SHEBOYGAN, Wis. (PAI) – In one of the more unusual decisions a National Labor Relations Board official has ever handed down, administrative law judge Charles Muhl rejected a Communications Workers local union’s complaint about AT&T’s button ban in Sheboygan and Fond du Lac, Wis., because the union did not bring the issue up in prior bargaining.
But Muhl then allowed the buttons, anyway, ordering AT&T Wisconsin not to ban them.
The key to Muhl’s ruling, issued July 12, is that in a prior case involving other CWA locals, dealing with Pacific Bell in California and Nevada Bell, with an identical button, the full National Labor Relations Board itself ruled last year the banned button did not break labor law.
And Muhl said he had to follow that ruling, even if CWA Local 4622 in Wisconsin did not raise the button ban in bargaining or when the firm issued new employee handbooks, but only when AT&T enforced it. The local then filed an unfair labor practices charge against the firm.
AT&T Wisconsin promulgated a no-button, no-union insignia rule in its employee handbook for Sheboygan and Fond du Lac in 2009. Muhl said CWA Local 4622 did not challenge the button ban as late as 2013. But when the techs at Wisconsin Bell started wearing the buttons in 2014, AT&T Wisconsin enforced its no-button rule.
The button expressed worker displeasure at AT&T’s stances in negotiations. It “carried the acronym ‘WTF’ on it. The button here states ‘CWA Local 4622,’ ‘WTF AT$T,’ and ‘Where’s the Fairness'” and was called the WTF button, Muhl said.
Meanwhile, Muhl pointed out, the full board ruled for the button in the case involving Pacific Bell, Nevada Bell and CWA. In that decision, “The board rejected the argument” by the phone companies that there were “special circumstances” that justified banning the buttons, he explained. AT&T Wisconsin made the same special circumstances argument.
In the prior case, “The board found the button language was not so offensive and vulgar as to lose the protection of the National Labor Relations Act or damage the companies’ public image with their customers. In so holding, the board relied upon the button’s inoffensive ‘Where’s the Fairness’ interpretation of WTF. The WTF button here includes the same innocuous interpretation,” so, Muhl ruled, he had to decide the same way.
But he chided Local 4622 for not acting “with due diligence” and challenging the button ban either in bargaining or in challenging the employee handbook. The union effectively waived its right to challenge the buttons and so lost its specific complaint, Muhl said.
“Establishing waiver” of bargaining rights “is a heavy burden,” but because the local didn’t act, it “waived the right to bargain over” AT&T Wisconsin’s “decision to implement and maintain the ban on premises technicians wearing any buttons,” Muhl said. So AT&T “lawfully enforced the button prohibition against premises technicians in November 2014 and May 2015.” But the other California-Nevada case legalized the button, so Muhl reinstated it.
Photo: CWA Local 4622 Facebook page