NLRB Weighs In On Dress Codes And Union Apparel
The National Labor Relations Board (the “NLRB” or the “Board”) recently issued a decision on an issue that will likely seem counter-intuitive to many employers: namely, the presumptive right of employees – even non-unionized employees – to wear union apparel to work.
The Board’s August 29, 2022 decision involving automobile manufacturer Tesla, Inc. (“Tesla” or the “Company”) reflects a restrictive standard under the federal labor laws relating to employers’ rights to enforce employee dress code policies. The decision also signals a departure from the somewhat more employer-friendly standard articulated by the Trump-era Board.
Tesla maintained a “Team Wear” policy at its manufacturing facility in Fremont, California. The policy applied only to employees who work in general assembly – that is, employees involved in the process of installing parts in and on the bodies of vehicles.
Specifically, the Team Wear policy required production associates to wear black cotton shirts with the Tesla logo and black cotton pants with no buttons, rivets or exposed zippers. This clothing was supplied by the Company. Production leads and supervisors were required to wear red Tesla shirts, and line supervisors were required to wear white Tesla shirts.
With special permission, production associates were allowed to substitute a plain black shirt for the Tesla-branded shirt, provided that their clothing did not contain zippers, buttons, or any other embellishments that had the potential to damage the vehicles. However, production associates were prohibited from wearing clothing with any non-Tesla logo or emblem.
In 2017, in support of a union organizing campaign, some production associates wore black shirts with the logo of a labor union in place of Tesla’s logo. Tesla instructed employees that they were not permitted to wear the union-logo shirts under the Company’s Team Wear policy. The employees then filed an unfair labor practice charge with the NLRB, alleging that Tesla had violated their rights under the National Labor Relations Act (the “NLRA”) by prohibiting them from wearing the union-logo shirts at work.
The Board’s Decision
In response to the charge, Tesla argued that its Team Wear policy was consistent with established NLRB precedent permitting restrictions on employee’s rights to display union logos based on “special circumstances.” Tesla claimed that such special circumstances existed here, arguing that its dress code was put in place to (1) prevent non-standard apparel from damaging the vehicles during manufacturing, and (2) aid in identifying whether employee were in their work areas.
In a 3-2 decision, the Board rejected Tesla’s arguments, holding that there was no evidence that the union-logo shirts posed any more risk of damage to the vehicles than the Tesla-branded shirts, and that production associates could be identified just as easily in black union-logo shirts as they could in their black Tesla-branded shirts. Accordingly, the majority ruled that Tesla’s policy banning apparel with logos or emblems other than Tesla’s logo, including union logos, was unlawful.
The NLRB rested its decision on case precedents first articulated in the U.S. Supreme Court’s 1945 decision Republic Aviation v. NLRB, which established the right of employees to display union buttons or insignias absent “special circumstances,” such as safety hazards, risk of damage to the employer’s products or equipment, or interference with the employer’s public image. Consistent with Republic Aviation and subsequent decisions on this issue, the NLRB stated that employers presumptively violate the NLRA when they limit the display of union logos or insignias – even in the case of a facially neutral policy like Tesla’s Team Wear policy.
However, in Tesla, the NLRB also upended more recent precedent in this area of the law. The Board explicitly overruled the Trump-era Wal-Mart decision, in which the Board held that employers may limit the size and appearance of union buttons and other logos, even without a showing of special circumstances. Thus, Tesla’s argument that it allowed production associates to affix union stickers to their Tesla-branded team wear was unavailing. The NLRB opined that employees are legally entitled to show their support for a union using a variety of means, and that an employer may not choose which of those means are available to employees and which are not.
Implications For Employers
At a moment when unions are experiencing a resurgence across the nation, and as the Tesla decision underscores, it is important for all employers to be aware of the Board’s broad interpretation of the NLRA and its willingness to uphold employee protections related to organizing and advocating for their collective rights.
One key takeaway from Tesla is that all employers should exercise caution in drafting, implementing, and enforcing employee dress codes, in order to ensure that their employees’ rights to display union-related material are not unjustifiably curtailed.
Furthermore, an employer experiencing a union-organizing campaign should be especially cautious. In particular, an employer should not promulgate or start enforcing a dress code only after a union organizing campaign has begun, as doing so is very likely to be found unlawful.
Employers should exercise caution and consult with experienced labor counsel before adopting or enforcing employee dress codes, particularly when an issue arises relating to union advocacy or other terms and conditions of employment.
* * *