If employees refused to take the shirts off, they
would be suspended.
Fauxbel did not put the shirt back on that day, and wore it on only one other occasion at
work on September 10. On that day, he was at the garage for a safety meeting. His supervisor
told Fauxbel to remove it before he went out on a job. Fauxbel had worn another shirt under the
prisoner shirt anticipating the directive, so he removed the shirt before leaving the garage.
Fauxbel was not disciplined for wearing the shirt on August 12 or September 10.
On September 8, Vaitkus wore the prisoner shirt at work, and was not disciplined or
spoken to about it by any supervisor on that day. On that same day, however, a large number of
employees wore the prisoner t-shirts. During that day, employees were instructed to remove the
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shirts or face suspension. Approximately 163 employees refused to remove the shirts and were
suspended for one day.
On September 10 or 11, Vaitkus was informed by his supervisor, Gerald Bell, that he
(Bell) had received an email from Labor Relations stating that no employee should be wearing
the prisoner t-shirt when they were on the clock, and if they did wear the shirt, they would be
suspended for three days.
In fact, the email, which was sent by Debbie MacDonald, the Director of Labor Relations,
to various supervisors on September 8, refers only to “customer facing employees,” and states
that employees who refused to remove “inappropriate attire” “were suspended for one day” and
that “based on today’s impact to customer service, the length of suspension for a first
occurrence of refusal to remove inappropriate attire will be increased to three days. The Union
has been notified of the change, which will take place effective September 9, 2009. Employees
who repeat occurrences will be subject to more serious discipline up to and including dismissal.”
Also, on September 8, Kevin Zupkus, Vice President of Labor Relations, sent the
following email to Dennis Trainor, Executive Vice President of the Union: “I just left you a
message on your cell phone… This message is to inform you that the discipline the company
will impose will be changed to a 3-day suspension for future occurrences of refusing to remove
inappropriate attire. Repeated occurrence will lead to increased discipline up to and including
dismissal. As I mentioned this was necessitated by the adverse customer impact of today’s
events.”
After receiving a copy of the above cited email from Zupkus to Trainor, Henderson
discussed the issue briefly with Zupkus at a bargaining session. Henderson told Zupkus that he
thought it was unfair for Respondent to discipline employees who work on the outside for
wearing the prisoner shirts but not those who wear it inside. Zupkus responded that he stood by
Respondent’s position that there would be a three-day suspension for wearing the shirt for
“refusing to wear appropriate attire.” Zupkus did not explain to Henderson the reason for its
distinction between inside and outside employees. Nor did Zupkus explain why it viewed the
prisoner t-shirts to be “inappropriate attire.”
Respondent presented two witnesses concerning Respondent’s decision to ban the
prisoner t-shirts (for customer facing employees), and its general policy concerning appropriate
attire. John Nasznic is employed as the lead labor manager in the labor relations department.
He has been employed by Respondent for 23 years, including various bargaining unit and
supervisory positions. He has been employed in the Labor Relations Department since 2001.
The Director of the Labor Relations Department is as reflected above Debbie MacDonald. Other
labor relations officials included Kevin Zupkus, Vice President, Bob McCorkle and Kathleen
Larson.
Nasznic testified that Respondent’s technicians are divided into two groups. The
Consumer Group, headed by Edgardo Saavedra, includes installation repair technicians and
cable repair network delivery technicians. These employees install and repair customer lines at
residences and businesses. The other group is the Construction Group, headed by John
Amdrasik, which comprises network deployment technicians, who set poles, hang cables and
work in manholes. Both groups of employees were classified under the Network Services
Umbrella. These groups are the only “customer facing” employees and who were the ones
disciplined for wearing the prisoner shirts. Other employees, who were not customer facing,
such as employees at call centers and other internal building operations were allowed to, and
did wear the prisoner t-shirts without being disciplined or told not to wear these shirts by
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supervisors.
Nasznic testified further that the network service group, which generally refers to
employees, who face the public, is subject to the “Network Services Team Expectations.” This
document is reviewed with employees when they are hired and is updated yearly. Employees
are expected to review the updated document yearly. The introduction section of this document
provides that one of its goals is to “maintain a strong, positive corporate image.” Under the
professionalism expectations, there is a section on appearance, which reads as follows:
 Present a professional appearance at all times. Employees
must be neat and well groomed. Appearance should be
appropriate for the environment in which the employee works, in
keeping with the job assignment, and consistent with what is
acceptable for employees in other similar type business
establishments. Also, dress and grooming should at all times be
consistent with sound safety practices applicable to each job. To
achieve a professional appearance, here are some examples of
the basic expectations:
1) Good personal grooming – includes clean shaven every
day. Beards, mustaches and hair should be maintained consistent
with what is acceptable for employees in other similar type
business establishments.
2) Clothing which is in good condition, clean, and safe for
work the employee is performing.
3) No clothing with printing and logos that are unprofessional
or will jeopardize our Company’s reputation.
4) No clothing or hats which have the logo of a retail
competitor on them.
5) No muscle or tank top shirts or other types of clothing
which are not appropriate for the environment in which the
employee works or which create a potential safety hazard.
6) No jewelry, body piercing or visible body markings which
may be offensive to customers.
Nasznic testified that the technician in the field is the “first line of interface with the
customer” and the “face of the company.”
On August 12, Nasznic testified that he first become aware of the prisoner shirt when he
received calls from Robert Secondi, an area manager at New Haven Gateway. Secondi
informed Nasznic that technicians were wearing t-shirts with the word “inmate” on the front and
on the back it said “Prisoner of AT$T.” Secondi told Naszmic that he felt that employees should
not be allowed to leave the garage with these shirts on because of the “public image” of the
company. Secondi added that he was concerned that customers at houses might be “put in
fear” by the words “inmate” and “prisoner” on the shirt and might not let the technician in.
Secondi did not tell Nasznic nor did Nasznic ask whether any technicians had gone to a job
wearing these shirts.
Nasznic told Secondi to hold off taking any action and not to say anything about the
shirts until he hears from Nasznic. Nasznic then spoke to MacDonald, who was at the time in a
meeting with other labor relation officials, Zupkus, McCorkle, Larson, plus David Vegliante in
house counsel. MacDonald and the group were aware of the issue, as other managers had
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made calls similar to that of Secondi. Nasznic reported what Secondi had said and expressed
his own views to MacDonald and to the group that he felt the shirts were inappropriate, would
create a poor customer image for the company and would create a little bit of nervousness or
fear by the customer. He also discussed the insubordination issue as well as what action should
be taken. Thus, he mentioned a “no win” situation in that if Respondent suspended employees
for insubordination if they refused to take off the shirts, that would result in missed commitments
and possible overtime. Nasznic could not recall what was said by the other members of the
group or by MacDonald, other than that no one there said that they felt the shirts were
appropriate to be worn. Nasznic left the meeting and would return to report additional calls from
supervisors requesting guidance or what to do regarding the shirts. During these reports by
Nasznic, he would be “in and out” of the meeting, and he admitted that he did not recall what if
anything was said by the participants in the meeting as to why they felt the shirts were
inappropriate.
