NLRB Says Employers Can't Ban Union Clothing

Published on September 29, 2022

Decision could threaten all company uniform policies.

The National Labor Relations Board (NLRB) recently ruled that workplace dress codes and uniform policies that prevent employees from wearing pro-union apparel of any type, even if facially neutral, are presumed to be unlawful.

The 3-2 decision by the five-member board split down party lines and involved electric vehicle manufacturer Tesla Inc. The company had maintained a policy requiring employees to wear Tesla-provided or all-black clothing while at work.

When workers at the company’s Fremont, CA, facility began wearing pro-union apparel, Tesla instructed them to stop wearing such items in violation of its dress code. The United Auto Workers (UAW) challenged this ban and raised other issues as well. The NLRB regional counsel eventually brought a broader complaint against it in 2017 that also included this issue.

This case arose out of a UAW campaign to organize Tesla. Some 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 according to the company’s policy, they were permitted to wear union stickers on their clothing. Over the years various corporate workforce policies have come under attack depending on how the NLRB defines Section 7 of the National Labor Relations Act (NLRA), which protects the right of workers to communicate about their wages and working conditions (and which also extends to protecting nonunion workers).

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