 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued December 12, 2012             Decided July 10, 2015
Ordered Held in Abeyance February 19, 2013
Removed from Abeyance December 8, 2014

                        No. 11-1099

     SOUTHERN NEW ENGLAND TELEPHONE COMPANY,
                    PETITIONER

                             v.

           NATIONAL LABOR RELATIONS BOARD,
                     RESPONDENT

    COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,
                    INTERVENOR


                 Consolidated with 11-1143


     On Petition for Review and Cross-Application for
  Enforcement of an Order of the National Labor Relations
                          Board


    George E. O'Brien argued the cause for petitioner. With
him on the briefs were Thomas P. Dowd and Jason R.
Stanevich.

    Zachary R. Henige, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
                              2

were John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, and Robert J.
Englehart, Supervisory Attorney.

     James B. Coppess argued the cause and filed the brief for
intervenor.

   Before: TATEL and KAVANAUGH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge KAVANAUGH.

     KAVANAUGH, Circuit Judge: Common sense sometimes
matters in resolving legal disputes. This case is a good
example. AT&T Connecticut banned employees who interact
with customers or work in public – including employees who
enter customers’ homes – from wearing union shirts that said
“Inmate” on the front and “Prisoner of AT$T” on the back.
Seems reasonable. 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.” But the NLRB ruled in a 2-1 decision that
AT&T committed an unfair labor practice by barring its
employees from wearing those shirts. Section 7 of the
National Labor Relations Act protects the right of employees
to wear union apparel at work. But under this Court’s
precedent and Board decisions, 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. Put
simply, it was reasonable for AT&T to believe that the
“Inmate/Prisoner” shirts may harm AT&T’s relationship with
its customers or its public image. Therefore, AT&T lawfully
                                 3

prohibited its employees here from wearing the shirt. We
grant AT&T’s petition for review, vacate the Board’s decision
and order with respect to the “Inmate/Prisoner” shirts, and
deny the Board’s cross-application for enforcement.1

                               ***

     AT&T Connecticut provides telecommunication services
throughout Connecticut. (We will use AT&T as shorthand to
refer to AT&T Connecticut.) A union known as the
Communication Workers of America represents AT&T’s
employees. As part of a public campaign to put pressure on
AT&T during contentious contract negotiations, the union
distributed T-shirts to its members. The shirts were white
with black lettering. The front of the shirt said “Inmate #” and
had a black box beneath the lettering. The back of the shirt
said “Prisoner of AT$T,” with several vertical stripes above
and below the lettering. The shirt contained no reference to
the union or to the ongoing labor dispute.

     On two occasions, the union encouraged employees to
wear the “Inmate/Prisoner” shirt to work, and hundreds of
employees did so. Each day, AT&T supervisors instructed all
employees who interacted with customers or worked in public
to remove the “Inmate/Prisoner” shirt. AT&T issued one-day
suspensions to 183 employees who did not comply with the
directive to remove the shirt.


    1
       This case was initially argued in December 2012 and then held
in abeyance pending resolution of various challenges to the
constitutionality of certain appointments to the NLRB. Those
challenges have now been resolved in a way that does not affect this
case. See Mathew Enterprise, Inc. v. NLRB, 771 F.3d 812 (D.C.
Cir. 2014).
                                4

     Publicly visible employees consist of two groups:
technicians who install and repair lines at residences and
businesses, and technicians who work on construction projects
in public. Those publicly visible employees are subject to
AT&T’s appearance standards.             AT&T requires those
employees to present a professional appearance at all times and
to refrain from wearing clothing with “printing and logos that
are unprofessional or will jeopardize” the “Company’s
reputation.” Notwithstanding the appearance guidelines, in
the years before this incident, several individual AT&T
employees had worn shirts printed with questionable messages
and had not been disciplined for doing so. Examples
included: “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”; “If I want your opinion . . . . . I’ll
take the tape off your mouth!”; and “Out Of Beer. Life Is
Crap.”

     After the suspensions in this case, the union filed an unfair
labor practice charge. According to the union, AT&T
infringed on employees’ rights under Section 7 of the National
Labor Relations Act by disciplining employees who had
refused to remove their “Inmate/Prisoner” shirts. See 29
U.S.C. § 157.

    AT&T responded by invoking the “special circumstances”
doctrine, a limitation on Section 7 long recognized by the
Supreme Court. See Republic Aviation Corp. v. NLRB, 324
U.S. 793, 801-03 (1945). Under the “special circumstances”
doctrine, 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.                See
                               5

Bell-Atlantic-Pennsylvania, Inc., 339 NLRB 1084, 1086
(2003).

     In arguing that the “special circumstances” doctrine
applied here, AT&T explained that it banned only employees
who interact with customers or work in public from wearing
the “Inmate/Prisoner” shirt. See Bell-Atlantic-Pennsylvania,
339 NLRB at 1084-85. AT&T officials testified that the shirts
could alarm or confuse customers, could cause customers to
believe that AT&T employees were actually convicts, or could
harm the company’s public image more generally. AT&T
was particularly concerned about how the shirts would be
perceived in Connecticut in light of a recent and widely
publicized home invasion in Cheshire, Connecticut, in which
three people were murdered. And AT&T expressed concern
not only about the specific risk that customers would believe
the employee was actually a convict, but also about the shirt’s
potential negative effects on AT&T’s public image more
generally.

