NLRB Prohibits Dress Code Restrictions for Wearing Union Insignia
All Employers subject to the NLRA
August 29, 2022
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In Tesla, Inc., the National Labor Relations Board (NLRB) recently stated that employers cannot take any action to prevent employees from displaying union insignia in connection with dress code and uniform policies, absent special circumstances. Generally, the National Labor Relations Act (NLRA) protects employees’ ability to wear union insignia at work, like buttons and logos, except if there are “special circumstances” to justify the restriction. However, in 2019, in Wal-Mart Stores Inc., the NLRB said that the “Boeing standard” should be used, rather than the special circumstances test, to determine an NLRA violation for evaluating employer policies that only partially restrict the display of union insignia.
Here, the NLRB rejected the distinction between complete and partial uniform restrictions. Specifically, employees were permitted to wear black shirts either with or without the Tesla logo. This limitation impliedly prohibited employees from wearing union shirts instead of the required black shirts but did not prevent employees from wearing union stickers or buttons on their black shirts. The NLRB cited a 2010 opinion saying that employers cannot avoid the “special circumstances” test just by requiring employees to wear uniforms, which prevents them from wearing clothing with union insignia. Ultimately, the NLRB rejected the “Boeing standard” and reaffirmed the “special circumstances” standard under the NLRA.
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