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On August 29, 2022, the NLRB reaffirmed that when an employer interferes “in any way” with its employees’ right to display union insignia at work, the employer must prove special circumstances that justify its interference. Dan Curry and Margo Feinberg represented UAW in its NLRB proceedings regarding Tesla’s Fremont, California plant.

The decision, supported by a three-member board majority, overruled the Trump-era Board decision Wal-Mart, 368 NLRB No. 146 (2019), which had permitted employers to prohibit some union insignia without demonstrating special circumstances.

Applying that standard to Tesla’s Fremont manufacturing plant, the Board upheld an administrative law judge’s decision that Tesla, Inc. violated Section 8(a)(1) of the NLRA by maintaining and enforcing its work attire (“team-wear”) policy, which requires employees to wear Tesla T-shirts, or a plain black shirt. In 2017, after many Tesla employees in the General Assembly area of the Fremont plant began wearing black UAW T-shirts, Tesla required employees to change out of the UAW shirts. The Board held that Tesla’s proposed justifications – preventing scratches to newly-painted cars and visual management of employees by shirt color – lacked any evidentiary support, as Tesla’s own witnesses admitted the UAW black t-shirts posed no danger to the cars or confusion to the managers.

The Decision orders Tesla to cease and desist from maintaining and enforcing a work attire policy that prohibits employees from wearing black union shirts, to rescind that policy, to notify all current employees that the policy has been rescinded, and to post a notice in the plant stating Tesla will comply with the law and not prohibit black union shirts.

In making the decision, the Board explained that union insignia are a “critical form of protected communication” under the NLRA used “to support organizing campaigns, demonstrate solidarity, and advocate for issues during collective bargaining.”

Read more coverage at CNBC.

Connect with Margo and Dan on LinkedIn.

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