NLRB reverses course on Trump-era rule on Union clothing bans » CBIA

The following article was first published on Shipman & Goodwin Information Page. It is reposted here with permission.


On August 29, 2022, the National Labor Relations Board overturned Trump-era case law and dramatically limited when employers can restrict union badges on clothing in the workplace.

The case, Tesla, Inc. 370 NLRB No. 131 (2022), arose after Tesla banned employees at a manufacturing plant from wearing clothing bearing union badges during a union organizing drive.

Tesla maintained a “team dress policy” that required production associates to wear black clothing printed with the Tesla logo.

Tesla said its dress code protects vehicles by eliminating zippers, buttons and other damage-causing items.

He also claimed that his dress code helps with the “visual management” of employees by having each employee classification wear a different color.

Production associates were prohibited from wearing clothing with any other logo or emblem, although they were sometimes allowed to replace assigned Tesla clothing with all-black clothing without zippers or other damage-causing features.

Special circumstances test

During a 2017 union organizing campaign, some employees instead wore black shirts with union logos or slogans.

Replacement garments had no zippers or other damage-causing features.

When Tesla began enforcing its team wear policy and banned union badge wear, the union and some employees filed a complaint with the NLRB, claiming that Tesla had interfered with employees’ rights to express their support for a union.

In its ruling, the NLRB relaunched its pre-2019 “special circumstances” analysis to assess employers’ dress codes.

In the new Tesla ruling, the NLRB expressly and retroactively reversed its 2019 ruling on Wal-Mart stores.

According to this analysis, employers are allegedly violating national labor relations law when they restrict the display of union badges on employee clothing without establishing “specific circumstances” to justify such a restriction.

The NLRB previously replaced this analysis with a less stringent standard in its 2019 Wal-Mart Stores, Inc. decision, but in the new Tesla decision, the NLRB expressly and retroactively canceled Wal-Mart Stores.

The NLRB has ruled that this “special circumstances” test must be met even when, as here, the employer has a seemingly neutral policy requiring its employees to wear uniforms or other designated clothing.

The NLRB noted that special circumstances have been established by employers in past cases where the display of union badges would compromise employee safety, damage machinery or products, exacerbate employee dissension or unreasonably interfere with the public image of the employer.

Results

In this case, the NLRB concluded that the reasons Tesla cited for its team-wearing policy — to avoid damage to vehicles and to facilitate visual management — did not constitute special circumstances.

With respect to the first reason, the NLRB noted that Tesla executives admitted that clothing bearing the union badge did not damage any vehicles.

Regarding the second reason, the NLRB pointed out that clothing bearing the union badge did not interfere with visual management as long as employees wore the correct color of clothing.

While the facts of this case are somewhat unique, the NLRB clearly intended its decision to apply broadly to employers.

The NLRB clearly wanted its decision to apply broadly to employers.

This is evidenced in his discussion of Tesla’s defenses.

Tesla argued that it was not banning all union badges, only badges sewn onto clothing, as employees were allowed to wear union stickers on their clothing.

The NLRB dismissed this fact as irrelevant. He said that the NLRA allows employees to use various means of communication to show their support for a union and that an employer is not allowed to choose the means of communication available to employees, even if the two means are just as effective.

Tesla also argued that its team dress policy was non-discriminatory because it prohibited all non-work attire, not just union badges.

The NLRB rejected this argument, finding that a dress code would violate the NLRA if it prevented employees from displaying union badges, even if the policy was applied neutrally to all non-compliant clothing and did not specifically target workers. union badges.

Lessons for employers

The Tesla decision therefore provides multiple caveats for employers.

A face-neutral dress code isn’t necessarily foolproof.

An employer will still have to determine if there are “special circumstances” to justify any restrictions on union badges.

The NLRB is ready and willing to affirm a broad interpretation of the rights of NLRA employees to communicate their support for a union.

An employer should not start enforcing a dress code only after the start of an organizing campaign.

Employers should be careful about taking steps to limit such communication, even in situations unrelated to clothing.

An employer should not start enforcing a dress code only after the start of an organizing campaign.

While this factor was not the focus of the NLRB’s analysis, the timing of Tesla’s decision to step up enforcement could be viewed as suspicious.

In light of this ruling, employers should take care in creating and implementing any uniform or dress code policies.

Employers should consult legal counsel before taking disciplinary action in response to suspected violations of these policies, particularly when employee apparel references labor organizations, unionization, or other conditions of employment.


About the authors: Christopher Engler is a lawyer with Shipman & Goodwin and practices labor and employment law. Sarah Boxer is a partner at Shipman & Goodwin. She is a member of the firm’s employment and labor law and education law practice groups. Jarad Lucan is a partner at Shipman & Goodwin and chair of the firm’s employment and labor practice group.

Denise W. Whigham