Shortly before 9:00 a.m., MacDonald informed Nasznic that a decision had been made
that employees in customer facing positions would not be allowed to wear the shirts. They were
to be given the option of changing the shirt, turning it inside out, going home on their time to
change and return to work or if they refuse, they would be guilty of insubordination and
suspended for a day.
Nasznic testified that another concern that he had about the shirts was that he feared
that customers might believe that Respondent hired prison inmates or have a work release type
of program. However, he did not express this concern to MacDonald or to the group of labor
relations officials discussing the issue.
After Respondent’s decision was made and communicated to managers and to the
Union, Nasznic received a call from Kitty Caulkins, Manager of the Engineering Department,
which are not customer facing employees. Caulkins told Nasznic that employees in her
department were wearing the t-shirts. She was concerned about it and wanted to take some
action. Nasznic instructed Caulkins not to take any action since Respondent’s position was that
only employees in customer facing positions would be prohibited from wearing the shirts.
On September 8, employees wore the prisoner t-shirts on a larger scale. On this date,
when Nasznic received calls from managers, the decision had already been made on August
12, so the same action was taken and communicated to the supervisors. As related above,
Respondent communicated to the Union and to managers, later on that day, that any future
insubordination with regard to the prisoner t-shirts for customer facing employees would result in
a three-day suspension.
Nasznic also testified that at one point, employee John Collins, who worked in a central
office and non-customer facing position, was docked 1 ½ hours for wearing the prisoner t-shirt.
However, this decision, by the supervisor involved, was overturned at a step one grievance by
area manager Dick Murchison.
Borchert testified that he spoke to Ray Kurmen, a splicer who worked at the Meriden
garage. Kurmen informed Borchert that he had been allowed to leave the garage on August 12
wearing the prisoner t-shirt, and that he wore it all day and that his manager had seen him
wearing the shirt. Borchert also testified that several other technicians from the Hartford and
Meriden garages told him that they also had worn the shirts all day, and that managers had
seen them wearing the shirts. Additionally, Coffin informed Borchert that technicians from the
Danbury, Waterbury, Stratford and Norwack garages had told Coffin that they had also been
allowed to leave the garage wearing the prisoner shirts.
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Additionally, Pat Telesco, a staff representative for the Union, had several conversations
with Zupkus concerning the prisoner shirts. Telesco asked why Respondent had disciplined
employees for wearing these shirts. Zupkus replied to Telesco, “You’re ruining AT&T’s image.”
Saavedra, the Director of Core Installation and Repair for Connecticut, was
Respondent’s other witness. He is a long-time employee of Respondent, and in his current
position he is in charge of the technicians, who have the most face to face contact with
customers.5 Saavedra testified that Respondent tries to protect its “very powerful brand name”
and that it is always trying to “preserve that image.”
On August 12, Saavedra was on vacation in Puerto Rico. However, sometime in the
early morning, he received a call from Rich Kreuzer, a supervisor, who was filling in for
Saavedra while the latter was on vacation. Kreuzer informed Saavedra that some technicians
were wearing shirts that had the word “INMATE” on the front with a box underneath and on the
back stripes with the words “AT&T with a dollar sign.” Saavedra said to Kreuzer here “is my two
cents” if anybody asks. Saavedra told Kreuzer that in his opinion the technicians “can’t be
allowed to go out with these shirts to the public.” Saavedra explained to Kreuzer that he was
concerned about the image of a customer opening a door and seeing the shirt with the words
inmate on it. Saavedra added “I don’t want to take any chance of having a situation where, like,
you could get a little old lady…or a single parent with a child in a house, a little old lady, whether
its one or ten people reacting to this, and I just don’t want to take a chance of something like
that hit the news. I was concerned about the potential impact.”
Saavedra continued as follows:
“I mean, you know, I – I always think about – but that’s the
scenario, that’s the first thing that just came to my mind, you
know, is the customer going to say, you know, “Is this a unique
program that the Company has? That – you know, we get all kinds
of programs involved in the community that we’re hiring, you
know, literally ex-cons to work in the Company.
I mean, people don’t know, people are not aware of the
Union/Management relations going on and – and can’t believe,
you know, perceive what anyone opening a door is going to say
do but you got to – you got to try to do your best to protect that
image and protect our revenue base, you know. Losing one
customer would be bad enough but then the word starts getting
out and a lot of customers don’t – may not tell you nothing but
they’ll talk to their neighbors and next thing you know and they
start building an aura around what the Company may or may not
be doing when they don’t have the facts. So that’s the kind of stuff
that I was thinking about when I was giving some feedback to
Kreuzer.”
Kreuzer told Saavedra that he escalated the issue to Saavedra’s boss6, Cindy Buxton,

5 He is in charge of approximately 850 technicians.
6 Buxton’s title is not clear from the record. However, it is clear that she is stationed in
Detroit and that the high level officials of Respondent report to her.
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and to “Labor.” Saavedra said to Kreuzer that he (Kreuzer) understood Saavedra’s position, and
to let him know what happens. Kreuzer did not testify, and there is no record evidence as to
whether Kreuzer relayed Saavedra’s concerns or position about the shirts to Buxton or to
anyone else.
According to Saavedra, Kreuzer did not inform him nor did he ask whether any
technicians had gone out wearing the shirts on that day. When Saavedra returned from
vacation, he found out from Kreuzer, as well as from seeing emails, Respondent’s decision
concerning the shirts, and the fact that some technicians were suspended for insubordination.
He also had a conversation with Buxton, who by that time had been sent an actual shirt by
Kreuzer. Buxton told Saavedra that “We can’t allow this type of stuff” and that the shirts were
“inappropriate.” According to Saavedra, since Buxton is the “big boss,” she should have
ultimately made the decision on this issue or at least been consulted about it by Labor Relations
and other representatives of Respondent.
Saavedra also testified that he was concerned about the Cheshire issue, referring to a
home invasion case in Cheshire when several people were murdered during a home invasion,
and that was in the news at the time. Saavedra believed that in view of that issue “You never
know, why risk it…why take a chance.” He did not testify that he expressed that concern to
Kreuzer in this discussion on August 12.
Saavedra also admitted that the ongoing labor negotiations between Respondent and
the Union was commonly known to the public, and that anyone who reads the newspaper or
watches TV in Connecticut would have been aware prior to August 12 of the labor dispute
between the Union and Respondent “with all of the events going on.”
Saavedra also admitted that Respondent received no complaints from any customers
concerning the wearing of the prisoner shirts at any time.
