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NLRB Abandons Trump Era Decision Thereby Expanding Employee Rights to Wear Pro-Union Shirts at Work.

NLRB Abandons Trump Era Decision Thereby Expanding Employee Rights to Wear Pro-Union Shirts at Work

August 30, 2022

On August 29, 2022, the National Labor Relations Board (NLRB or Board) ruled that Tesla committed an unfair labor practice by prohibiting its employees from wearing shirts displaying support of the United Auto Workers Union (UAW).  The ruling overturned a Trump-era decision which unsurprisingly held a more employer-friendly view.

Tesla restricts its employees to wearing black shirts with the company logo or, when given permission, a plain black shirt.  The company argued that it only intended the dress code to keep the clothing from harming the integrity of the product and to help managers “easily determine that employees are in their assigned work areas” of the company’s factory.  At the Freemont, California factory in question, managers allegedly told employees wearing UAW logo shirts to change their shirt or be sent home.  Nonetheless, Tesla did allow employees to wear union stickers on their uniforms.

On Monday, the Board ordered Tesla to stop enforcing which it termed an “overly broad” policy that prevented production workers from wearing shirts with union logos.  The Board majority determined that Tesla failed to establish any “special circumstances” that would allow banning the UAW logo clothing such as proving the logo could damage the vehicles during production if contact occurred.  As stated by the Board, “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.”

The 3-2 decision overturned a 2019 ruling on Walmart dress code policies that allowed the store to limit (but not completely ban) employees from wearing pro-union insignia in the workplace.  “Wearing union insignia, whether a button or shirt is a fundamental form of protected communication.”

The NLRB Chair, Lauren McFerran claimed that this decision does not represent a new standard or policy, but instead reaffirms previous precedent consistent with Supreme Court rulings prior to the 2019 Walmart case.  That precedent holds that any attempt to restrict the wearing of union clothing or insignia is “presumptively unlawful and the employer has a heightened burden to justify attempts to limit this important right.”

Because of this shift by the NLRB, employers should evaluate and if needed, update their uniform and dress code policies and practices to be in the best position possible to defend against a claim such as that leveled against Tesla.  As always, we are here to help.

Peter Bennett (pbennett@thebennettlawfirm.com)
Rick Finberg (rfinberg@thebennettlawfirm.com)
Pawel Binczyk (pbinczyk@thebennettlawfirm.com)

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