NLRB finds union clothing illegally restricted by Tesla

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In a decision Monday, the National Labor Relations Board ruled that Tesla Inc. was unlawfully prohibiting its employees from displaying union badges. In an Aug. 29 3-2 ruling, the NLRB found that any company restrictions on wearing union attire are “presumed illegal” unless the company gives a good reason.

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

A previous NLRB standard, set in 2019 in a case with Wal-Mart, said employers could restrict union wear without giving special circumstances as long as they didn’t completely ban employees from wearing union badges. Monday’s decision reverses the 2019 decision, Wal-Mart Inc., 368 NLRB No. 146 (2019), and reinstates an earlier standard, Republic Aviation Corp. vs. NLRB, 324 US 793 (1945), which requires that employers who “interfere in any way” with an employee’s right to display union iconography must provide special circumstances justifying the interference.

In a statement, NLRB President Lauren McFarren said wearing union clothes has a story for employees who organize unions and protest poor conditions.

“Wearing union badges, whether a button or a t-shirt, is an essential form of protected communication,” McFerran said. “With today’s decision, the Board reaffirms that any attempt to restrict the wearing of union attire or badges is presumed unlawful and, consistent with Supreme Court case law, an employer has an increased onus to justify the attempts to limit this important right.”

Neither Tesla nor its public face, CEO Elon Musk, has publicly commented on the decision.

United Auto Workers President Ray Curry hailed the NLRB’s decision, calling the overturned 2019 standard a “Trump-era NLRB decision” that “strengthened the hand of employers in their ability to restrict speech workers in the shop,” but lamented that the decision took four years after Tesla workers and the UAW initially filed objections.

“Our union welcomes this decision,” Curry said in a statement. “Labour expression is a statement of solidarity when organizing. As a result of this decision that the UAW fought for, workers can feel more secure in their pro-union expression today as they strive to form their unions.

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