NLRB Reaffirms "Special Circumstances" Test For Union Insignia Cases

• Published date: 13 September 2022
• Subject Matter: Employment and HR, Employee Rights/ Labour Relations
• Law Firm: Ford & Harrison LLP
• Author: Howard M. Waldman

Executive Summary: On August 29, 2022, in a 3-2 decision, the National Labor Relations Board (NLRB or Board) reaffirmed that when an employer interferes in any way with its employees' right to display union insignia, the employer must prove special circumstances that justify its interference. See Tesla, Inc., 32-CA-197020, 371 NLRB 131 (2022). In reaching this decision, the Board overruled a 2019 decision in which it held that the "special circumstances" standard only applied to employer policies that prohibited'rather than restricted'an employee from displaying union insignia.

Facts

Tesla's dress code required certain employees to wear black shirts with Tesla's logo. Although these employees were not allowed to wear black union shirts in lieu of the required uniform, the employees were allowed to wear union stickers on their uniforms. Tesla supported this dress code on two grounds. First, as these employees helped assemble electric vehicles, Tesla maintained that the uniforms would lower the risk of employees' clothing causing damage to the vehicles. Second, Tesla claimed that the required uniforms assisted in the visual management of the workplace by allowing managers to easily determine that employees were in their assigned work areas and to help distinguish among the different types of employees based on their shirt color.

Previous Decisions on Displaying Union Insignia Analyzed in Tesla

In analyzing the lawfulness of Tesla's dress code, which restricted the display of union insignia by requiring employees to wear specific shirts, thereby implicitly precluding employees from wearing union shirts, the Board focused on three previous decisions involving union insignia. First, the Board addressed the 1945 decision by the Supreme Court of the United States in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), which affirmed that employees have a protected right to display union insignia under the National Labor Relations Act (NLRA). This case established the principle that any employer limitation on the display of union insignia is presumed to be invalid, with the burden on the employer to show that special circumstances exist to justify its interference with the employees' statutorily protected rights.

Second, the Board looked to its 2010 decision in Stabilus, Inc., 355 NLRB 836 (2010), which involved an employer's uniform policy that required employees to wear shirts with the employer's name. Although the Board invalidated the employer's policy in St...