Board Rules Workplace Policies Limiting Wearing Union Insignia, including Union Apparel, are Unlawful Absent Special Circumstances

Today, the National Labor Relations Board issued a decision in Tesla, Inc., in which the Board overruled Wal-Mart Stores, Inc., 368 NLRB No. 146 (2019), and reaffirmed longstanding precedent holding that employer attempts to impose any restriction on the display of union insignia, including by wearing union apparel, are presumptively unlawful, absent special circumstances that justify such a restriction. Wal-Mart Stores had previously held that the “special-circumstances” test applies only when an employer completely prohibits union insignia, and that lesser size-and-appearance restrictions on union insignia could be deemed lawful based on less compelling employer interests.

After consideration of public comment through a Notice and Invitation for Briefing, see Tesla, Inc., 370 NLRB No. 88 (2021), a Board majority consisting of Chairman McFerran and Members Wilcox and Prouty found that it was unlawful for Tesla to maintain a policy requiring employees to wear a plain black t-shirt or one imprinted with the employer’s logo, thus prohibiting employees from substituting a shirt bearing  union insignia. The Board reaffirmed that, consistent with Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), when an employer interferes in any way with employees’ right under Section 7 of the National Labor Relations Act to display union insignia, that interference is presumptively unlawful, and the employer has the burden to establish special circumstances that make the rule necessary to maintain production or discipline.  The majority then found that Tesla failed to establish special circumstances in this case. 

“Wearing union insignia, whether a button or a t-shirt, is a critical form of protected communication. 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,” said Chairman Lauren McFerran. “With today’s decision, the Board reaffirms that any attempt to restrict the wearing of union clothing or insignia is presumptively unlawful and – consistent with Supreme Court precedent – an employer has a heightened burden to justify attempts to limit this important right.”

Members Kaplan and Ring dissented.