Finally, Saavedra testified that grievances were filed by the Union concerning both the
August and September suspensions, and that the parties agreed to stay the grievances pending
resolution of the Board trial.
VI. Respondent’s Practice with regard to Other Shirts
Employees Simon, Micelli and Fauxbel testified that they had worn t-shirts on numerous
occasions with what one could consider questionable or offensive content, had been seen by
supervisors wearing such shirts and had received no adverse comments about their shirts or
any instructions by supervisors to remove them.
These shirts include the following language: “Support Your Local Hookers” (employee
Simon wore 25 times in the last 3 years in presence of supervisors Tom Beebe and Bill
Lechner); “The Liver is Evil and Must be Destroyed” (worn 50 times by Simon in the last five
years, seen by Beebe and other supervisors, such as Chris Mordecai and Bob Pia); “It’s All
about the Booty” (worn by Micelli countless times since 2006); “Your IQ Came Back Negative”
(worn over 20 times by Micelli); “I’m Not Drunk. I’m just a Race Fan” (worn by Fauxbel about 40
times); “If I Want Your Opinion I’ll Take the Tape Off Your Mouth” (Fauxbel wore shirt 10-15
times, seen by supervisor Ed Miller, who chuckled but did not ask Fauxbel to remove it) “Out of
Beer, Life is Crap” (also worn by Fauxbel 5 or 6 times in presence of Miller).
These employees testified that not only were they not spoken to by supervisors about
these shirts, but that they were not told anything by supervisors about attire in general, other
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than to be neat and clean and not wear clothing with sexual innuendos (Simon), not to wear
shorts and to wear long-sleeve shirts while climbing poles (Micelli).
Nasznic testified that he was not aware of any employee being disciplined for
inappropriate attire other than the employees at issue here. During the ten years that he has
been in labor relations, he could not recall any employee being disciplined for wearing an
inappropriate shirt. Nasznic did recall an incident “a few years ago” where a manager informed
him that he had seen an employee wearing what the manager considered to be a “vulgar” t-shirt
at a job site. 7 The supervisor told the employee to turn the shirt inside out and the employee
complied with the supervisor’s instruction. Thus, the employee was not disciplined. Nasznic also
recalled that he discussed the appropriateness of attire with an employee in around the year
2000. At that time, he spoke to employees about torn or dirty pants, wearing pants too low or
wearing “do rags.” He informed the employee to remove the “do rags” and he complied.
Saavedra testified that he attended training sessions with managers where the subject of
appropriate attire was discussed. He recalled that examples of attire that would be offensive to
customers were mentioned, such as earrings, tongue rings and t-shirts.
Saavedra was shown several of the shirts worn by employees and discussed above,
such as the “Out of Beer, Life is Crap” shirt. Saavedra testified that he considered that shirt to
be inappropriate and if he saw it, he would have counseled the technician and/or the supervisor
about wearing such a shirt. Saavedra recalled one prior incident where an employee was
suspended for failing to remove a tongue earring, and another, where an employee was advised
to and did remove a hoop earring after Saavedra complained to the technician’s supervisor
about it.
VII. Analysis and Conclusions
It is undisputed and well settled that employees have a protected right to make known
their concerns and grievances pertaining to the employment relationship, which includes the
wearing of union insignia while at work. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-
803 (1945); Komatsu America Corp., 342 NLRB 649, 650 (2004).
However, it is equally well settled that these Section 7 rights may give way when “special
circumstances” override the employees’ Section 7 rights and legitimatize the regulation of such
apparel. Komatsu America, supra; Bell-Atlantic-Pennsylvania, 339 NLRB 1084, 1086 (2003),
enfd. 99 Fed Appx. 233 (DC Cir. 2004). The Board has found special circumstances justifying
proscription of union insignia when their display may jeopardize employee safety, damage
machinery or product, exacerbate employee dissension or unreasonably interfere with a public
image that the employer has established as part of its business through appearance rules of its
employees, or when necessary to maintain decorum and discipline among employees. Komatsu
America, supra; Nordstrom Inc., 264 NLRB 698, 700 (1982); Southwestern Bell, 200 NLRB 667,
669-670 (1972) (permitting employers to ban sweatshirt criticizing the employer in an obscene
manner).
In assessing whether “special circumstances” has been established by an employer
sufficient to permit the regulation of the particular attire, it is clear that employee contact with
customers does, not standing alone, justify an employer prohibiting the wearing of union
insignia. Nordstrom, supra at 700; Virginia Electric & Power Co., 260 NLRB 408 (1982); Floridan

7 The shirt read “Fuck Milk.”
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Hotel of Tampa, 137 NLRB 1484, 1490 (1961), enfd. as modified on other grounds 318 F.2d
545 (5th Cir. 1963). However, contact with customers is a relevant factor to be weighed in
balancing the potentially conflicting interests of an employee’s right to display union insignia and
an employer’s right to limit or prohibit such display. Nordstrom, supra; Pathmark Stores Inc., 342
NLRB 378, 379-381 (2004) (Board finds special circumstances established by concluding that
message on shirts of “Don’t Cheat About the Meat” reasonably could lead employer’s customers
to believe that employer was “cheating” its customers).
I have found above that Respondent, by Buxton and then by Gamache, ordered Simon
and Lorenzo to remove the HAVOC and Scab t-shirts that they were wearing or go home on
their own time to change. They refused and took 4 hours of vacation time.
It is unnecessary to analyze under “special circumstances” principles Respondent’s
conduct with regard to Simon and Lorenzo and the HAVOC and Scab t-shirts. Respondent
concedes, as it should, that its action violated the rights of Lorenzo and Simon to wear these
shirts. However, Respondent argues that Buxton’s actions regarding these employees “were not
authorized by the Company and did not coincide with the policy that the Company adopted
concerning the inmate shirts or the practice it had consistently followed of accepting union
insignia and mobilization in the work place.”
Respondent also points out that the employees were made whole for their loss of four
hours of vacation time during the grievance procedure. Therefore, Respondent contends that its
conduct in this regard is “too isolated and de minimis to warrant the issuance of a remedial
order.” I disagree.
Respondent’s contention that Buxton’s conduct with regard to Simon and Lorenzo “was
not authorized by” Respondent is simply not consistent with the facts in the record. These facts
establish that Respondent’s actions with respect to these employees were authorized by and
consistent with Respondent’s position at that time. Buxton initially informed the employees that
he felt that the HAVOC and Scab shirts were “offensive,” and that they should not leave the
facility until they heard from their supervisor. In fact, their supervisor, Gamache, communicated
to the employees the decision made by her supervisor, Imbroglio, that the shirts were
“inappropriate.” It was a decision of Imbroglio through Gamache that the employees must
remove the shirts, go home on their own time and change or face a three-day suspension.
