NLRB Says Employers Must Allow Employees To Wear Pro-Union Clothing Unless “Special Circumstances” Exist (US)Daniel Pasternakon August 30, 2022 at 8:13 pm Employment Law Worldview


On August 29, 2022, the National Labor Relations Board (NLRB or Board) overturned prior NLRB precedent and announced a new and highly restrictive standard for employers seeking to establish and enforce workplace uniform policies and dress codes.

A large manufacturer maintained a dress code policy, which mandated that employees wear “assigned team wear” consisting of a black t-shirt bearing the employer’s logo and black pants. In 2017, in connection with a union organizing campaign, some employees began wearing different black t-shirts bearing the logo of a labor union. The employer banned these shirts, citing its dress code policy. It did, however, permit employees to wear union stickers on their assigned team wear. Nonetheless, unfair labor practice charges were filed with the Board alleging that prohibiting the union t-shirts violated the employees’ right under Section 7 of the National Labor Relations Act (Act) to display union insignias on their clothing at work.

In a divided opinion, a three-member majority of the NLRB (Chairman McFerran and Members Prouty and Wilcox) overruled prior Board precedent and held that an employer policy or rule that interferes in any way with employees’ right to display union insignia is presumptively unlawful. To overcome that presumption, the employer must demonstrate “special circumstances” – such as a risk to employee safety or of damage to employer products or equipment, or of unreasonable interference with an established public image – to justify that interference.

The employer argued it had legitimate reasons – “special circumstances” – supporting its mandatory dress code, specifically, preventing other apparel from damaging the employer’s product during the manufacturing process, and visually determining whether employees were in their assigned work areas. The Board majority rejected those arguments, concluding there was no evidence the t-shirts bearing union logos presented any greater risk of damage to the employer’s product that the approved t-shirts or that employees wearing a different black t-shirt than the approved t-shirt impaired the employer’s ability to manage its employees. Accordingly, the Board majority ruled that the employer’s team wear policy, which implicitly barred wearing any apparel not bearing the employer’s logo, including apparel bearing a union logo, was unlawful.

Two NLRB members (Members Ring and Kaplan) dissented, pointing to what they deemed extensive flaws in the majority’s reasoning and criticizing the majority’s distortion of “decades of precedent teaching that employee rights and legitimate employer interests must be balanced.” The dissenters faulted the majority’s treatment of the employer’s facially neutral dress code – one that did not on its face discriminate against union apparel – the same as a policy that did directly prohibit union apparel, noting that “declar[ing] illegitimate any employer uniform or dress code that prohibits employees from substituting union apparel for required clothing” means that “virtually all dress codes could be so construed.” The dissenters additionally panned the majority’s explanation of what will constitute valid “special circumstances” warranting a prohibition on wearing union apparel or insignia. In their view, the majority’s interpretation creates such conditions only in theory and that qualifying circumstances “will rarely be found in fact,” meaning that, under the majority’s new standard, “an employer’s right to maintain a dress code and insist on compliance with it is now the exception, not the rule – and even the exception may prove illusory.”

The big question coming out of this decision is the practical one: can employers require that employees wear uniforms or comply with employer-mandated dress codes? Although the majority goes to pains (over the course of 19 pages) to try to explain why its decision does not abolish employers’ ability to maintain such policies, as the dissenters explained, “[t]he result of [the majority’s] holding is that, in effect, no employer may lawfully maintain any dress code unless that employer can demonstrate special circumstances.”

Going forward, two things are nearly certain. First, expect a wave of new unfair labor practice charges alleging that employers are maintaining unlawful uniform and dress code policies or that employers are unlawfully enforcing those policies to prohibit union apparel or insignia without the requisite “special circumstances.” Second, anticipate an appeal of the NLRB majority’s decision, in which the employer, taking its cue from the dissent, likely will argue that “[n]othing in the Act suggests that Congress intended to make all employer dress codes presumptively unlawful.” We’ll monitor further developments and update accordingly.

Employment Law Worldview

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