NLRB Rules That Workplace Policies Restricting Wearing Of Union Insignia Are Unlawful Absent "Special Circumstances"

• Published date: 27 September 2022
• Subject Matter: Employment and HR, Employee Rights/ Labour Relations
• Law Firm: Venable LLP
• Author: Mr Robert Ames, Karel Mazanec and Imani T. Menard

In a recent 3-2 decision titled Tesla, Inc., the National Labor Relations Board (NLRB) ruled that workplace policies restricting the wearing of union insignia or apparel are presumptively unlawful, even if those policies are neutral on their face'absent "special circumstances." In so doing, the NLRB expressly overruled its prior decision in Wal-Mart Stores, Inc., which held that the so-called special circumstances test applied only when an employer completely prohibited any display of union insignia and permitted employers to impose certain size and appearance restrictions on union insignia based on less compelling employer interests. The NLRB's majority's opinion in Tesla concluded that Wal-Mart was not only inconsistent with the Supreme Court's holding¹ that employees have a protected right to display union insignia under Section 7 of the National Labor Relations Act ,² but also that Wal-Mart ignored decades of NLRB precedent finding that any limit on the display of union insignia is presumptively unlawful. Accordingly, the Tesla majority proclaimed that it was "reaffirming" 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." In light of the NLRB's new guidance, it is imperative that employers review their workplace dress code policy to ensure it remains lawful under the special circumstances test detailed in Tesla.

Background on the Tesla Decision

Tesla maintained the following team wear policy for its production associates working at the General Assembly facility at its Freemont, California manufacturing plant:

Team Wear: It is mandatory that all Production Associates and Leads wear the assigned team wear.

• On occasion, team wear may be substituted with all black clothing if approved by the supervisor.
• Alternative clothing must be mutilation free, work appropriate and pose no safety risks (no zippers, yoga pants, hoodies with hood up, etc.)

For production associates, the team wear consisted of black cotton shirts with Tesla's logo and black cotton pants with no buttons, rivets, or exposed zippers. During a United Auto Workers (UAW) organizing campaign at the General Assembly facility, employees, including production associates, began wearing black cotton shirts that had a small logo with the UAW's campaign slogan'"Driving a Fair Future at Tesla"'on the front and a larger logo with that slogan and "UAW" on the back.

Concurrently...