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NLRB Lawyer: Keep Union Insignia Rule

The NLRB's top lawyer is siding with unions against Tesla

Brian Young's picture
Mar 24, 2021

Over the past few months President Biden and his appointees have worked to overturn a number of Trump initiatives. Some of these include getting rid of Trump’s anti-union executive orders and dropping a case challenging neutrality agreements. This latest change comes in a memo from Acting NLRB General Counsel Peter Ohr, asking the National Labor Relations Board to retain the current policy on wearing union insignia at work.

The case stems from an attempt by Tesla to limit what union insignia could be worn on the factory floor. Tesla is a non-union company and has worked to bust organizing attempts at the automaker before. Tesla’s case challenged the Obama-era rule that required an employer to identify special circumstances that justify prohibiting workers from wearing union insignia.

The case stems from an administrative law judge's decision that Tesla violated labor law by prohibiting production associates from wearing union shirts. The shirt ban was part of a series of unfair labor practices that Tesla was found guilty of in 2019. Last month the NLRB asked the public to submit comments on the case and pro-business groups like the U.S. Chamber of Commerce and the HR Policy Association filed briefs calling for the Obama era standard to be overturned. The AFL-CIO and SEIU also filed briefs defending the standard. In their brief, the AFL-CIO said that Tesla’s prohibition of union shirts was illegal and that under the company dress code, workers could substitute all-black clothing as long as it was work-appropriate, mutilation-free, and didn’t create a safety risk. The AFL-CIO highlighted the fact that Tesla only had a problem with workers wearing something other than all black when workers began coming to work with black shirts that had a UAW logo on them. The shirts were specifically designed to comply with Tesla’s dress code policy.

“In short, prior to the August 2017 application of the policy to ban wearing black union shirts, there would have been no legal basis for challenging the policy on its face,” wrote AFL-CIO General Counsel Craig Becker, who was an NLRB member when the board decided Stabilus.

Other unions also warned the NLRB that changing the standard could also allow companies to ban other types of insignia that are entwined with the culture of the worksite. In the Carpenters union brief that said stickers are often used to indicate specific training a worker has, to promote workplace safety, to identify a Jobsite steward, or to remind them of a fallen colleague. All of these could be banned either intentionally or unintentionally if the NLRB roles back the union insignia rule.

Ohr seems to agree with the unions on this case. In a brief that was submitted to the board, Ohr argued that the NLRB should keep the Obama-era test and require employers to justify any prohibition on workers wearing union insignia.

Although there is a new President and more favorable General Counsel for unions, it is not a guarantee that the NLRB will not rule in favor of Tesla since the board is still controlled by Trump-appointed Republicans until August.


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