NLRB accepting comments about restrictions for union insignia on company uniforms

Editor’s note: St. Louis attorney Robert A. Kaiser, who was interviewed for this story (which first appeared in the HR Daily Advisor), is a longtime editor of Missouri Employment Law Letter and a contributing editor to Midwest Employment Law Letter.

The National Labor Relations Board (NLRB) is seeking input on its standard for determining what kind of restrictions employers can put in place related to employees wearing union insignia on company uniforms.

The Board’s call for briefs is related to a case involving Tesla, Inc. The issue in the Tesla case focuses on when an employer that requires employees to wear company uniforms can prohibit workers from wearing shirts with union logos in place of the required uniform.

The NLRB’s three Republican members—Marvin Kaplan, William Emanuel, and John Ring—voted to seek briefs on what standard should be applied to employers with uniform policies. The sole Democrat on the Board, Chair Lauren McFerran, dissented.

The NLRB issued its call for briefs on February 12. It’s seeking opinions on whether the standard set in the 2010 Stabilus case should be applied. That decision is seen as being more friendly to employees wanting to wear union insignia than the decision in a 2019 case involving Walmart, which allowed the employer to restrict the wearing of union buttons on the sales floor.

The NLRB is asking for briefs on the following questions: