Your Neutral Uniform Policy May Violate the NLRA

By Caroline Kane, Jason Patterson and Jennifer Dunn - Franczek P.C.

September 7, 2022

In Tesla Inc., the National Labor Relations Board (“Board”) recently reversed a 2019 decision in Wal-Mart Stores Inc. that gave employers leeway when adopting neutral non-discriminatory dress codes. Instead, the Board applied the standard in the Supreme Court’s Republic Aviation decision, issued in 1945, and held that any policy that interferes with the right to wear union insignia is presumptively unlawful and an employer must articulate “special circumstances” to justify such restrictions.

Tesla’s Team Wear Policy and Union Campaign

This case arose in the backdrop of a union organizing campaign, when Tesla employees first wore black cotton shirts at work, with the union’s campaign slogan, “Driving a Fair Future at Tesla” on the front and a larger logo with the slogan and “UAW” on the back. Tesla strictly enforced its team wear policy. Employees could also wear plain all black clothing if approved by a supervisor. Although employees were not permitted to wear union shirts under the policy, they were permitted to wear union stickers on their clothing. The Union claimed that the team wear policy violated the National Labor Relations Act (“NLRA”) because it restricted the right to wear union insignia on shirts while at work.

The Board Applies the “Special Circumstances Test” and Finds Tesla’s Policy Unlawful   

Following Republic Aviation, the Board applied a “special circumstances test” that prohibited employers from placing restrictions on employees’ ability to wear union insignia absent special circumstances. In the 2019 Wal-Mart Stores, Inc., decision, the Board held that facially neutral uniform policies were not presumptively unlawful and should be analyzed according to the Board’s less restrictive balancing test for workplace rules. In Telsa, the Board overturned Wal-Mart Stores, Inc., and held that all restrictions on union insignia are presumptively unlawful absent special circumstances. In finding the policy unlawful, the Board rejected Tesla’s special circumstances arguments, including Tesla’s position that the policy aided in the visual management of employees, and lowered the risk of employee clothing causing mutilations to the vehicles. Practically, this decision makes clear that even facially neutral non-discriminatory dress codes are presumed unlawful.       

Practical Considerations

This decision likely raises more questions than answers for employers whose uniform policies have not been challenged. The following are key points to consider in the wake of the Board’s decision:

•  The Board cited examples of special circumstances that could conceivably justify uniform policies, while acknowledging that this is typically a fact-intensive analysis. These examples include the following: preserving the company’s public image; safety concerns; product quality concerns; and business interests in prohibiting certain slogans and messaging that is inflammatory. Many employers, particularly those with employees who interact with the public, may have already had such policies reviewed by the Board. In large part, those special circumstances likely continue to prevail under the Board’s pivot in Tesla.

•  This decision may have a particular impact on employers in industries without customer-facing employees. Absent articulable safety concerns in those particular industries, it likely will be difficult to establish special circumstances justifying restrictions on union insignia.

•  All employers should review their dress code and uniform policies and be prepared to explain the factors that justify any restrictions on the wearing of union insignia.

As always, if you have any questions, please contact a Franczek attorney.