By TIM RYAN from courthousenews.com
“Common sense sometimes matters in resolving legal disputes,” D.C. Circuit Judge Brett Kavanaugh wrote for the three-judge panel. “This case is a good example.”
An NLRB panel ruled 2-1 for the Communications Workers of America against Southern New England Telephone. The company had suspended for one day 183 employees who refused to change their shirts, so the union sued. It called the T-shirt prohibition an unfair labor practice.
But Kavanaugh wrote that though federal law allows workers to wear union apparel at work, “there is a ‘special circumstances’ exception to that general rule: A company may lawfully prohibit its employees from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image.”
Kavanaugh added in his July 10 ruling: “No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say ‘Inmate’ and ‘Prisoner.'”
AT&T had argued that its technicians who made house calls wearing the shirts might alarm customers who mistook them for actual convicts, particularly as three people had been killed in a home invasion in Connecticut around the time as the union unveiled the shirts.
Kavanaugh noted that AT&T had allowed workers to wear suggestive shirts on the job without punishment, such as: “‘Support your local hookers’ (with an image of a fishing lure); ‘The liver is evil. It must be punished’; ‘I’m not drunk. I’m just a race fan’; [and] ‘If I want your opinion … I’ll take the tape off your mouth!'”
But the company’s seemingly inconsistent application of its dress rules should not stop it from punishing inappropriate clothing in the future, Kavanaugh said.
“No case holds that a company that on some occasions has allowed unprofessional clothing to be worn by employees is somehow estopped from prohibiting other unprofessional clothing,” Kavanaugh wrote.
The NLRB doubted that customers might mistake the T-shirts for actual prison attire, but Kavanaugh said the board need only consider whether the shirts could reasonably harm the company’s relationship with customers.
“To resolve this case, it is enough to ask the question, as [NLRB] Member [Brian] Hayes did in dissent: ‘What would you think about a company that permitted its technicians to wear such shirts when making home service calls?'” Kavanaugh wrote.
He vacated the board’s decision and order on the T-shirts, granted its petition for review, and denied the NLRB’s cross-application for enforcement.
AT&T did not respond to a request for comment.
The Communications Workers of America declined to comment.
Southern New England Telephone had been an AT&T company on and off several times due to divestments and acquisitions. When the NLRB ruled, in 2011, the company was a part of AT&T Teleholdings