NLRB Rules Tesla Must Allow Workers to Wear Union Insignia on Shirts
On Aug. 29, the National Labor Relations Board (NLRB) ruled in a 3-2 decision that auto manufacturer Tesla violated federal labor law when it enforced a company policy that required employees to wear shirts with printed Tesla logos on the job while prohibiting them from wearing shirts with union insignia.
According to workers at the automaker’s Fremont, Calif. facility, they received warnings that they would be sent home for wearing black cotton shirts displaying the union’s campaign slogan during a 2017 union organizing campaign. Tesla requires employees at the plant to wear assigned team wear consisting of black pants and a black cotton shirt with the company’s logo, but employees are allowed to substitute team wear with all black clothing if it is “mutilation-free,” work appropriate, and poses no safety hazards. According to workers at the plant, while Tesla previously did not prevent workers from wearing other clothing with logos, it “began to strictly enforce” its policy amid the organizing campaign, requiring employees to cover non-Tesla insignia with tape.
The NLRB found that Tesla’s restrictions violated its precedent in Republic Aviation, where it found that employer limitations on the display of union insignia are invalid unless an employer can demonstrate special circumstances that justify its action. The Board agreed with an administrative law judge’s finding that Tesla failed to do so.
In its decision, the NLRB overruled Wal-Mart Stores, Inc., and reaffirmed 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.
Please contact Trey Clark or any member of Phelps’ Labor and Employment team if you have questions or need advice or guidance.