Further, this decision by Imbroglio is consistent with the email sent by MacDonald to
various supervisors and labor relations officials on September 8. While the memo was issued on
the day of the banning of the prisoner shirts, the memo made no references to which shirts were
subject to bans in the future. The memo referred only to “inappropriate attire” without specifying
which shirts would be considered “inappropriate attire.” Thus, it appears that Imbroglio, Buxton
and Gamache interpreted “inappropriate attire” as including the HAVOC and Scab shirts, a
position that Respondent has never expressly disavowed except in this proceeding.
Notably, Gamache in a conference call with employees several days later reaffirmed
Respondent’s position that HAVOC and Scab shirts are included as “inappropriate attire,” and
that employees could face a three-day suspension if they wear such shirts in the future and
refuse to remove them.8

8 I note again that Gamache’s statement to employees is consistent with the September 8
email from MacDonald to Respondent’s officials.
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Furthermore, in December, Union representative Borchert was told by both Buxton and
Saavedra that the HAVOC and Scab shirts cannot be worn until the Board charges are
resolved.9
Respondent’s reliance on the fact that the employees were given back the four hours
time that they lost as a result of the grievance procedure is misplaced.
During both the first and second steps of the grievance procedure, Respondent
continued to assert by Gamache and Imbroglio its position that the shirts were offensive and/or
inappropriate and that Respondent was within its rights to ban them. Finally, at the second step
after some back and forth discussion, Imbroglio relented and stated that since the employees
had worked for Respondent for many years rather than waste time, money and effort,
Respondent would agree to give the employees back their four hours. Significantly, Imbroglio
did not change or disavow Respondent’s position or Imbroglio’s own statement that the shirts
were offensive or inappropriate. Nor did he inform the employees that they could wear the shirts
again without facing further discipline. Also, Respondent never informed the employees or the
Union that employees are permitted to wear the HAVOC or Scab t-shirts.
In these circumstances, Respondent has fallen far short of meeting its burden under
Passavant Memorial Hospital, 237 NLRB 138 (1978) of establishing an effective repudiation of
its conduct. The grievance resolution was not timely, Douglas Division, Scott & Fetzer
Company, 228 NLRB 1016, 1029 (1977), did not admit wrongdoing Passavant, supra at 139,
did not inform any of its employees that they could wear the t-shirts involved, Boise Cascade
Corp., 300 NLRB 80, 83 (1990), and did not assure its employees that in the future that
Respondent would not interfere with the exercise of their Section 7 rights. Boise Cascade,
supra; Passavant, supra; Harrah’s Club, 150 NLRB 1702, 1717 (1965).
It is therefore not appropriate to dismiss these allegations on the grounds that they are
“de minimis.” Regency at the Rodeway Inn, 255 NLRB 961, 962 (1981) (single interrogation of
one employee not “de minimis”), particularly where as here the unlawful prohibition was
communicated to the Union as well as to employees other than Simon and Lorenzo in
Gamache’s conference call.
Accordingly, I conclude that Respondent by ordering the employees to remove the
HAVOC and Scab shirts, and threatening them with suspension if they did not comply or go
home and change on their own time and forcing them to take four hours of vacation time have
violated Sections 8(a)(1) and (3) of the Act. Golub Corp., 338 NLRB 515, 516 (2002); Boise
Cascade, supra; Caterpillar Inc., 322 NLRB 690, 693 (1996); Mid-State Telephone Corp., 262
NLRB 1291, 1292 (1982), enfd. denied 706 F.2d 401, 403-404 (2nd Cir. 1983); Southern
California Edison Co., 274 NLRB 1121 fn.2, 1123-1125 (1985); Eckerd’s Market, 183 NLRB
337, 338 (1970).
Turning to Respondent’s conduct with respect to the “prisoner” shirts, it is undisputed
that on August 12 and September 8, Respondent ordered employees to remove or change
these shirts and that it issued a one-day suspension to a number of employees, who refused
Respondent’s instructions in this regard.
As detailed above, the employees involved in wearing these shirts were engaged in
protected concerted activities. Thus, there is a presumption that Respondent cannot lawfully

9 The complaint alleging this conduct to be unlawful was issued on November 30.
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ban the wearing of such shirts unless Respondent establishes the existence of “special
circumstances” sufficient to permit Respondent to forbid its employees from wearing such shirts.
Pathmark Stores, supra.
Respondent does not contest the above findings or statement of the law, but argues that
it has met its burden of establishing “special circumstances” by the testimony of Nasznic and
Saavedra. According to Respondent, this testimony is sufficient to prove that Respondent
banned the prisoner shirts because it believed that the shirts disparaged its public image, would
create nervousness and fear by the customers so that they might be reluctant to let the
technician into their homes and/or would lead customers to believe that Respondent employs
prisoners on a work release program.
However, the record reveals a critical defect in Respondent’s attempt to meet its burden
of proof by the testimony of these witnesses. The facts establish that neither Nasznic nor
Saavedra had any first-hand knowledge of why Respondent decided to ban these shirts. Their
testimony establishes only their opinions as to why they believed the shirts were inappropriate.
There is no evidence in the record that any of the reasons expressed by Saavedra or Nasznic
were relied upon by Respondent when it made its decision to ban the wearing of these shirts.
Saavedra was on vacation at the time that Respondent made its decision in August. Although
Saavedra did express his views to Kreuzer, who was filling in for Saavedra, there is not a
scintilla of evidence that these views were communicated to the decision makers.10
While Nasznic was at work at the time of the decision, his role in this regard was limited.
He did express his views to MacDonald and the other individuals involved in the decision,11 but
there is no evidence that any of these individuals even considered, much less relied on the
concerns expressed by Saavedra or Nasznic in deciding to ban the shirts.
In similar circumstances, the Board has frequently drawn an adverse inference from a
respondent’s failure to call as witnesses the decision makers, particularly in cases such as here,
where the Respondent is attempting to meet its burden of proof by presenting witnesses, who
did not have first-hand knowledge of the facts. Government Employees (IBPO), 327 NLRB 676,
699 (1999) (failure to call decision maker gives rise to adverse inference, where respondent had
burden under Wright Line to establish reasonable belief that discriminatee committed fraud);
DMI Distribution Co., 334 NLRB 409, 413 (2001) (adverse inference appropriate where
respondent failed to call supervisor with first-hand knowledge of alleged misconduct of
discriminatee); Douglas Aircraft, 308 NLRB 1217 fn. 1, 1221 (1992) (failure to call officials of
respondent to provide first-hand account of their purported actions and motives permits an
adverse inference as to its motivation); American Petrofina Company, 247 NLRB 183, 191
(1980) (unexplained failure to call witnesses with first-hand knowledge of alleged wrongdoing by
discriminate leads to adverse inference that if called to testify, they would not have corroborated
testimony of other witnesses of employer); Dorn Transportation Co., 168 NLRB 457, 460 (1967)
(failure of the decision maker to testify “is damaging beyond repair”) This decision was enforced
by the Second Circuit, 405 F.2d 706 at 713 (2nd Cir. 1969), where the Court concluded that
“Dorn’s attitude was critical on the question of the motivation of the discharge and the failure to
call him as a witness on the issue of what the thought of Rogers’ loyalty and attitude towards his

10 Kreuzer did not testify nor did the “decision makers” as detailed below.
11 Kevin Zupkus, Bob McCorkle, Kathleen Larson and David Vegliante. It also appears that
Cindy Buxton, who is stationed in Detroit and is in charge of Respondent’s operations in
Connecticut, either was directly involved in the discussion or approved of the decision made by
labor relations to ban the shirts.
