NLRB Tightens Restrictions on Workplace Dress Codes

On Aug. 29, 2022, the National Labor Relations Board (the “Board” or “NLRB”) issued its decision in Tesla, Inc., overruling precedent that allowed employers to enforce facially-neutral dress codes to prohibit wearing non-conforming attire, including union insignia and union logos. Now, employers must allow employees to wear union attire absent a showing of “special circumstances.”

In Tesla, the electric car manufacturer had a mandatory dress code requiring its production associates to wear “assigned team wear,” consisting of a company-provided plain black cotton shirt or a plain black cotton shirt containing Tesla’s logo and black cotton pants with no buttons, rivets, or exposed zippers. Despite the facially neutral and clear rule, some production associates dispensed with the assigned team wear and started wearing black t-shirts with the phrase, “Driving a Fair Future at Tesla,” along with the logo for the United Auto Workers (“UAW”), during the union’s campaign to represent certain Tesla employees. Tesla banned the UAW shirts under its dress code policy, justifying the ban by claiming that it limited the risk of alternative clothing damaging vehicles under production. In addition, the standard team wear made it easier to keep track of employees working on the shop floor.

The NLRB held that Tesla unlawfully prohibited its employees from wearing shirts with the UAW’s logo. According to the Board, Section 7 of the National Labor Relations Act protects employees’ right to display union insignia and wear pro-union t-shirts even where the employer has adopted, as here, a facially neutral dress code detailing acceptable team wear.

This case reflects a continuing NLRB effort to reform employer workplace policies in favor of unions. A previous NLRB standard, set in 2019 in a case involving Wal-Mart, held that employers could restrict union apparel without proving special circumstances as long as they didn’t completely prohibit employees from wearing union insignia. The Tesla decision overruled Wal-Mart Inc., 368 NLRB No. 146 (2019), and reinstated an earlier standard, Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), which required employers that “interfere in any way” with an employee’s right to display union logos or icons to identify “special circumstances” justifying the interference.

As a result, and following the Board’s decision in Tesla, if an employer seeks to enforce a dress code or other work rule to prohibit an employee’s display of union logos, the employer must be prepared to explain what specific “special circumstances” exist to warrant the restriction. The Board, citing Komatsu America Corp., 342 NLRB 649, 650 (2004), noted that it has provided guidance in the past as to what special circumstances might justify a prohibition against employees wearing union insignia in the workplace, such as “when their display may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established, or when necessary to maintain decorum and discipline among employees.” However, as a practical matter, the Board rarely recognizes the exception outside of healthcare and retail operations. There’s little doubt that employers will be repeatedly second-guessed as to the sufficiency of their proof on the issue, as the Board did in Tesla. Accordingly, employers are well-advised to consult labor counsel when developing, and before enforcing, workplace rules to restrict the display or wearing of union logos or slogans.

Editor’s Note:  This article was written by guest authors Adam DoerrTerry Potter, and Jon Anderson of the law firm Husch Blackwell, and is published by AGC with permission. Adam Doerr and Terry Potter are members of the AGC Labor and Employment Law Council, a network of labor and employment lawyers who represent AGC members and chapters.

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