In ruling on a case involving the rights of telephone company employees to wear union t-shirts while they were working, Brett Kavanaugh began his opinion with the observation that “common sense sometimes matters in resolving legal disputes.”  But, as the case illustrates, sometimes “common sense” can be a mask for class prejudice, and this is particularly true when the judge in question grew up attending private schools and an Ivy League university, and has never represented the powerless in our society.

In 2009, the Communication Workers of America (CWA) was engaged in difficult negotiations with AT&T Connecticut for a new collective bargaining agreement.  In order to gain more leverage in those negotiations, CWA waged a public campaign to notify AT&T’s customers that the Union believed that AT&T was mistreating its workers, and that the workers were united.  One part of that campaign included having workers wear union t-shirts while they worked.  Workers had long been allowed to wear t-shirts with slogans, including slogans in questionable taste.  These slogans included “Support Your Local Hookers,” “The Liver is Evil and Must be Destroyed,” “It’s All About the Booty,” “Your IQ Came Back Negative,” “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.”  The Union designed t-shirts with writing on the front that said “INMATE #,” and writing on the back that said “PRISONER OF AT$T.”  The back of the t-shirt also had some vertical stripes.  An original design of the t-shirt had prison stripes that made it look like an old-fashioned prison uniform, but that design was rejected as too realistic.  The Union deliberately changed the design so that no one would mistake it for a prisoner shirt.

The Union representatives applied their own common sense to the dispute.  The technicians who wore these shirts never visit a customer’s home unannounced.  Instead, they only go to customers after an appointment has been made.  The workers arrive in a company truck, and they display identification badges on a lanyard.  In light of these facts, one Union representative testified that “you’d have to be an idiot to think that there was a prisoner at your front door.”  Nevertheless, AT&T supervisors ordered workers not to wear the “prisoner” t-shirts, and it issued one-day suspensions to workers who refused to remove their t-shirts.

The National Labor Relations Board, with the approval of the courts, has long held that absent “special circumstances,” workers have a right to wear union-related garb at work, including buttons, hats, lanyards, and t-shirts.  As the Fifth Circuit has explained in a recent case, the “special circumstances” exception is a narrow one that applies only where allowing the workers to wear the items in question would (1) “jeopardize employee safety;” (2) “damage machinery or products;” (3) “exacerbate employee dissension;” or (4) “unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees.”  In the AT&T case, the employer argued that “special circumstances” justified its decision to ban the prisoner t-shirts because the shirts harmed the company’s image.  AT&T had argued that customers might think that the workers were actual prisoners, perhaps on a work release program.  The judge who presided over the hearing rejected that argument, finding it “preposterous” to believe that if AT&T had a work release program, it would advertise it by placing the words “inmate” and “prisoner” on the shirts.  Instead, the judge concluded that AT&T did not want its customers to be exposed to the message that it mistreated its employees, but under established law, that’s not a valid basis for banning a particular piece of union paraphernalia.

Here’s how Judge Kavanaugh viewed the case:  “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.”  I can’t argue with that, but here’s the problem with applying “common sense” to legal disputes.  Congress passed the National Labor Relations Act precisely because it recognized the need to give workers rights that go beyond what companies want their workers to do.  Most companies don’t want their workers to unionize, they certainly don’t want their workers to strike or picket, or to go on television criticizing the company for mistreating them.  Yet, federal labor law gives workers a right to do all of these things.

The problem with Judge Kavanaugh’s “common sense” is that the “common sense” of the corner office is different than the common sense of the corner barber shop.  If you took a poll of CEOs, most of them might agree that it’s “common sense” to try to screen out pro-union workers, or to fire workers who publicly criticize them.  If Judge Kavanaugh polled his friends, they would probably find it hard to understand why the AT&T workers couldn’t have just toned down their rhetoric.  After all, the workers weren’t literally prisoners.  Of course, if you have the power to hire and fire and to set wages and benefits, it’s easy to promote civility.  Sure, I just made it impossible for you to pay your bills this month, but can’t you keep your voice down while we escort you from the premises.

Judge Kavanaugh wrote that to decide the AT&T case it was enough to ask, “What would you think about a company that permitted its technicians to wear such shirts when making home service calls?”  But, another way to frame the question is, “What would you think of a company that lets its workers wear shirts that joke about drinking and prostitution, but denies them the right to wear shirts that take sides in a labor dispute?”  You might think that the company was interfering with its workers freedom of speech, and if you were a rank and file worker, you might think it’s just “common sense” that Connecticut AT&T’s treatment of its workers was more offensive than the t-shirt the workers wore to publicize that treatment.