Many employers do not like the idea of employees wearing pro-union shirts or buttons on the job. In the past, however, and particularly during the Obama Administration, the National Labor Relations Board (NLRB) gave employees a great deal of rights to wear union buttons and other buttons pertaining to concerted activities. More current issues concern the wearing of buttons for Black Lives Matter or other political buttons. 

Now, in a case involving Tesla, the NLRB has invited the public to submit briefs on the issue of whether the company violated the labor laws by prohibiting employees from wearing union shirts. An administrative law judge had ruled that Tesla's apparel policy was not justified by "special circumstances" to maintain production or discipline. Tesla argued that the special-circumstances standard did not apply because the employees had not been prohibited from wearing union stickers and hats, but were simply required to wear special "teamwear" Tesla shirts. A previous NLRB ruling during the Obama Administration had said employers cannot get around the special circumstances test by mandating uniforms or other clothing in the workplace that prevents employees from wearing apparel with union insignia.  

Thus, the three remaining Republican members of the NLRB asked for public comment on the appropriate standard for employers with a nondiscriminatory uniform policy that implicitly allows employees to wear union insignias. The deadline for filing such briefs was in March, and perhaps the existing Republican majority wants to issue a ruling before one of the Republican member's term expires in late August.

This is part of our August 2021 Newsletter.

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