Employers cannot prohibit workers from wearing union-related apparel or logos on their clothing “absent special circumstances that justify such a restriction,” the National Labor Relations Board ruled Monday.
The decision was issued in Tesla, Inc., in which the board overruled a 2019 decision involving Wal-Mart Stores and reaffirmed precedent.
Wal-Mart Stores previously had 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.
But the NLRB said that employer attempts to impose any restriction on the display of union insignia, including by wearing union apparel, are presumed unlawful absent special circumstances that justify such a restriction.
“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,” NLRB Chairman Lauren McFerran said in a statement. “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.”
McFerran, along with members David Prouty and Gwynne Wilcox, signed the decision. Two board members, Marvin Kaplan and John Ring, dissented.
