NLRB re-writes law on employees displaying union logos at work

Tesla's General Assembly plant maintained the following dress code: "It is mandatory that all Production Associates and Leads wear the assigned team wear." For production associates, "team wear" consists of a black cotton shirt with the Tesla's logo and black cotton pants with no buttons, rivets, or exposed zippers, all which Tesla provides.

In the Spring of 2017, however, certain production associates started wearing black t-shirts with the phrase, "Driving a Fair Future at Tesla," along with the logo for the United Auto Workers.

Tesla banned the UAW shirts under its "Team Wear" policy, claiming that the ban limited the risk of alternative clothing damaging vehicles on the production line and made it easier to keep track of employees on the shop floor.

In a split 3-2 decision, the NLRB held that Tesla unlawfully prohibited its employees from wearing shirts with the UAW's logo. 

Section 7's protection of employees' right to display union insignia extends to pro-union T-shirts, and the Board will find that an employer's interference with such a display of union insignia violates the Act unless the employer proves special circumstances that outweigh the employees' right to wear the insignia and that its prohibition is narrowly tailored to address those circumstances. … 

[T]he special circumstances test allows employers the opportunity to show that restrictions on employees’ display of union insignia that result from uniform policies or dress codes—and would otherwise be unlawful—are justified based on the specific circumstances existing in their workplaces 

What are examples of "special circumstances" that might justify a prohibition against employees wearing a union insignia in the workplace? The Board listed several.

• A risk to employee safety
• The potential to damage machinery or products
• The exacerbation of employee dissension
• The unreasonable interference with an established public image
• When necessary to maintain decorum and discipline among employees
  

This case is the beginning of the NLRB re-writing employer rules on workplace conduct. It's also a big deal. There is nothing facially discriminatory about a workplace policy that says, "Employees must wear a certain uniform while at work." And as long as that policy is uniformly applied and not used to target pro-union messages or insignia, an employer should be able to maintain and enforce that policy against everyone. Here, however, the NLRB says that the employer must provide special treatment to pro-union messages unless it can prove "special circumstances." I don't buy it, but that's now "the law."

If your employees want to wear pro-union insignia on their clothing, it's best to check with your labor counsel before banning it, disciplining them, or otherwise taking action pursuant to facially neutral dress code policy. The law has now changed and it's not in employers' favor.