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NLRB Says Employers Can’t Ban Union Clothing

Sept. 26, 2022
Decision could threaten all company uniform policies.

The National Labor Relations Board (NLRB) recently ruled that workplace dress codes and uniform policies that prevent employees from wearing pro-union apparel of any type, even if facially neutral, are presumed to be unlawful.

The 3-2 decision by the five-member board split down party lines and involved electric vehicle manufacturer Tesla Inc. The company had maintained a policy requiring employees to wear Tesla-provided or all-black clothing while at work.

When workers at the company’s Fremont, CA, facility began wearing pro-union apparel, Tesla instructed them to stop wearing such items in violation of its dress code. The United Auto Workers (UAW) challenged this ban and raised other issues as well. The NLRB regional counsel eventually brought a broader complaint against it in 2017 that also included this issue.

This case arose out of a UAW campaign to organize Tesla. Some employees first wore black cotton shirts at work, with the union’s campaign slogan, “Driving a Fair Future at Tesla,” on the front and a larger logo with the slogan and “UAW” on the back. Tesla strictly enforced its team wear policy. Employees could also wear plain all-black clothing if approved by a supervisor.

Although employees were not permitted to wear union shirts according to the company’s policy, they were permitted to wear union stickers on their clothing. Over the years various corporate workforce policies have come under attack depending on how the NLRB defines Section 7 of the National Labor Relations Act (NLRA), which protects the right of workers to communicate about their wages and working conditions (and which also extends to protecting nonunion workers).

The board has grappled with other cases involving pro-union speech as well as signs and symbols over the years, including a years-long controversy involving the giant inflatable rat named Scabby who shows up regularly on union picket lines.

Over the years, the NLRB has swung back and forth in its position concerning union insignia, clothing, decals and badges worn in the workplace, depending on whether Democrats or Republicans were in the majority.

In the Tesla decision the board overturned an earlier board precedent that had been set in 2019 when Donald Trump was President regarding a Walmart uniform policy, when Republican members were in the majority on the NLRB.

The new policy holds that all restrictions on union insignia are presumptively an unlawful labor practice under the law absent special circumstances, note attorneys Caroline Kane, Jason Patterson and Jennifer Dunn of the Franczek law firm.

“In finding the policy unlawful, the board rejected Tesla’s special circumstances arguments, including Tesla’s position that the policy aided in the visual management of employees, and lowered the risk of employee clothing causing mutilations to the vehicles. Practically, this decision makes clear that even facially neutral non-discriminatory dress codes are presumed unlawful,” the attorneys explained.

The attorneys also stressed that this decision will likely raise more questions than answers for those employers whose uniform policies have not been challenged yet, but they clearly expect more cases similar to this one to be brought before the board.

Employers Are Warned

Kane, Patterson and Dunn cited several key points for employers to consider in the wake of the board’s decision. The board cited examples of special circumstances that could conceivably justify uniform policies, while acknowledging that this is typically a fact-intensive analysis. These examples include: preserving the company’s public image; safety concerns; product quality concerns; and business interests in prohibiting certain slogans and messaging that is inflammatory.

“Many employers, particularly those with employees who interact with the public, may have already had such policies reviewed by the NLRB. In large part, those special circumstances likely continue to prevail under the board’s pivot in Tesla,” the attorneys contend.

This decision may have a particular impact on employers in industries without customer-facing employees. The attorneys point out that, absent articulable safety concerns in those particular industries, it likely will be difficult to establish special circumstances justifying restrictions on union insignia.

They also recommend that all employers should review their dress code and uniform policies and be prepared to explain the special circumstances that justify any restrictions on the wearing of union insignia.

However, according to attorneys David Broderdorf, Crystal Carey and Harry I. Johnson III of the law firm of Morgan, Lewis & Bockius, the board majority made several sweeping statements in the decision that employers also should consider when moving forward.

For example, the board asserted, “That an employer’s uniform policy or dress code effectively prohibits employees from wearing all clothing other than the clothing prescribed by the employer (including, but not limited to, union clothing) does not make the employer’s action lawful.”

The decision adds, “Further, the special circumstances test appropriately places the burden on the employer because, as the party asserting that employees’ Section 7 rights must be restricted to achieve a legitimate business objective, it logically is in the best position to offer evidence on the point.”

At another point the board wrote, “When an employer interferes in any way with employees’ Section 7 right to display union insignia (whether through buttons, pins, stickers, shirts, hats, or any other accessories or attire), that interference is presumptively unlawful, and the employer has the burden to establish special circumstances that justify its interference.”

The Morgan, Lewis attorneys also predict it is likely there will be an increase in the number of unfair labor practice charges alleging that the mere maintenance of dress codes or uniform policies violates the NLRA, especially in industries or workplaces without customer-facing employees.

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