If the NLRB has a consistent adversary, it is common sense. And so, it was a bad sign for the NLRB when the District of Columbia Circuit Court of Appeals began its review of a recent NLRB Order with the following line: “Common sense sometimes matters in resolving legal disputes.” The NLRB had tried to strike down AT&T’s common sense prohibition against customer-facing employees wearing T-shirts with the word “Inmate” on the front and “Prisoner of AT$T” on the back. The NLRB found that the message on the shirts was protected and that AT&T’s prohibition was not saved by “special circumstances”. The NLRB contended that AT&T could show no actual customer fear or harm to customer relations, and that because AT&T had permitted employees to wear other “unprofessional” attire, it could not object to the “Inmate/Prisoner” shirts.

On review, the Court quickly dispatched the NLRB’s analysis, noting that the “special circumstances” exception includes “protecting the employer’s product” and “maintaining a certain employee image.” The Court explained that the Board itself recognized in the past that, if an employer reasonably believes that union apparel may harm the relationship with customers or an employer’s public image, the apparel may be lawfully prohibited. The Court found that one common sense question trumped the NLRB’s arguments: “What would you think about a company that permitted its technicians to wear such shirts when making home service calls?” Southern New England Telephone Company v. NLRB., No. 11-1099 (D.C. Cir. July 10, 2015).