The National Labor Relations Board ruled on August 29, 2022 that workplace policies restricting or limiting employees’ wearing of union apparel are unlawful unless the employer can demonstrate the existence of “special circumstances” justifying the restrictions. The Board’s decision throws into doubt the legality of employer uniform and dress code policies among employers large and small, nationwide.
In Tesla, Inc., 371 NLRB No. 131, the Board majority found that it was unlawful for Tesla to maintain a policy requiring employees to wear a plain black T-shirt or one imprinted with the company’s logo, thereby implicitly prohibiting employees from substituting a shirt bearing union insignia. According to the facts set forth in the decision, Tesla maintained a “team-wear” policy requiring certain production employees to wear black cotton shirts with the company’s logo and black cotton pants with no buttons, rivets or exposed zippers. The Board majority reasoned that the “team-wear” policy operated as an implicit prohibition on employees wearing union shirts and, therefore, constituted an unfair labor practice under the National Labor Relations Act. In reaching its decision, the Board found that the long-standing rule prohibiting employers from barring employees from wearing pins, buttons or hats bearing union insignia or logos extended to clothing worn by employees.
The upshot of the Board’s decision is that any dress code or uniform policy that requires employees to wear anything in particular, such as a jacket with the employer’s logo or a particular kind of shirt, necessarily imposes an “implicit” restriction on wearing anything else, including union apparel. Indeed, according to Board Chairman Lauren McFerran: “Wearing Union insignia, whether a button or T-shirt, is a critical form of protected communication. With today’s decision, the Board reaffirms that any attempt to restrict the wearing of union clothing or insignia is presumptively unlawful and . . . . an employer has a heightened burden to justify attempts to limit this important right.” (Emphasis added).
With regard to what “special circumstances” might justify limits on employees’ rights to wear union insignia or apparel at work, the Board claimed that employers could meet their “heightened burden” by demonstrating that the display of union insignia or apparel “may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established, or when necessary to maintain decorum or discipline among employees.” However, the “heightened burden” to demonstrate the existence of such “special circumstances” is placed squarely upon employers, to be decided on a case-by-case basis. Furthermore, the Board majority made clear that an employer cannot meet its burden simply by establishing a uniform dress code policy that is consistently enforced – it is not enough that the employer desires that its employees all dress alike, or wear apparel without logos or insignia other than its own.
Moreover, according to the Board members dissenting from the decision, the “special circumstances” identified may exist in theory but will rarely be found in fact. The dissenting Board members offered this gloomy conclusion: “In other words, an employer’s right to maintain a dress code and insist on compliance with it is now the exception, not the rule – and even the exception may prove illusory.”
As a consequence of the Board’s decision, seemingly any dress code or uniform policy that does not permit employees to wear union apparel is presumptively unlawful, unless the employer can demonstrate special circumstances justifying it. In this regard, the exception whereby an employer can show that union insignia would “unreasonably interfere with a public image that the employer has established” may provide some shelter for employers, yet not a true safe harbor, inasmuch as the Board has indicated that such determinations must be made on a case-by-case basis. In addition, certain employers may not be affected by this decision, at least to the extent that they continue to follow existing Board precedent that allows for specific prohibitions on union insignia or apparel, including prohibitions on healthcare employees working in patient-care areas.
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