Question: We have a dress code policy that requires production employees to wear either a plain t-shirt, or a t-shirt with the company logo. One of our employees came to work this morning wearing a t-shirt with the union logo. Can I require them to change?
Answer: Probably not. The company cannot enforce a policy that limits an employee’s right to display union logos or insignia unless you can show that special circumstances justify the limitation (such as ensuring workers’ safety, maintaining discipline, or preventing customer confusion). By wearing a t-shirt with the union logo, the employee engaged in a protected “concerted” (group) activity under Section 7 of the National Labor Relations Act (NLRA). Section 7 guarantees employees the right to band together and bargain collectively regarding wages, hours, and working conditions. With very limited exceptions, employers cannot interfere in any way with an employee’s exercise of their Section 7 rights or punish an employee for engaging in a protected activity under Section 7. It would be pretty tough to prove that prohibiting the display of a union logo on a production worker’s t-shirt is legitimate and necessary due to special circumstances, although it’s possible. For example, if the union t-shirt is so baggy that it violates other portions of your dress code because it might get caught in machinery, that would likely qualify as a special circumstance.
The National Labor Relations Board recently ruled that employer attempts to impose any restriction on the display of union insignia on clothing are presumptively unlawful. The Board determined that a manufacturing company’s dress code policy for production workers unlawfully limited their use of union insignia, which interfered with their Section 7 rights. The Board noted that it treats clothes displaying union insignia the same as union insignia that employees attach to their clothing, such as buttons and pins. The company was unable to establish special circumstances to justify the interference. It contended that color-coded t-shirts helped it verify that employees were working in the right area, but its history of allowing workers to wear plain black t-shirts instead of t-shirts with a company logo negated this argument. The company also speculated that the union t-shirts (which were made of cotton, the same as the company t-shirts) might damage the products being made, but there was no evidence that the union t-shirts ever damaged a product (Tesla Inc., NLRB, Aug. 2022).
It’s a good idea to review your dress code policy and identify any requirements that potentially limit an employee’s exercise of Section 7 rights. Then, you should determine whether the rule can be justified by special circumstances. If you cannot prove special circumstances, the policy should be revised to be less restrictive. This is a complex area of the law that requires legal interpretation. Contact your Vigilant Law Group employment attorney if you have any questions about the validity of your work rules and policies under the NLRA, and see our Legal Guide, Handling Workplace Protests and Complaints.