     The administrative law judge decided that AT&T’s
prohibition of the shirts violated the Act. In a divided
decision, the National Labor Relations Board affirmed the
ALJ’s conclusion, finding that the “Inmate/Prisoner” shirt
“would not have been reasonably mistaken for prison garb”
and that “the totality of the circumstances would make it clear”
that a technician wearing the shirt was an AT&T employee
“and not a convict.” Southern New England Telephone Co.,
356 NLRB No. 118, at 1 (2011). Board Member Hayes
dissented, concluding that the potential for the shirt “to alarm
customers and thereby damage” AT&T’s “reputation was
sufficient to justify its regulation.” Id. at 3.
                               6

     AT&T has filed a petition for review of the Board’s
decision. We review the Board’s application of the law to the
facts for reasonableness. See New York & Presbyterian
Hospital v. NLRB, 649 F.3d 723, 729 (D.C. Cir. 2011).

     The “special circumstances” exception to Section 7 is
designed “to balance the potentially conflicting interests of an
employee’s right to display union insignia and an employer’s
right to limit or prohibit such display.” Nordstrom, Inc., 264
NLRB 698, 700 (1982). “Special circumstances” include
“protecting the employer’s product” and “maintaining a certain
employee image.” Guard Publishing Co. v. NLRB, 571 F.3d
53, 61 (D.C. Cir. 2009).

     The Board has repeatedly recognized that an employer
that reasonably believes its employees’ union apparel at work
may damage the employer’s relationship with its customers or
its public image may invoke the “special circumstances”
exception. In one such case, employees of a grocery store
wore union shirts stating “Don’t Cheat About the Meat!”
Pathmark Stores, Inc., 342 NLRB 378, 378 (2004). The
Board ruled that “the slogan reasonably threatened to create
concern” among “customers about being cheated, raising the
genuine possibility of harm to the customer relationship.” Id.
at 379. In another case, a company banned its employees
from wearing T-shirts depicting employees as squashed
carcasses      labeled        “Road       Kill.”           See
Bell-Atlantic-Pennsylvania, 339 NLRB at 1084-85. The
Board upheld an arbitrator’s conclusion that the ban was
appropriate because the employer “reasonably could believe
that observing the shirt would unsettle the public despite the
absence of explicit disparagement of the [company’s] products
or service.” Id. at 1085. The Board stated: “An employer’s
concern about the ‘public image’ presented by the apparel of its
                              7

employees is, therefore, a legitimate component of the ‘special
circumstances’ standard.” Id. at 1086.

     Similarly, this Court has concluded that “special
circumstances” may justify an employer’s ban on a shirt that
mocked a company incentive program.               The incentive
program was known as “WOW.” The shirts said “I don’t need
a WOW to do my job.” See Medco Health Solutions of Las
Vegas, Inc. v. NLRB, 701 F.3d 710, 712, 716-17 (D.C. Cir.
2012). This Court criticized the Board’s cursory rejection of
the company’s “straightforward argument that the message on
the T-shirt was insulting to the company and would have
undermined its efforts to attract and retain customers.” Id.

     It is true that the employer bears the burden of
demonstrating “special circumstances.”             See Guard
Publishing, 571 F.3d at 61. But the Board has recognized that
an employer can meet its burden by demonstrating a
reasonable belief that the message may damage customer
relations – even in the absence of evidence of actual harm. In
Pathmark Stores, for example, the prohibited message created
a reasonable risk to the customer relationship, and the Board
did not require the company to present evidence that the shirts
actually affected customer behavior. See 342 NLRB at 379.
Likewise, in Medco Health, this Court stated that Board
precedent did not “require the employer to offer additional
evidence beyond a relationship between its business and the
banned message.” 701 F.3d at 717; see also Nordstrom, 264
NLRB at 701 n.12 (employer “need not await customer
complaint before it takes legitimate action to protect its
business”).

    In this case, we conclude that the Board applied the
“special circumstances” exception in an unreasonable way. In
                               8

particular, the Board found that the “Inmate/Prisoner” shirt
“would not have been reasonably mistaken for prison garb”
and thus was not “reasonably likely, under the circumstances,
to cause fear or alarm” among AT&T’s customers. Southern
New England, 356 NLRB at 1. As this Court observed in
Medco Health, however, the Board’s “expertise is surely not at
its peak in the realm of employer-customer relations.” 701
F.3d at 717. And here, the appropriate test for “special
circumstances” is not whether AT&T’s customers would
confuse the “Inmate/Prisoner” shirt with actual prison garb, but
whether AT&T could reasonably believe that the message may
harm its relationship with its customers or its public image.
To resolve this case, it is enough to ask the question, as
Member Hayes did in dissent: “What would you think about a
company that permitted its technicians to wear such shirts
when making home service calls?” Southern New England,
356 NLRB at 2.

     Citing our decision in Guard Publishing, the Board
suggests that AT&T did not enforce its ban on unprofessional
clothing in an evenhanded way, allowing other questionable
shirts to be worn while banning the “Inmate/Prisoner” shirt.
But the other shirts were not nearly as problematic as the one at
issue here, or at least a reasonable employer could so conclude.
Moreover, 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. The ultimate question for the Board
in any individual case is whether the employer has shown a
reasonable belief that the particular apparel may harm the
employer’s relationship with its customers or its public image.

     In short, given the straightforward evidence that AT&T
introduced of the shirt’s message and the circumstances under
                               9

which customers interact with or can see employees wearing
the shirt, the Board should have held that “special
circumstances” applied here.

                             ***

    We grant AT&T’s petition for review, vacate the Board’s
decision and order with respect to the “Inmate/Prisoner” shirts,
and deny the Board’s cross-application for enforcement.

                                                    So ordered.