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work permits an adverse inference,” citing the Supreme Court’s decision in Interstate Circuit v.
United States, 306 U.S. 208, 59 S.Ct. 467 at 474 (1939), where the Court observed that “the
production of weak evidence when strong is available can lead to the conclusion that the strong
would have been adverse.”
Here, Respondent failed to call any of the five or six “decision makers”12 or individuals,
who had “first-hand knowledge” of the reasons for Respondent’s decision to ban the prisoner
shirts. Respondent offered no reason why it did not call any of these witnesses, who are
apparently all still employed by Respondent. I find this omission to be inexplicable and
consistent with the precedent cited above leads to an adverse inference, which I find it
appropriate to draw that their testimony would not have supported the testimony of Saavedra
and Nasznic as to Respondent’s reasons for prohibiting the wearing of the shirts.
Rather, I conclude that such testimony would likely establish that Respondent banned
these shirts because it believed that they disparaged Respondent by implying that it mistreated
its employees, and that it did not want its customers to be exposed to this kind of an accusation,
which does not establish “special circumstances” but rather amounts to the prohibition of typical
protected conduct. Borman’s Inc., 254 NLRB 1023, 1024-1025 (1981), enfd. denied 676 F.2d
1138 (6th Cir. 1982) (shirt reading “I’m tired of bustin’ my ass” found by judge and Board to
convey to outsiders that employees of the company believed the “place really stinks”).
Even apart from the adverse inference rule, Respondent is obligated to meet its burden
of establishing “special circumstances” sufficient to overcome the presumption that the prisoner
shirts are protected. That burden is a substantial one13 and simply cannot be met by testimony
of two witnesses, who were not directly involved in the decision. See Albertson’s Inc., 351 NLRB
254, 256-257 (2007) (generalized testimony of labor relations counsel insufficient to establish
“special circumstance” justifying the proscription of union insignia). See also Boise Cascade,
Co., 300 NLRB 80, 81 (1990) (no evidence that decision maker relied on certain evidence
before imposing ban on union insignia).
Therefore, I conclude for these reasons alone that Respondent has fallen short of
meeting its burden of proof that “special circumstances” existed permitting it to ban the
employees’ exercise of protected concerted activity. I need go no further to find, which I do, that
Respondent has violated Section 8(a)(1) and (3) of the Act by ordering its employees to remove
the prisoner shirts on August 12 and September 8, by threatening them with suspension if they
did not comply and by suspending those employees, who failed to comply with Respondent’s
unlawful instruction. Golub Corp., supra; Boise Cascade, supra; Caterpillar Inc., supra; Southern
California Edison, supra.
However, in the event that I am reversed as to my conclusions detailed above, it is
appropriate for me to assess whether Respondent has met its burden of establishing “special
circumstances” assuming that the testimony of Nasznic and Saavedra is deemed sufficient to
establish Respondent’s reasons for banning the shirts.
Respondent makes a number of contentions and arguments in support of its assertion
that it has established “special circumstances” sufficient to ban the prisoner t-shirts. It argues
initially that the shirts make no reference to the Union, which Respondent claims militates

12 As noted above, it is unclear whether Buxton made the decision or merely approved the
recommendations made by MacDonald and the other labor relations representatives.
13 Escanaba Paper Co., 314 NLRB 732, 733 fn.4 (1994), enfd. 73 F.3d 74 (6th Cir. 1995).
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against finding that the wearing of these shirts deserves the protection of the Act. I do not agree.
The evidence establishes that management and supervisory personnel were clearly
aware that the shirts were union-sponsored and related to the labor dispute between
Respondent and the Union, and Respondent does not contend otherwise. Further, press and
television reports, as well as other union events, demonstrate that customers would likely be
aware that the shirts were related to the labor dispute between the Union and Respondent.
Government Employees, 278 NLRB 378, 385 (1986) (armband reading “hostage/striker” held to
be protected and related to message of “solidarity” with union, even in absence of any union
insignia or reference to union); Southern California Edison, supra, 274 NLRB at 1123-1124
(button reading “stick your retro,” protected notwithstanding absence of union identification).
See also Southwestern Bell Telephone, 200 NLRB 667, 669 (1972) (in assessing the lawfulness
of a ban on employees wearing certain shirts, it is immaterial that the shirts did not name the
union since employees may act concertedly for their mutual aid or protection independently and
without a union).
I therefore place little or no significance on the failure of the prisoner shirts to mention
the name of the Union.
Respondent also places significant reliance on the existence of Respondent’s “Team
Expectations” concerning the “corporate image” that a technician is expected to present to the
public. The expectations of professionalism include that no clothing be worn with printing and
logos that are “unprofessional or will jeopardize the Company’s reputation.” It also adds that
their appearance “should be appropriate for the environment in which the employee works.”
Respondent cites Bell-Atlantic-Pennsylvania, 339 NLRB 1084 (2003) and argues that
the facts here are nearly identical. Thus, the employees there, as here, were not required to
wear uniforms but the employer “maintained appearance standards” for its employees,
supervisors were directed to be aware of “disruptive appearance” by employees, including
whether an employee’s appearance “reflects negatively on our corporate image” and employees
are not permitted to wear any garment that has “offensive lettering, words or pictures.”
The Board in evaluating an arbitrator’s award that sustained suspensions of employees,
who refused to remove a particular t-shirt, discussed the “special circumstances” standard. It
observed as follows:
An employer’s concern about the “public image” presented by the
apparel of its employees is, therefore, a legitimate component of
the “special circumstances” standard. And, when determining
whether an employer’s proscription of statutorily protected union
apparel or insignia unreasonably interferes with employees’
Section 7 interests under our decisional case law, there are few
bright-line rules for purposes of determining whether an arbitration
decision is “palpably wrong” under our precedent.” Id at 1086
The Board then reviewed a number of cases14 assessing the existence of special
circumstances, which reached different conclusions albeit involving somewhat similar factual

14 United Parcel Service, 195 NLRB 441 (1972); United Parcel Service, 312 NLRB 596
(1993); St. Luke’s Hospital, 314 NLRB 434 (1994); Noah’s New York Bagels, 324 NLRB 266,
275 (1997); Escanaba Paper, supra; Southwestern Bell, supra; Borman’s, supra.
