Tesla violated federal labor law when it enforced a policy requiring employees to wear shirts with printed Tesla logos on the job while prohibiting them from wearing shirts with union insignia, the National Labor Relations Board held in a 3-2 decision published Monday.
Workers at the automaker’s Fremont, California, general assembly facility said that, during a 2017 union organizing campaign, they wore black cotton shirts displaying the union’s campaign slogan as well as its logo.
The employees alleged they received warnings that they would be sent home either for refusing to change their shirts or for wearing them to work again. Meanwhile, Tesla continued to allow workers to wear union stickers on required team wear.
Tesla requires general assembly employees to wear assigned apparel, consisting of black pants and a black cotton shirt with the company’s logo, but its policy permits employees to substitute team wear with all black clothing as long as it is mutilation-free, work appropriate and poses no safety risks. While it previously did not prevent workers from wearing other clothing with logos, it “began to strictly enforce” its policy amid the organizing campaign, requiring employees to cover non-Tesla insignia with tape, workers alleged.
NLRB found that Tesla’s restrictions violated its precedent in Republic Aviation, in which it found that employer limitations on the display of union insignia are invalid unless an employer can demonstrate special circumstances that justify its action. The Board agreed with an administrative law judge’s finding that Tesla failed to do so.
Monday’s decision comes after months of what some observers have labeled a lull in precedential decision-making at NLRB due to a variety of factors, Bloomberg Law reported in March.
In recent weeks, the Board has been involved in a series of disputes with employers over unionization efforts, perhaps most notably in the case of Starbucks. Last week, NLRB alleged the restaurant chain violated federal law when it extended benefits to non-union workers and excluded non-union baristas.
As part of its holding in Tesla, NLRB overruled a 2019 decision involving retailer Walmart. Tesla had attempted to defend its uniform policy by citing the Wal-Mart decision, in which NLRB — then staffed by a 3-to-1 Republican majority — held it should apply its Boeing standard when analyzing rules which limit the size or appearance of, but do not outright prohibit, union buttons and insignia.
In Monday’s decision, however, the Board’s Democratic majority found that applying the Boeing standard would be contrary to its Republic Aviation precedent. Consequently, it overruled the Wal-Mart decision, stating that the 2019 Board “relied heavily on the mistaken premise that the employer’s partial restriction on the display of union insignia in that case presented a novel scenario that fell outside the ambit of Republic Aviation and its progeny.”
Under the Biden administration, NLRB has previously indicated it may revisit prior decisions including Boeing. A January notice from the Board asked parties to a 2021 labor dispute and amici, other stakeholders, to submit briefs addressing whether it should continue to adhere to Boeing.
