The National Labor Relations Board (NLRB) with its new Democrat majority, issued a major ruling on August 29, 2022, expanding employee rights to wear pro-union shirts and the like at work. "Wearing union insignia, whether a button or a t-shirt, is a critical form of protected communication," NLRB Chairman McFerran said in a statement. "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." The 3-2 NLRB majority found that Tesla violated the Labor Act by restricting employees from wearing such pro-union shirts, overturning a Trump-era precedent.
Tesla had a company policy requiring production workers to wear black shirts with the Tesla logo, or occasionally all-black shirts when a supervisor gave permission. The majority concluded that this policy interferes with worker's rights. Tesla had argued that its dress code was meant to prevent clothing from damaging cars, and the two-Republican dissenting members accused the majority of "distorting decades of precedent," and said the ruling "effectively declares illegitimate any employee uniform policy or dress code that prohibits employees from substituting any apparel for the required clothing."
In contrast, the new majority ruling states: "When an employer interferes in any way with its employees' right to display union insignia, the employer must prove special circumstances that justifies its interference." In the Trump-era NLRB ruling, the Republican majority did not require employers to show "special circumstances" to justify barring employees from displaying union insignia on the job, instead choosing to balance the rule's impact on workers' rights against the company's reasons for maintaining it. Thus, in that case Walmart's rule was upheld requiring non-company insignia to be "small" and "non-distracting," saying it met the company's desire to ensure that employees are identifiable while preserving workers' rights to show union support. The Republican dissenters to the current ruling would draw a line between employer policies that "prohibit the display of union insignia" and less restrictive, facially neutral, and non-discriminatory dress clothes like Tesla's.
Editor's Note: The new Democrat majority at the NLRB and its General Counsel are carrying out President Biden's promise to be the most "pro-union President" in history, and the current Tesla ruling allowing employees to wear union attire on the job is only a starter. Pro-union activists are going to use these principles to post pro-union materials not only on their persons, but on various places around employer facilities. Employers would be wise to have policies to limit such postings to certain locations or ban them entirely. This writer remembers litigating an NLRB case over 40 years ago in which pro-union activists put union stickers all over a company's tow trucks. Issues can come up dealing not only with whether employers have a no-posting policy, but also whether they have consistently enforced such policy.
Another issue that is expected to be addressed in NLRB case law is whether employers can restrict non-work communications on digital equipment. The Trump-era NLRB in 2019 ruled workers do not have a legal right to use work email and other IT systems to talk about union matters and other non-work issues. The rationale was that employers have a right to regulate the use of company property. Other cases are expected to arise dealing with access by union organizers to company property. At the same time, the NLRB General Counsel is trying to prohibit employers of the right to conduct so-called "captive audience" meetings in which employees are required to listen to "union-free" and other such presentations.
This article is part of our October 2022 Newsletter.
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