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We Need to Talk About Your Flair: NLRB Requires “Special Circumstances” for Prohibiting Union Insign We Need to Talk About Your Flair: NLRB Requires “Special Circumstances” for Prohibiting Union Insign

We Need to Talk About Your Flair: NLRB Requires “Special Circumstances” for Prohibiting Union Insignia

After being ordered by their supervisors to either change out of their pro-union t-shirts or be sent home, employees challenged automotive manufacturer Tesla’s “team wear” policy as interfering with their rights under the National Labor Relations Act. In deciding for the employees and ordering Tesla to rescind its policy, the National Labor Relations Board majority wrote, “[W]hen an employer interferes in any way with its employees’ right to display union insignia, the employer must prove special circumstances that justify its interference.” However, the decision’s reach does not stop at union insignia, but extends to other forms of protected workplace speech as well.

It was scarcely more than two years ago that a divided Board upheld a similar dress code without applying the “special circumstances” test first established by the Board in the 1945 case, Republic Aviation Corp. v. NLRB. In the 2019 Wal-Mart Stores, Inc. decision, the Board held that, because Wal-Mart’s policy was facially neutral and non-discriminatory, it was not presumptively invalid. The current Board—also divided—overruled Wal-Mart, stating that the decision had “ignored decades of board precedent.” In contrast, the current Board held that any policy that would ban union insignia on apparel must pass the “special circumstances” test, even if the policy is enforced in a consistent and non-discriminatory manner. According to the Board, its overruling of the Wal-Mart decision is retroactive. 

The examples the Board gave of “special circumstances” that would justify interference (i.e., outweigh employees’ right to wear the insignia) were limited to legitimate safety risks. The justification that Tesla asserted (that clothing other than that specified in the team wear policy may “mutilate” the unfinished vehicles being assembled by the employees) did not suffice, given evidence that Tesla supervisors had been lax in enforcing the policy up until the employees sported pro-union t-shirts. Likewise, neither of the justifications Wal-Mart had proffered in its case—enhancement of the customer’s experience and theft prevention—are likely to pass muster post-Tesla. Indeed, the Board mentioned just one “limited exception” where employees do not have the “presumptive right” to wear union marks or messages as they do in other spaces, that being immediate patient care areas in health care facilities.

Importantly, the Board indicated that its ruling is not restricted to union-related insignia, but instead applies to all messages that relate to a term or condition of employment. It referenced past decisions where messages not related to a union were found to be protected, such as a “Fight for $15” pin supporting an increase in the minimum wage, a button with a statement opposing forced overtime, and a t-shirt with a message critical of the employer’s new performance program. As such, enforcement of no-insignia dress codes could be challenged and ultimately seen by the Board as the exercise of concerted activity protected by the NLRA where the ban ends up prohibiting messages pertaining to working hours, compensation, employee benefits, performance, safety, or general working conditions. In that vein, it is conceivable that slogans on clothing or other attire relating to social justice issues or expressing interest in reproductive rights benefits could be viewed as protected activity. 

Under the Tesla ruling, dress code policies prohibiting any and all insignia or messages may be challenged and, if special circumstances are not proven, determined to be unlawful. In the wake of Tesla, employers should examine their dress code policies and make any necessary revisions to conform with the Board’s ruling. In the event an employee displays insignia or messages on their work attire, consultation with counsel on whether the message might be viewed as relating to the terms or conditions of employment is likewise advised in order to avoid costly interference claims.

Germaine Winnick Willett is a member of Ice Miller LLP’s Workplace Solutions Group. She and Ice Miller’s other labor and employment attorneys assist employers faced with employment discrimination, harassment, retaliation, wage and hour, contract, and other employment-related issues, draft employment policies, and provide advice and counsel regarding employer investigations. For additional information, contact Germaine at (317) 236-5993 or or any member of Ice Miller’s Workplace Solutions Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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