NLRB Reverses Course, Bars Rules Banning Wearing of Union Insignia

Author: Robert S. Teachout, Brightmine Legal Editor

September 2, 2022

Wearing union insignia, whether a button or a t-shirt, is a critical form of protected communication, the National Labor Relations Board (NLRB) has ruled, and any attempt to restrict the wearing of union clothing or insignia is presumptively unlawful. The 3-2 decision is the first reversal of a precedent set during the Trump administration since the Board majority shifted from Republican to Democratic appointees.

In Tesla, Inc., the Board stated that any limitation on the display of union insignia is presumptively a violation of employee rights under the National Labor Relations Act (NLRA), and held 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."

Tesla's dress code at its Fremont, California, general assembly plant required all production associates and leads to wear the assigned team wear. For associates, this consisted of a black cotton shirt with the Tesla logo and black cotton pants with no buttons, rivets or exposed zippers. Tesla provided all of the required team wear. The company did allow alternative clothing provided:

• The substituted team wear was all black and approved by a supervisor; and
• Alternative clothing was mutilation free, work appropriate and posed no safety risks (no zippers, yoga pants, hoodies with hood up, etc.).

During a union organizing campaign in 2017, some production associates started wearing black t-shirts with the United Auto Workers logo and the phrase "Driving a Fair Future at Tesla." Tesla banned the shirts under its dress code, claiming that its ban limiting alternative clothing reduced the risk of damaging vehicles on the production line and made it easier to track employees on the shop floor.

NLRB's Reasoning

In the NLRB's decision, Chairman Lauren McFerran and Board members David Prouty and Gwynne Wilcox cited the Supreme Court's 1945 decision in Republic Aviation Corp. v. NLRB that ruled employees have a protected right to display union insignia under Section 7 of the NLRA. The decision required employers to show that any interference with their employees' right to display union insignia is justified by special circumstances. In Stabilus, Inc. (2010), the Board held that employers cannot evade the "special circumstances" test by implementing a dress code requiring employees to wear uniforms or other designated clothing and precluding union insignia.

In 2019, a divided NLRB in Wal-Mart Stores, Inc. declined to apply the "special circumstances" test to evaluate the lawfulness of an employer's dress code policy that only partially restricted the display of union buttons and insignia. But in it's Tesla ruling, the Board majority specifically rejected the reasoning in Wal-Mart Stores.

Dissenting Members Marvin Kaplan and John Ring argued that the majority's decision made "all employer dress codes presumptively unlawful" by applying the same standard to dress codes that prohibit displaying union insignia and those that do not. They suggested that the result of the Board's opinion will be that employees "will be free to disregard employer dress codes by wearing noncomplying union apparel except in narrow circumstances that exist in theory but will rarely be found in fact."

But the Democratic majority countered that the Board has previously found special circumstances that justified employer restrictions on wearing union insignia, including when display could:

• Risk employee safety;
• Damage machinery or products;
• Aggravate employee conflict; or
• Unreasonably interfere with an established public image.

Further, the majority concluded, the ruling "does not implicate facially neutral employer dress codes that do not restrict or limit employees' right to display union insignia."