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NLRB Finds Tesla Unlawfully Restricted Union Apparel

Aug. 31, 2022
“Wearing union insignia, whether a button or a t-shirt, is a critical form of protected communication,” said NLRB Chairman Lauren McFarren, in a statement.

In a decision Monday, the National Labor Relations Board ruled that Tesla Inc. was unlawfully restricting its employees from displaying union insignia. In a 3-2 ruling August 29, the NLRB found that any company restriction on wearing union apparel are “presumptively unlawful” unless the company gives a good reason.

The Tesla policy targeted by the decision requires that company employees wear one of two t-shirts: a plain black t-shirt, or a black t-shirt with a company logo. Black t-shirts displaying union iconography were restricted, according to the UAW, which brought the initial complaint alongside Tesla employees.

A previous NLRB standard, set in 2019 in a case with Wal-Mart, held that employers could restrict union apparel without giving special circumstances as long as they didn’t completely prohibit employees from wearing union insignia. Monday’s decision overrules the 2019 decision, Wal-Mart Inc., 368 NLRB No. 146 (2019), and reinstates an earlier standard, Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), which requires employers that “interfere in any way” with an employee’s right to display union iconography have to provide special circumstances justifying the interference.

In a statement, NLRB Chairman Lauren McFarren said that wearing union apparel has a history for employees organizing unions and protesting against poor conditions.

“Wearing union insignia, whether a button or a t-shirt, is a critical form of protected communication,” McFerran said. “With today’s decision, the Board reaffirms that any attempt to restrict the wearing of union clothing or insignia is presumptively unlawful and—consistent with Supreme Court precedent—an employer has a heightened burden to justify attempts to limit this important right.”

Neither Tesla nor its public face, CEO Elon Musk, have commented publicly on the ruling.

United Auto Workers President Ray Curry hailed the NLRB decision, calling the overruled 2019 standard a “Trump-era NLRB decision” that “strengthened the hand of employers in their ability to restrict worker expression on the shop floor,” but expressed regret that the decision took four years after Tesla workers and the UAW initially filed objections.

“Our union commends this decision,” Curry said in a statement. “Worker expression is a statement of solidarity during organizing. As a result of this decision which the UAW fought for, workers can feel more secure in their pro-union expression today as they work to form their unions.” 

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