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situations. The Board then commented that “all of these cases turn on fine distinctions of
respective statutory interests and on unique factual circumstances.” Id
The Board concluded that “the arbitrator balanced the respondent’s legitimate interests
in promoting appearance standards in support of its public image against the employees’
legitimate interests in making known their sentiments about their working conditions and
promoting solidarity among employees.” Thus, although the arbitrator did not expressly use the
“special circumstances” analysis required by the Board, according to the Board, he implicitly did
so, and his decision was “not palpably wrong” or “repugnant” to the Act. The Board therefore
deferred to the arbitrator’s award and dismissed the complaint.
While I agree with Respondent that there are some factual similarities between Bell-
Atlantic-Pennsylvania, supra and the facts here,15 there are also several significant distinctions,
which in my view render Respondent’s reliance on Bell-Atlantic-Pennsylvania to be misplaced.
First and foremost, Bell-Atlantic-Pennsylvania does not represent a finding by the Board
that “special circumstances” justifying the employer’s ban on the shirts were present. Rather, it
found only that the arbitrator’s decision was not “palpably wrong” or “repugnant” to the Act, or
put another way was “susceptible to an interpretation” consistent with the Act. Id at 1087, Motor
Convoy Inc., 303 NLRB 135, 136-137 (1991).16 Indeed, an award can meet that standard and
still be deferred to, even if the award is not totally consistent with Board precedent. Motor
Convoy, supra at 137; Dennison National Co., 296 NLRB 169, 170 (1989); United States Postal
Service, 275 NLRB 430, 433 (1985). Accordingly, Bell-Atlantic-Pennsylvania, supra cannot be
construed as significant precedent for concluding that the Board would or should find, as here,
where there is no arbitration award to evaluate that “special circumstances” have been
established.17
Further, there are several important factual differences between Bell-Atlantic
Pennsylvania and the instant case. There, it was undisputed that the employer maintained the
appearance standards as specified in its employment documents. Here, in contrast, the
evidence is disputed and reveals several instances where clearly more “offensive” shirts18 than
the shirts banned were permitted to be worn on numerous occasions without any comment or
criticism from supervisors. The vague and unpersuasive testimony of Nasznic and Saavedra as
to Respondent’s alleged enforcement of its policies is far from sufficient to meet Respondent’s
burden of proof that it has uniformly enforced its policies. I note that I do not and have not found
that Respondent discriminatorily enforced its uniform policies based on union considerations.
Indeed, the record reveals undisputed evidence that Respondent has permitted numerous kinds

15 Similar written policies with regard to appearance standards, as well as the fact that
employees did not wear uniforms, plus the fact that both Respondent and the employer in Bell-
Atlantic-Pennsylvania applied the ban only to “customer contact employees.”
16 The Board specifically observed that in deferring to the award “we do not reach the
question of whether we would necessarily reach the same result as the arbitrator.” 339 NLRB at
1085.
17 I note in this regard that the Board emphasized this fact and implicitly indicated that it
would likely rule differently if the case has been presented for ordinary review, absent an arbitral
award. 339 NLRB at 1087, where it observed that the shirts in question was not as disruptive to
the employer’s public image as in the cases of Southwestern Bell Telephone, supra and Noah’s
New York Bagels, supra.
18 For example, shirts reading “Out of beer, life is crap,” “I’m not drunk, I’m just a race fan,”
“The liver is evil, it must be punished” and “Support your local hookers.”
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of union activities, including the wearing of the prisoner shirts inside its facilities, as well as
permitting other union shirts to be worn by technicians involved in customer facing positions.
However, I find that Respondent’s assertion that it was attempting to apply its uniformly
enforced appearance policies by banning the prisoner shirts has not been established, and that
it is Respondent’s burden to do so as part of its burden to establish the existence of “special
circumstances.”
Further, while I agree with Respondent that Bell-Atlantic-Pennsylvania does make clear
that an employer’s concerns about the “public image” of its employees’ apparel can be a
legitimate component of the “special circumstances” standard, these concerns still must be
reasonable. The Board implicitly found such concerns to be reasonable there because the “road
kill” shirts depicting “employees as a squashed carcass lying in a pool of blood can be viewed
as unsettling to the public and was disruptive of the employer’s public image interests.” Id at
1085
The facts here do not come close to the facts in Bell-Atlantic-Pennsylvania vis a vis the
wording on the shirts. There is no depiction of employees as squashed carcasses lying in a pool
of blood or any similar such depiction than can reasonably be construed as disrupting
Respondent’s public image.
Respondent also cites Pathmark Stores, supra, where the Board found that shirts
reading “Don’t cheat about the meat” could be prohibited since the shirts “reasonably threatened
to create concern among the Respondent’s customers about being cheated, raising the genuine
possibility of harm to the customer relationship.” 342 NLRB at 379
Before evaluating whether Pathmark Stores is supportive of Respondent’s position, it is
useful to examine other precedent, where special circumstances have been found to exist.
The Board has found “special circumstances,” where the message on the apparel worn
by the employees was vulgar or obscene, Leiser Construction LLC, 349 NRLB 413, 415 (2007)
(hardhat sticker depicting someone or something urinating on a rat that was designated “non-
union”); Southwestern Bell, supra, 200 NLRB at 670-671 (sweatshirt stating “Ma Bell is a cheap
Mother,” found by judge, affirmed by Board, to be offensive, vulgar and profane); where banning
the union insignia is necessary based on safety considerations, Albis Plastics, 335 NLRB 923,
924-925 (2001) (unauthorized stickers on hard hats could interfere with visibility); union insignia
that may “exacerbate employee dissension”, Komatsu America, supra, 342 NLRB at 650 (t-shirt
with inflammatory comparison of Japanese employer’s outsourcing plans to 1941 sneak attack
on Pearl Harbor); Accord, Southwestern Bell, supra; union insignia that disparages or mocks the
employer product, Pathmark Stores, supra (t-shirt reading “Don’t cheat about the Meat,” found
to reasonably convey to customers that employer cheating them with respect to meat offered for
sale, raising the “genuine possibility of harm to the customer relationship”); Noah’s New York
Bagels, supra, 324 NLRB at 275 (lawful to prohibit t-shirt stating “If it’s not union, its not kosher,”
since it mocked employer’s kosher policy); or if the apparel unreasonably interferes with a public
image that the employer has established, Komatsu America, supra; Bell-Atlantic, supra;
Evergreen Nursing Home, 198 NLRB 775, 778-779 (1972) (ban on large, conspicuous bright
yellow button detracts from dignity of all white uniform worn by nurses); United Parcel Service,
supra, 195 NLRB at 441 (ban on conscious button supporting candidate in intra-union elections,
justified because it interfered with projected public image of uniformed drivers).19

19 But see United Parcel Service, 312 NLRB 596, 597-598 (1993), where the Board
Continued
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An examination of this and other precedent leads me to conclude, which I do, that
Respondent has failed to establish its defense of “special circumstances.”
