NLRB Reaffirms Test Set Forth in Republic Aviation With Respect to Employees’ Right to Display Union Insignia Under the NLRA
Recently, in Tesla, Inc., the National Labor Relations Board (NLRB) held that Tesla had violated the National Labor Relations Act (NLRA) by banning workers from wearing pro-union attire, and reaffirmed the long-standing precedent established by the Supreme Court in Republic Aviation Corp. and its progeny, holding that when an employer attempts to impose any restriction on a worker’s right to display union insignia, the employer must prove “special circumstances” justifying the restriction.
By way of background, Tesla manufactures electric vehicles at a facility in Fremont, California, where they are assembled by production associates in General Assembly (“GA”). Tesla’s team-wear policy requires its production associates to wear black cotton shirts with the company logo or plain black T-shirts, along with black cotton pants. In the spring of 2017, there was a union organizing campaign, during which the associates began to wear black shirts with pro-union insignia as opposed to team wear. Shortly after the workers had started wearing the pro-union apparel, Tesla began to strictly enforce its team-wear policy, which it had not done previously and which prohibited workers from wearing the black pro-union shirts rather than the required team-wear shirts. Pro-union insignia, however, was not banned completely, as the associates were permitted to wear union stickers on their team-wear shirts.
The union’s organizing campaign ultimately failed, and the union challenged the ban of pro-union apparel, which led to an NLRB complaint being filed against Tesla. In September 2017, a hearing on the complaint was held before an administrative law judge, during which Tesla production managers testified that the purpose of the team-wear policy was to both assist in “visual management,” i.e., the ability of managers to determine that employees are in their assigned areas of the GA, and lower the risk of an employee’s clothing “causing a mutilation” to a vehicle. The managers, however, did not cite any examples of a union shirt actually causing damage to a Tesla vehicle and provided no evidence of a “mutilation” risk. Accordingly, the judge found Tesla had violated Section 8(a)(1) of the NLRA by maintaining the policy, because Tesla had failed to show the policy was justified by “special circumstances” as required by Republic Aviation. The issue went to the full Board for further review.
After considering public comment, the Tesla Board found that the company’s team-wear policy interfered with Tesla workers’ protected rights to display union insignia. The Board reaffirmed that, under Republic Aviation and its progeny, the team-wear policy was “presumptively” unlawful and found Tesla had not demonstrated the “special circumstances” needed to justify its restrictions on pro-union apparel. In so holding, the Board rejected Tesla’s position that the team-wear policy lowered the risk of damage to vehicles or was needed to aid in visual management, noting that three Tesla managers had testified they were not aware of any situation where the pro-union shirts had caused damage to a vehicle, and none of the managers had explained how that could even happen. The Board also rejected Tesla’s argument that the policy was tailored to meet Tesla’s interest in visual management, given testimony that visual management could be maintained provided the production associates wore black T-shirts, distinguishing them from other workers in the GA (who wore shirts of different colors, based on position held), and regardless of whether or not they were union shirts.
Notably, the Board overruled its prior 2019 holding in Wal-Mart Stores, Inc., where it found the “special circumstances” test applies only when an employer completely prohibits union insignia as opposed to imposing less restrictions, such as limiting the size and appearance of such insignia.
The Tesla decision provides less leeway for employers to ban or restrict union apparel or insignia and may encourage unions to file charges with the NLRB against employers who prohibit or restrict employees from wearing union attire at work. In view of this holding, employers should carefully review their dress code and other applicable policies.
For answers to any questions regarding this blog, please contact an attorney in the Gibbons Employment & Labor Law Group.