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Keep Union Insignia Rule in Tesla Case, Top NLRB Lawyer Says

March 23, 2021, 8:42 PM

The National Labor Relations Board’s top lawyer urged the board to retain its legal framework for wearing union insignia in a case involving Tesla Inc., instead of expanding employer power to bar workers from wearing symbols of organized labor.

Acting General Counsel Peter Sung Ohr’s views generally line up with those of several unions that also submitted briefs in the Tesla case on Monday. The NLRB should keep the Obama-era test requiring employers to identify “special circumstances” that justify prohibiting workers from wearing union insignia—even when a workplace rule doesn’t specifically ban union symbols, they said.

The U.S. Chamber of Commerce, HR Policy Association, and other business groups filed briefs asking the NLRB to retool its union insignia standard, which they said puts an excessively high burden on employers to prove their neutral uniform policies comport with federal labor law.

Ohr’s brief is another sign of his willingness to carry out a pro-union agenda even as the Biden administration’s general counsel nominee Jennifer Abruzzo waits for Senate consideration. Ohr, in one of his first acts as the head of the NLRB’s legal arm, cited the National Labor Relations Act’s stated goal of encouraging collective bargaining and protecting workers’ rights. He also said he wouldn’t spend his time in office as a “potted plant.”

The NLRB is reviewing an administrative law judge’s ruling that Tesla violated labor law by prohibiting production associates from wearing union shirts. The shirt ban was one of a series of unfair labor practices the judge found in her 2019 decision, which also included CEO Elon Musk’s 2018 tweet suggesting employees would lose out on stock options if they joined a union.

The board’s Republican majority—slated to control the board at least until one of the three GOP members leaves in late August—asked the public last month to submit briefs weighing in on whether it should change its legal test for union insignia.

The basic framework governing employer restrictions on union symbols flows from the U.S. Supreme Court’s 1945 ruling in Republic Aviation v. NLRB. For a rule against wearing union insignia to pass legal muster, the employer must show special circumstances make the rule necessary to maintain production or discipline, the court said.

At issue in the Tesla case is the NLRB’s 2010 ruling in Stabilus, which said the requirement to identify special circumstances remains when employers indirectly prevent workers from wearing union symbols by requiring them to don uniforms or other specific pieces of clothing.

Wrong Case?

In briefs filed with the NLRB, the AFL-CIO and Service Employees International Union argued that the board shouldn’t use the Telsa case to change precedent. The company’s policy wasn’t discriminatory on its face, but was weaponized against union supporters, they said.

Tesla’s targeted prohibition of union shirts—not the underlying company dress code—was illegal, the AFL-CIO said. Tesla’s policy allowed workers to substitute all-black clothing as long as long as it was work appropriate, “mutilation-free,” and didn’t create a safety risk, the labor federation said.

That only became an issue when certain employees started wearing black shirts with a small United Auto Worker logo in 2017, even though the shirts were designed to fall under the company’s apparel policy, the AFL-CIO said in its brief.

“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.

Broader Arguments

Other unions made broader arguments about why the current standard shouldn’t be changed. The United Brotherhood of Carpenters and the International Brotherhood of Electrical Workers urged the Republican majority not to scrap the special-circumstances test, noting that union stickers and other insignia are entwined with the culture at work sites.

Stickers can indicate that workers have certain specific training, promote worker safety, remind them of their fallen colleagues, identify which worker is a jobsite steward, and display solidarity among members, the carpenters union said in its brief.

Wearing union insignia is a “uniquely important” way of expressing support for a union, especially for workers who have no other way of doing so during work hours, according to the acting NLRB general counsel.

The Stabilus decision didn’t create new law, but simply stated the NLRB’s longstanding approach for situations when workers were prohibited from wearing union attire by the enforcement of facially neutral policies, Ohr said in his brief.

“The adoption of a framework less protective of employee rights for situations where an employer permits some forms of union insignia, like buttons, pins, or stickers, while prohibiting union attire would run counter to longstanding principles embraced by the Supreme Court,” the general counsel’s brief said.

The Boeing Option

Tesla filed a brief arguing that the NLRB’s 2017 ruling in Boeing is the correct standard for judging the lawfulness of its clothing policy. That legal test, which the board has applied to a wide range of workplace policies, weighs employer justifications for a rule against potential interference with workers’ labor law rights.

The “team wear policy” requiring production assistants to wear soft black shirts—with no restriction on hats or non-abrasive stickers with union insignia—is a presumptively lawful rule that has little to no impact on workers’ legal rights, Tesla said. The company argued that it shouldn’t have to show special circumstances to justify a rule designed to protect cars and identify production assistants on the assembly line.

Somewhat echoing a point made by the AFL-CIO and SEIU, Tesla said the Stabilus decision that the board is reconsidering doesn’t apply to its apparel policy.

Stabilus was not a mere maintenance case; rather it was a case involving the discriminatory and undue enforcement of a uniform policy that singled out the wearing of union apparel for prohibition,” the company said. “Here, that is simply untrue.”

The business-sponsored Coalition for a Democratic Workplace, Chamber of Commerce, and a half-dozen other industry groups also urged the NLRB to use its Boeing test for facially neutral apparel rules like Tesla’s policy. That standard appropriately balances the interests and rights of employers and workers, the groups said in their brief.

The HR Policy Association challenged the notion that Republic Aviation created a special-circumstances test. The NLRB and administrative law judges have misapplied that Supreme Court opinion, which really created a balancing test to determine the legality of employer rules, the association said in its brief.

“What term is used to describe the correct balancing test is not important,” the association said. “What is important is that the Board and courts recognize an employer’s right to establish and implement facially neutral employee uniform policies, and that a balancing test generally be utilized to determine whether such policies are lawful under the NLRA.”

To contact the reporters on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com; Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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