The message on the shirts is undisputedly not obscene or vulgar, do not impinge on
safety concerns, do not disparage Respondent’s product or business and does not create
employee dissension.
Respondent places its primary reliance on its assertion that the shirts “unreasonably
interfere with the public image” that Respondent has established Komatsu America, supra at
649. Indeed, most of the cases finding the existence of “special circumstances” based upon this
theory involve uniformed employees, United Parcel, supra, 195 NLRB at 441; Evergreen
Nursing, supra at 778-779; or where the employer has established the existence of clearly
defined appearance standards, Bell-Atlantic-Pennsylvania, supra at 1085. Here, the employees
do not wear uniforms, and as I have observed above, Respondent has not established the
existence of clearly defined appearance standards. 20
Thus, Respondent’s defense comes down to its assertion that Respondent had a
reasonable belief that its public image would likely be damaged by the wearing of the prisoner
shirts in customer facing situations. Pathmark Stores, supra; Bell-Atlantic-Pennsylvania, supra. I
find that Respondent has fallen far short of meeting its burden of establishing that contention.
I conclude that Respondent’s evidence on this issue does not meet its burden of
showing by “substantial evidence” that the shirts reasonably would damage its business. Inland
Counties Legal Services, 317 NLRB 941 (1995); Virginia Electrical & Power Co., 260 NLRB
408, 409 (1982). The evidence presented by Respondent consists of unwarranted and
unsubstantiated speculation by Saavedra and Nasznic that the shirts might cause customers to
believe that the technicians were actual prisoners or that Respondent had a work release
program where it employed prisoners. Such testimony does not suffice to meet Respondent’s
burden of adducing substantial evidence necessary to establish “special circumstances.” Inland
Counties Legal Services, supra (speculation that union button might make a negative
impression on clients insufficient to meet burden; the mere possibility of such offense does not
outweigh the employees’ right to wear such items). Escanaba Paper Source, supra, 314 NLRB
at 733 (mere possibility that messages might make a negative impression on customers and
suppliers does not outweigh the employees’ Section 7 right to wear the item); Boise Cascade,
supra, 300 NLRB at 82 (general speculation or conclusory evidence insufficient to establish
special circumstances); Government Employees, supra, 278 NLRB at 385 (generalizations and
conclusions that there existed a possibility that armbands would cause confrontations
insufficient to meet burden of showing special circumstances); Midstate Telephone, supra, 262
NLRB at 1292 (although message on shirts may have displeased management, that does not
establish special circumstances); Eckerd’s Market Inc., 183 NLRB 337, 338 (1970) (vague
general evidence presented by Respondent not substantial enough to establish “special
circumstances”).
_________________________
distinguished prior United Parcel case cited above, finding that smaller pin did not interfere with
uniformed drivers desired image.
20 Flamingo Hilton Laughlin, 330 NLRB 287, 292 (1999) (employer has not established
longstanding policy regarding appearance rules and insufficient evidence adduced regarding
implementation of rules in a consistent manner); Raley’s Inc., 311 NLRB 1244, 1250-1251
(1993) (insufficient evidence of rigorous enforcement of appearance standards).
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Not only is Respondent’s evidence speculative and conclusionary and devoid of any
factual support21, but in fact other record evidence tends to dispel Respondent’s purported
fears. Thus, the record is undisputed that technicians when they arrive at a customers home
had come based on an appointment made by the customer, and that the technician would call to
confirm the appointment. Further, the technicians would be wearing an identification badge
when he or she comes to the door. Moreover, Respondent has adduced no evidence of what
kind of uniform is worn by prisoners in Connecticut or any neighboring state, or that these
uniforms have the words “inmate” or “prisoner” appearing thereon.
In these circumstances, I do not find that Respondent has established that it had a
reasonable belief that customers would be likely to confuse the technicians wearing the shirts
with real prisoners.
I also find it unreasonable to conclude that customers would believe that Respondent
had a work release program, where it actually employed prisoners. I find it improbable and in
fact preposterous to believe that if Respondent had such a program that they would advertise it
by placing the words “inmate” and “prisoner” on the shirts.
As I have detailed above, Respondent’s reliance on Bell-Atlantic-Pennsylvania, supra
and Pathmark Stores is misplaced, in that those cases, as well as other precedent cited above,
where “special circumstances” were found, are inapposite. Rather, substantial Board precedent
supports my conclusion that Respondent has not demonstrated the existence of “special
circumstances” sufficient to outweigh the employees’ Section 7 rights to wear the prisoner
shirts. Indeed, a number of these cases reveal that union insignia far more provocative, vulgar
or offensive than the shirts here were found not to establish “special circumstances” sufficient to
proscribe Section 7 conduct. Caterpillar, supra, 322 NLRB at 693 (t-shirts reading “Permanently
replace Fites22” and button reading “Happiness is waking up in the morning and finding Dan
Fites’ picture on a milk carton” and a caricature of Fites. Held to be fair comment of employees’
position in the labor dispute and “no showing that potential customers would be offended”);
Escanaba Paper, supra, 314 NLRB at 732-735 (buttons reading “Hey Mead – Flex this” and
hats and shirts reading “No Scab”); Borman’s, supra, 254 NLRB at 1024-1025 (shirts reading
“I’m tired of bustin’ my ass”); Government Employees, supra, 278 NLRB at 385 (armband
reading ”hostage/striker”); Southern California Edison, supra, 274 NLRB at 1124 (button reading
“Stick your retro”); Midstate Telephone, supra, 262 NLRB at 1292 (shirt depicting logo of
company as cracked and displaying words “I survived the Midstate strike of 1971-1975-
1979”).23

21 Respondent points to evidence from Saavedra’s testimony that at “around” the time of the
incidents, there was “in the news” a story of a home invasion in Cheshire, Connecticut, resulting
in the murder of several individuals. However, I find it unreasonable to believe that customers
would be likely to connect that event with the shirts. Further, Nasznic made no mention of the
issue. Thus, there is no record evidence that the decision makers were told about this alleged
concern by any management official, much less that it was part of Respondent’s decision to ban
the shirts.
