Can you enforce your uniform policy, even if that means an employee can’t wear a union t-shirt? Earlier this month, in Tesla, Inc. v. NLRB, the Fifth Circuit looked at that very question and ruled for Tesla.

Let’s face it — from UPS employees and Hollywood screenwriters and actors to auto workers and college athletes — unions are fashionable this year. The number of workers who have gone on strike so far this year is 10 times the number of workers that went on strike in 2020 during the same period, and union popularity (if not membership) is higher than it has been in decades.

But unions, and the way employees display support for unions, have always been in fashion, literally. From union pins to signs, t-shirts, and other insignias, union membership and support for unions almost always comes with a display. Indeed, earlier this month, President Biden donned a red United Auto Workers t-shirt when he addressed UAW members at a celebration for their tentative deals with major automobile manufacturers.

But what happens when an employee’s display of union support, in particular, a display made while said employee is “on the clock,” interferes with an employer’s uniform policy?

Beginning Threads

At a Tesla manufacturing facility in California, production associates install parts for electric vehicles in General Assembly. Tesla gives these employees four black shirts and a sweater, each emblazoned with Tesla’s name and logo that it calls “Team Wear.”

Because cars that reach General Assembly are in a fragile state while their paint cures, Tesla’s
Team Wear policy requires production associates to wear Team Wear while working. Tesla supervisors can approve substitutions, but all clothing must be free of anything that would cause abrasions, buffs, chips, dents, or other damage to a vehicle.

In 2017, as part of union organizing efforts, Tesla employees began to swap their black Team Wear shirts for black cotton UAW shirts. Tesla permitted this swap for several months. After discovering several mutilations to cars rolling down the assembly line, Tesla began to strictly enforce its Team Wear policy. Since then, Tesla has prohibited production associates from wearing union shirts (even if black and cotton) but has allowed them to affix union stickers of any size or shape to their Team Wear. Tesla’s purpose for this policy is to minimize car mutilation and improve “visual management” (“lead” production associates wear red Team Wear shirts).

An Ill-Fitting Policy?

Feeling Tesla’s policy restricted employee’s NLRA rights too tightly, the UAW filed an unfair labor practice charge over the Team Wear policy and its enforcement. An administrative law judge (ALJ) ruled that the Team Wear policy interfered with production associates’ right to exercise their right to unionize and that no special circumstances justified the prohibition against employees’ wearing union shirts. Tesla appealed to the NLRB, arguing that the “special circumstances test” derived from the Supreme Court’s decision in Republic Aviation Corp. v. NLRB should not apply because the Team Wear was neutral and production associates could display union insignia freely — just not by wearing a union shirt.

A divided NLRB affirmed the ALJ and held that Tesla’s goals of preventing mutilation and visual management were not special circumstances that justified the Team Wear policy. Relying heavily on its opinion in Stabilus, Inc., the Board held that all policies that curtail an employee’s right to participate in reasonable and legitimate union activity must pass the “special circumstances test.”

In doing so, the Board explicitly overruled its prior decision in Wal-Mart Stores, Inc. The Wal-Mart Stores decision held that facially neutral work rules that only limit the size and/or appearance of union buttons and insignia do not need to meet Republic Aviation’s “special circumstances test” According to the Wal-Mart Board, where a policy is facially neutral, the Board should balance the impact on an employee’s NLRA rights against an employer’s legitimate justifications for the policy to determine if it violates the NLRA.

Instead, the Tesla Board ruled that the “special circumstances test” should apply to every policy. In other words, all policies that limit the display of union insignia are presumptively unlawful and must be justified as special circumstances and enforced by a policy narrowly tailored (for once, no pun necessary) to address those circumstances. Tesla appealed.

The Fifth Circuit Makes an Exchange

The Fifth Circuit disagreed with the Board and returned to the Wal-Mart Board’s standard for evaluating employee uniform policies. Under this balancing test, Tesla’s Team Wear policy did not violate the NLRA because Tesla’s production associates were free to adorn their Team Wear shirts with the union insignia, including with union stickers of any size.

Tailoring Your Policy

The Fifth Circuit’s decision is a slight rebuke to the current Board which has issued a number of union-friendly rulings over the past three years. While the court’s ruling only impacts employers within Mississippi, Louisiana, and Texas, it may be a signal of future litigation to come in other jurisdictions.

Whether you’re in white- or blue-collar industries, consider the following when you review your workwear restrictions.

• If you require employees to wear particular uniforms while on the job, make sure you have a clear and defensible rationale for those restrictions.
• Consistently enforce your policy — not just against union insignia.
• Don’t overreact to a display of union insignia, and make sure your supervisors understand how to respond to insignia displays.
• Consider ways you can provide employees an alternative to display union insignia with stickers, pins, buttons, or stencils to modify their workwear.

While Tesla’s policy survived, it did so on a narrow basis because it only slightly burdened employees’ ability to display union insignia. The ultimate consideration is to keep an eye on what burden your policy imposes on an employee’s right to participate in union activity. If it is more than very slight, it may run afoul of the NLRA, even under the Fifth Circuit’s more generous test.