A Return Of “Common Sense” To The Courtroom? DC Circuit Concludes That AT&T Connecticut Was Justified In Banning Employees From Wearing “Prisoner Of AT$T” Shirts In Customer Homes

LR-Three-Men-In-HardhatsHow would you feel if a telephone or cable repair person showed up at your residence wearing a t-shirt that said “Inmate”?  In Southern New England Telephone Company v. National Labor Relations Board  the United States Court of Appeals for the District of Columbia Circuit recently reversed a finding of the National Labor Relations Board (“NLRB”) that AT&T Connecticut (“AT&T”) unlawfully prohibited many of its employees from wearing union issued t-shirts.  The shirts stated “Inmate#” on the front and “Prisoner of AT$T” on the back.

AT&T had banned employees from wearing those shirts in public or when interacting with customers, and had suspended employees who violated the ban.  The employees’ union filed an unfair labor practice charge under Section 8 of the National Labor Relations Act (“NLRA”), asserting that the ban violated employee rights under Section 7 to wear shirts indicating union support.  The NLRB agreed with the union, and rejected AT&T’s assertion that the “special circumstances” doctrine (a judicially recognized limitation on Section 7 rights under which a company may lawfully ban union messages on publicly visible apparel on the job when the company reasonably believes the message may harm its relationship with its customers, or its public image) permitted the ban.  While AT&T argued that the shirts could alarm or confuse customers, cause customers to believe that AT&T employees were actually convicts, or otherwise generally harm the company’s public image, the NLRB found to the contrary, concluding that the shirts would not cause fear in customers since they could not be confused for actual prison garb.

Confirming that “[c]ommon sense sometimes matters in resolving legal disputes”, the Court of Appeals found the NLRB’s rejection of AT&T’s special circumstances defense unreasonable.  The Court determined that the appropriate test is not whether AT&T customers might confuse the shirt with actual prison garb, but instead whether AT&T could reasonably believe that the message may harm its relationship with its customers or its public image.  Noting that the NLRB’s “expertise is surely not at its peak in the realm of employer-customer relations”, the Court concluded that to resolve the case one need only ask “[w]hat would you think about a company that permitted its technicians to wear such shirts when making home service calls?”

While the ruling does not alter the existing parameters of employer dress codes under the NLRA, it is refreshing to see a common sense approach applied to the review of employer-workplace decisions.