9/12/22: NLRB Decision Means it is Time to Review Uniform Policies

September 12, 2022

By Nicole Elgin

In August, the National Labor Relations Board (NLRB) issued a decision in Tesla, Inc., 370 NLRB (2022), that reinstated the rule that an employer’s uniform policy that restricts a display of union insignia is presumptively unlawful. Specifically, an employer’s uniform policy that, even implicitly, prohibits an employee from displaying union insignia (including union apparel) is unlawful, unless the employer can demonstrate special circumstances making the uniform policy necessary. The Board’s decision also overturns its 2019 WalMart Stores, Inc. decision regarding union insignia and uniforms.

Special circumstances are not easy to prove. The NLRB has found that an employer demonstrated special circumstances in limited situations, including: when the display of union slogans or apparel may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, unreasonably interfere with a public image that the employer has established, or when necessary to maintain decorum and discipline among employees. The Tesla decision means that now is a good time for employers to review their employee handbooks and uniform policies to make sure they are following the NLRB’s decision.

Click to access a PDF of this Electronic Alert.

For questions on compliance with these rules or other labor and employment matters, contact Nicole at 503-276-2109 or nelgin@barran.com.