A recent 3-2 decision by the National Labor Relations Board highlights the limits of trying to suppress worker speech with overly broad “uniform” policies.
The case arose from union organizing activity at electric automaker Tesla’s factory in Fremont, California, where, in the spring of 2017, production workers began wearing black cotton shirts with a small United Auto Workers logo on the front and a large one on the back. Management claimed this violated the company’s uniform policy that required “team wear” that included black cotton shirts with the Tesla logo and black cotton pants with no buttons, rivets or exposed zippers.
Before workers started wearing the UAW logos, workers often wore shirts that weren’t black or with logos unrelated to Tesla. But the company allegedly started enforcing the uniform policy more strictly when workers sported the union logos.
Ultimately supervisors threatened to send two workers home for wearing union clothing. The workers challenged this decision as an unfair labor practice.
The NLRB ruled in the workers’ favor, citing longstanding legal precedent that it is “presumptively unlawful” for employers to restrict union clothing without special circumstances that justify the ban. In this case, the board ruled, Tesla made no showing of such special circumstances.
In light of this ruling, it’s a good idea for employers to talk to a labor attorney to review any written dress code policies to ensure they’re not violating employees’ rights to display union insignias. This ruling – which reversed an earlier ruling involving Wal-Mart – is also a sign that the NLRB is taking a pro-labor stance in these types of disputes, which is all the more reason to consult with a local lawyer.