Many employers have policies that require employees to wear uniforms.  What if an employee of such an employer, however, wants to instead wear a t-shirt expressing support for a labor union?  The NLRB has long regulated an employer’s ability to restrict such a right.  But, the NLRB recently signaled that a change in this rule may be in the works.

Last week, the NLRB issued an order inviting interested parties to submit briefs to address what rule the NLRB should apply to evaluate the legality of an employer’s policy requiring uniforms.  The case grows out of a car manufacturer’s “team-wear” policy, which it maintained for its production associates.  These individuals work in a manufacturing environment, and are thus different from the customer-facing employees involved a few years ago in a case this blog has previously discussed.

The employer applied its team-wear policy to prohibit an employee from wearing a union shirt.  An administrative law judge found that the employer’s enforcement of its team-wear policy in this manner violated the Act.  Specifically, the judge found that employer’s team-wear policy unlawfully prohibited production associates from wearing union shirts because the employer failed to establish that team-wear policy was justified by “special circumstances,” as required under a 1945 U.S. Supreme Court decision.

In its appeal to the NLRB, the employer argues that the “special circumstances” analysis is not applicable because the policy only requires production associates to wear a particular shirt (thus prohibiting union shirts).  The employer notes that production associates were entirely free to wear union insignia on hats or other clothing.  Indeed, the employer noted that many employees had done so.

In issuing the invitation for briefs, the NLRB noted its 2010 decision, Stabilus, Inc., provides that an employer cannot avoid the “special circumstances” test simply by requiring employees to wear uniforms or other designated clothing, which would then preclude the wearing of union insignia.  The NLRB majority is asking that the briefs address two issues presented by the Stabilus decision:

  1. Does Stabilus specify the correct standard to apply when an employer maintains and consistently enforces a nondiscriminatory uniform policy that implicitly allows employees to wear union insignia (buttons, pins, stickers, etc.) on their uniforms?
  2. If Stabilus does not specify the correct standard to apply in those circumstances, what standard should the Board apply?

The due date for briefs from interested parties is March 15, 2021.

Chairman McFerran (D) dissented, arguing that there is no need to revisit the Stabilus decision because the 1945 Supreme Court decision is, in her view, sufficiently clear that work rules prohibiting employees from wearing union insignia are unlawful unless justified by special circumstances.  Still, Chairman McFerran acknowledged that she will consider the case “with an open mind” and thus, presumably, take any newly filed briefs into consideration.

For the labor professional, the case will be one to watch as it will likely shed light on employers’ uniform policies specifically with respect to union insignia.  Indeed, the invitation for briefs presents the possibility that the Stabilus standard will be replaced or modified.