NLRB relaxes standard for union insignias in workplace

On August 29, 2022, the National Labor Relations Board (NLRB) issued a major decision that reversed a standard it set in 2019. Previously, employers enjoyed substantial discretion to limit alterations to work uniforms or other designated clothing in the workplace.

In a case involving Tesla Inc., the NLRB flipped the standard on its head by ruling that any limitation on the display of union insignias in the workplace is presumptively unlawful, except in special circumstances that make it necessary to maintain production or discipline in the workplace.

Facts

With its new ruling in Tesla Inc., the NLRB returned to the standard it set in a previous case by overruling the 2019 decision in Wal-Mart Stores Inc.

In 2019, the NLRB’s decision in Wal-Mart Stores Inc. created a distinction between rules that completely prohibit the display of union insignias and rules that partially restrict them. Under the decision for this case, only rules that completely prohibited the display of union insignias were required to prove special circumstances for the necessity of the workplace limitation.

A less stringent standard from a decision in a previous caseapplied to the rules that partially restricted the display of union insignias. Under this ruling, the Board must balance the following two factors: (1) the nature and extent of the potential impact on rights protected by the National Labor Relations Act (NLRA) and (2) the legitimate justifications of the employer associated with the rule.