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Employers – Be Prepared for More Union Apparel in the Workplace

By Evan Conde - Shawe & Rosenthal LLP

September 1, 2022

On Monday, August 29, 2022, the National Labor Relations Board issued its first precedent-shifting decision under the Biden administration, which will have the effect of permitting more apparel with union insignia in the workplace.

The Law on the Display of Union Insignia. An employer’s interference with an employee’s display of union insignia on their apparel is presumed to be unlawful, unless the employer can demonstrate “special circumstances” to justify the interference. Special circumstances are found when the display jeopardizes employee safety, equipment or product safety, or unreasonably interferes with a public image which the employer has established as part of its business plan. The Board had previously held in its 2019 Wal-Mart Stores decision that the “special circumstances” test applied only when an employer completely prohibited union insignia, and that certain size-and-appearance restrictions on union insignia could be lawful based on less compelling employer interests. However, the Board has now reversed itself in Tesla, Inc. to assert that the special circumstances test will apply to any restriction, and not just total bans.

Tesla’s Dress Code. In this case, Tesla’s team-wear policy required production associates to wear black Company-issued clothes or all-black clothing, while supervisors and inspectors wore red and white shirts.  During the UAW’s unionization drive in 2017, production associates began wearing black shirts that had a small union logo with the Union’s campaign slogan on the front, and a larger logo with the same slogan and a large “UAW” on the back.  A few months later, Tesla began to enforce its dress code by informing employees that the UAW shirt violated policy and employees would be sent home if they wore non-conforming shirts again.

The Board’s Decision. In its decision, the Board majority stated that display of union insignia has proven to be a critical form of protected communication, and reverted back to the presumption that employers break the law by limiting displays of union insignia without showing special circumstances.  Here, Tesla argued that special circumstances existed since the policy was intended to reduce the risk of damage to the vehicles from employee clothing and to provide ease of visual management of the production area. The Board rejected these arguments. It found that a single instance where a raised metal emblem caused damage to a vehicle was insufficient to justify a policy that “goes far beyond simply prohibiting employees from wearing shirts with metal emblems.” It further found that the employer’s interest in visual management was not impacted by whether the black shirt had a union logo or not.

Dissenting members Kaplan and Ring pointed out the differences between policies that specifically prohibit the display of union insignia, and those that are less restrictive, facially neutral, and nondiscriminatory like Tesla’s.  The dissent observed that, by disregarding this differentiation, the majority’s holding prohibits employers from “lawfully maintain[ing] any dress code unless that employer can demonstrate special circumstances.”

Lessons for Employers. Accordingly, employers should evaluate the circumstances which give rise to a need for a dress code.  If an employer cannot prove that a dress code that effectively prohibits union insignia is required for employee, equipment or product safety, or that the display of union insignia unreasonably interferes with the public image which the employer has established as a part of its business plan, the dress code will likely not survive the scrutiny set under the Board’s new approach.

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