By Matthew Santoni

Law360 (November 10, 2020, 8:28 PM EST ) The Port Authority of Allegheny County, Pennsylvania, didn't enforce its uniform code ban on employees wearing political or social slogans until workers started wearing masks with "Black Lives Matter" messages, employees and union officials testified Tuesday in federal court in a lawsuit claiming the policy was discriminatory.

In video testimony before U.S. District Judge J. Nicholas Ranjan, various bus drivers, instructors and union officials for the Pittsburgh-based transit agency said the Port Authority hadn't enforced the policy for political and union buttons, large jewelry, religious symbols, tattoos and certain facial piercings — until a revision to the policy over the summer barring political and social messaging was used to discipline employees who wore face masks saying "Black Lives Matter."

"It's a paper policy," said Stephen Palonis, president of Amalgamated Transit Union Local 85, the union representing about 2,200 Port Authority employees. "As far as the uniform policy goes, nobody actually disciplined anybody for not following the policies."

Judge Ranjan heard the employees' testimony for most of the day on Tuesday while considering the union's request for an injunction.

The lawsuit, brought by the ATU in late September, claimed that the Port Authority violated employees' rights to freedom of speech, freedom of association and equal protection under the First and 14th amendments to the U.S. Constitution when it revised its uniform policy in June to ban "buttons, stickers, jewelry and clothing (including masks or other face coverings) of a political or social protest nature."

The Port Authority's CEO had expressed her personal support for the movement, and the agency in the past had spread official messages of support for LGBTQ rights, veterans and the victims of the 2018 shooting at the Tree of Life synagogue, the employees testified, adding that it had also accepted drivers who decorated their buses for Christmas every year.

The Port Authority, sometimes abbreviated as "PAT," had responded that it had since replaced the policy with a broader requirement that employees must wear blank masks or masks with official Port Authority or ATU branding.

On Tuesday, multiple employees from the agency — which operates buses, light rail and inclines around the Pittsburgh region — said the uniform policy enforcement had been lax until there were protests supporting the Black Lives Matter movement over the summer.

Though the policy ostensibly had barred them from doing so, drivers said they previously wore buttons and hats supporting political candidates, religious symbols and large jewelry — including "peace" symbols, "Black Power" fists or earrings that said "Black Lives Matter" — and once the coronavirus pandemic forced them to wear face coverings, some wore Black Lives Matter or pro-police "thin blue line" messages on their masks.

They testified that they never got complaints from management or customers, though Palonis said he once received some texts opposed to the union's lawsuit, and one driver claimed he experienced social media pushback for wearing a "thin blue line" mask because he was also a firefighter who frequently worked alongside police officers.

"A few customers who said anything were like, 'right on.' They were happy someone from Port Authority felt the way they do," said bus operator Vincent Brandon, who noted that his masks also included "Black Fatherhood Matters," "Black Women Matter" and "Black Children Matter" messages.

Others pointed to their past wearing of political buttons or clothes that left heavily tattooed arms and legs exposed despite the uniform policy against it, adding that their coworkers had been allowed to work with non-compliant shoes, shorts, hats and pants.

"In the military, a uniform's a uniform … I was amazed by the variation of 'uniforms' in this place," said union "boardman" James Savage, a veteran who would wear a Marines hat while working the week of Veteran's Day.

But when the policy was revised to extend the political and social messaging ban to masks, the suit said the Port Authority cracked down just on employees wearing Black Lives Matter slogans.

Port Authority attorney Brian Gabriel of Campbell Durrant PC pressed some employees about whether the message invited backlash or conflict, but Palonis and others noted that official, sanctioned messaging from the Port Authority, such as a bus wrapped in an LGBTQ pride rainbow, led some drivers to resist driving routes with that bus.

Judge Ranjan said additional testimony from the union and the Port Authority would be continued to Nov. 17.

ATU Local 85 and the individual employees are represented by Joseph J. Pass and Patrick K. Lemon of Jubelirer Pass & Intrieri PC.

The Port Authority is represented by Brian P. Gabriel of Campbell Durrant PC and Gregory J. Krock of McGuireWoods LLP.

The case is Amalgamated Transit Union Local 85 et al. v. Port Authority of Allegheny County, case number 2:20-cv-01471, in the U.S. District Court for the Western District of Pennsylvania.

--Editing by Steven Edelstone.

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