On
The case,
Tesla maintained a “team-wear policy” that required production associates to wear black clothing imprinted with Tesla's logo. Tesla asserted that its dress code protected vehicles by eliminating zippers, buttons, and other damage-causing features. It also asserted that its dress code aided in “visual management” of employees by having each classification of employee wear a different color. Production associates were prohibited from wearing clothing with any other logo or emblem, although they were occasionally permitted to substitute the assigned Tesla apparel with all-black clothing with no zippers or other damage-causing features.
During a union organizing campaign in 2017, some employees instead wore black shirts with union logos or slogans. The substitute clothing did not have zippers or other damage-causing features. When Tesla began enforcing its team-wear policy and prohibited the union-insignia apparel, the union and some employees filed a charge with the
In its decision, the
The
In this case, the
Although the facts of this case are somewhat unique, the
- Tesla argued that it did not prohibit all union insignia, just insignia sewn onto clothing, because employees were permitted to wear union stickers on their clothing. The
NLRB dismissed this fact as irrelevant. It stated that the NLRA entitles employees to use a variety of means of communication to show their support for a union, and that an employer is not allowed to choose which means of communication are available to employees—even if both means are equally effective. -
Tesla also argued that its team-wear policy was nondiscriminatory because it prohibited all non-company clothing, not just union insignia. The
NLRB rejected this argument, finding that a dress code would violate the NLRA if it prevents employees from displaying union insignia, even if the policy was neutrally applied to all nonconforming clothing and did not target union insignia specifically.
The Tesla ruling therefore provides multiple cautionary takeaways for employers:
- A facially neutral dress code is not necessarily foolproof. An employer will still need to determine whether “special circumstances” exist to justify any restriction on union insignia.
-
The
NLRB is ready and willing to assert a broad interpretation of employees' NLRA rights to communicate support for a union. Employers should be cautious about taking action to limit such communication even in situations unrelated to clothing. -
An employer should not start enforcing a dress code only after a union organizing campaign has begun. Although this factor was not a focus of the
NLRB's analysis, the timing of Tesla's decision to ramp up enforcement could be seen as suspect.
In light of this ruling, employers should take care in creating and implementing any uniform or dress code policies. Employers should consult with counsel prior to taking any disciplinary action in response to perceived violations of such policies, particularly where employee clothing bears reference to labor organizations, unionizing, or other terms or conditions of employment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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