In a major decision issued on August 29, the National Labor Relations Board found Tesla to have violated the law by restricting employees’ right to wear union t-shirts at work. The decision orders Tesla to cease and desist from maintaining and enforcing a work attire policy that prohibits employees from wearing black union shirts, to rescind that policy, to notify all current employees that the policy has been rescinded, and to post a notice in the plant stating Tesla will comply with the law and not prohibit black union shirts.
In making the decision, the Board explained that union insignia are a “critical form of protected communication” under the NLRA used “to support organizing campaigns, demonstrate solidarity, and advocate for issues during collective bargaining.” The decision also applies beyond union insignia to other slogans that concern terms and conditions of employment.
The decision reverses a Trump-era NLRB decision that had strengthened the hand of employers in their ability to restrict worker expression on the shop floor. Unfortunately, the decision comes more than four years after workers and the UAW filed unfair labor practice charges with the NLRB.
Section 7 of the National Labor Relations Act (the Act) guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, today's decision reaffirms this right" noted United Federation LEOS-PBA Organizing Director Steve Maritas.
Board Rules Workplace Policies Limiting Wearing Union Insignia, including Union Apparel, are Unlawful Absent Special Circumstances
August 29, 2022
Today, the National Labor Relations Board issued a decision in Tesla, Inc., in which the Board overruled Wal-Mart Stores, Inc. 368 NLRB No. 146 (2019), and reaffirmed longstanding precedent holding that employer attempts to impose any restriction on the display of union insignia, including by wearing union apparel, are presumptively unlawful, absent special circumstances that justify such a restriction. Wal-Mart Stores had previously held that the “special-circumstances” test applies only when an employer completely prohibits union insignia, and that lesser size-and-appearance restrictions on union insignia could be deemed lawful based on less compelling employer interests.
After consideration of public comment through a Notice and Invitation for Briefing, see Tesla, Inc., 370 NLRB No. 88 (2021), a Board majority consisting of Chairman McFerran and Members Wilcox and Prouty 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 employer’s logo, thus prohibiting employees from substituting a shirt bearing union insignia. The Board reaffirmed that, consistent with Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), when an employer interferes in any way with employees’ right under Section 7 of the National Labor Relations Act to display union insignia, that interference is presumptively unlawful, and the employer has the burden to establish special circumstances that make the rule necessary to maintain production or discipline. The majority then found that Tesla failed to establish special circumstances in this case.
“Wearing union insignia, whether a button or a t-shirt, is a critical form of protected communication. For many decades, employees have used insignia to advocate for their workplace interests – from supporting organizing campaigns, to protesting unfair conditions in the workplace – and the law has always protected them,” said Chairman Lauren McFerran. “With today’s decision, the Board reaffirms that any attempt to restrict the wearing of union clothing or insignia is presumptively unlawful and – consistent with Supreme Court precedent – an employer has a heightened burden to justify attempts to limit this important right.” Members Kaplan and Ring dissented.
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