22 Fites was the CEO of the employer.
23 I recognize that both Midstate Telephone, supra and Borman’s, supra were reversed by
Circuit Courts. However, I am bound by the Board decisions in these cases. Moreover, the facts
in these cases are distinguishable. In Midstate, the Court simply disagreed with the Board and
held that the depiction of the cracked logo might improperly suggest to the public that the
employer is coming apart. No such finding is possible here. In Borman’s, the Court reversed
primarily on the grounds that the conduct was isolated. No such finding is possible here. See
Continued
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Furthermore, as I have observed above, the pleasure or displeasure of an employer’s
customer does not determine the lawfulness of banning employee display of insignia. Inland
Counties, supra at 941; Howard Johnson Motor Lodge, 261 NLRB 866, 868 fn. 6 (1982).
Additionally, a desire of an employer to reduce controversy among customers is insufficient to
establish special circumstances, Nordstrom Inc., 264 NLRB 698, 701-702 (1982).
Respondent also relies on the facts that it has allowed other types of union shirts and
insignias to be worn inside and outside the plant. While these facts are supportive of
Respondent’s position, (Leiser Construction, supra 349 NLRB at 415; Komatsu America, supra
at 650), they are not sufficient by themselves to establish “special circumstances.” I do not find
here that Respondent discriminatorily applied its policy regarding shirts simply because it
contained a pro-union message. Rather, the allegation, which I find meritorious, is that its
decision to ban these shirts is unlawful because it interferes with protected Section 7 rights, and
that Respondent has not met its burden of overcoming the presumption that this conduct cannot
be prohibited, absent the existence of “special circumstances.” Thus, motive is not the issue
here, McDonald’s Drive-In Restaurant, 204 NLRB 299, 310 (1973), and although I am finding
that Respondent’s conduct violates Section 8(a)(3) of the Act, it is a derative finding of the
8(a)(1) violation since union activities are involved, but does not include a finding that
Respondent intended to discriminate based on union activities or conduct.24
In fact, my conclusion here is simply that Respondent decided to ban this particular
exercise of protected conduct because it felt that this shirt went too far in that the Union
attempted to communicate to customers that Respondent mistreated its employees. While
Respondent may have believed that some of its customers should not be exposed to this kind of
message, this fear is not sufficient to establish special circumstances since it is similar to
messages that the Board has found could not be banned. Borman’s, supra; Caterpillar, supra;
Southern California Edison, supra.
Accordingly, based upon the foregoing analysis and authorities, I conclude that
Respondent by prohibiting its employees from wearing the prisoner shirts, threatening them with
discipline for wearing the shirts and by disciplining employees for wearing these shirts, has
violated Section 8(a)(1) and (3) of the Act.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By ordering and instructing its employees to remove and not to wear the “HAVOC,”
“Scab” and “Prisoner” t-shirts, threatening its employees with suspension or other discipline if
they continued to wear these shirts, and by suspending its employees because they wore these
shirts, Respondent has violated Section 8(a)(1) of the Act.
_________________________
Southern California Edison, supra, 274 at 1121 fn. 2, distinguishing Midstate and Borman’s on
these bases.
24 See Caterpillar, supra, 322 NLRB at 693; Southern California Edison, supra, 274 NLRB at
1125; Midstate Telephone, supra, 262 NLRB at 1292; Eckerd’s Market, supra, 183 NLRB at 338
for cases finding violations of Section 8(a)(3) of the Act in similar circumstances.
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4. By suspending and otherwise disciplining its employees because they wore the
“HAVOC,” “Scab” and “Prisoner” t-shirts, Respondent has violated Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of Section
2(2), (6) and (7) of the Act.
The Remedy
Having found that Respondent has violated the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action necessary to effectuate the Act.
Respondent shall make whole the 183 employees that it suspended on August 12 and
September 8 for the unlawful discrimination against them, plus interest as computed in F.W.
Woolworth, 90 NLRB 289 (1950) and New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended25
ORDER
The Respondent, The Southern New England Telephone Company d/b/a AT&T
Connecticut, a wholly owned subsidiary of AT&T, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Ordering or instructing its employees to remove or not to wear the “HAVOC,” “Scab”
or “Prisoner” t-shirts, or not to engage in any other protected concerted activities.
(b) Threatening its employees with suspension or any other discipline if they continue to
wear the “HAVOC,” “Scab” or “Prisoner” t-shirts or if they engage in any other protected
concerted activity.
(c) Suspending or otherwise disciplining its employee because they engaged in wearing
the “HAVOC,” “Scab” or “Prisoner” t-shirts, or because they engaged in other protected
concerted activities, including activities in support of the Communication Workers of America.
(d) In any like or related manner, interfering with restraining or coercing employee in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies and purposes
of the Act.
(a) Make whole the 183 employees whom it suspended on August 12 and September 8,
2009 for any loss of earnings suffered as a result of the discrimination against them in the

25 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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manner set forth in the remedy section of this decision.
(b) Within 14 days from the date of this order remove from its files any references to the
suspension of the 183 employees, and within 3 days thereafter notify them in writing that this
has been done and that evidence of these suspensions will not be used as a basis for any
future action against them.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(d) Within 14 days after service by the Region, post at its New Haven, Connecticut
facility and at all its facilities located in the state of Connecticut, where bargaining unit
employees work, copies of the attached notice marked “Appendix.”26 Copies of the notice, on
forms provided by the Regional Director for Region 34, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since August 12, 2009.
Dated, Washington, D.C., June 18, 2010.
____________________
Steven Fish,
Administrative Law Judge

26 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–(NY)–22–10
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post
and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT order or instruct our employees to remove or not to wear the “HAVOC,” “Scab” or “Prisoner” t-
shirts, or not to engage in any other protected concerted activities.
WE WILL NOT threaten our employees with suspension or any other discipline if they continue to wear the
“HAVOC,” “Scab” or “Prisoner” t-shirts, or if they engage in any other protected concerted activities.
WE WILL NOT suspend or otherwise discipline our employees because they wear the “HAVOC,” “Scab” or
“Prisoner” t-shirts, or because they engage in any other protected concerted activities, including activities in
support of the Communication Workers of America.
WE WILL make whole the 183 employees, who were unlawfully suspended by us, for any loss of earnings
suffered as a result of the discrimination against them, plus interest.
WE WILL within 14 days from the date of this order remove from our files any references to the suspensions of
the 183 employees, and WE WILL within 3 days thereafter notify them in writing that this has been done and
that evidence of these suspensions will not be used as a basis for any future action against them.
The Southern New England Telephone Company d/b/a AT&T
Connecticut, a wholly owned subsidiary of AT&T
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It
conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair
labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition,
you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the
Board’s website: www.nlrb.gov.
A.A Ribicoff Federal Building and Courthouse
450 Main Street, 4th Floor
Hartford, CT 06103
Hours: 8:30 a.m. to 5 p.m.
860-240-3522.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 860-240-3528.