After consideration of public comment, the National Labor Relations Board (NLRB) found that it was unlawful for Tesla to maintain a policy requiring employees to wear a plain black t-shirt or one imprinted with the employer’s logo, thus prohibiting employees from substituting a shirt bearing union insignia.
The Board reaffirmed that when an employer interferes in any way with employees’ right under Section 7 of the National Labor Relations Act to display union insignia, that interference is presumptively unlawful, and the employer has the burden to establish special circumstances that make the rule necessary to maintain production or discipline. The majority then found that Tesla failed to establish special circumstances in this case.
“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,” said Chairwoman Lauren McFerran. “With today’s decision [August 29, 2022], 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.”