Tesla’s ban on pro-union T-shirts is illegal and must be repealed, according to NLRB rules

Zoom / A huge logo greets workers heading to the assembly line at a Tesla plant on February 19, 2015 in Fremont, California.

Getty Images | San Francisco Chronicle / Hearst Newspapers

Tesla has violated US labor law by implicitly banning employees from wearing T-shirts bearing union insignia, the National Labor Relations Board announced yesterday. In addition to ruling that Tesla broke the law, the NLRB overturned a Trump-era decision in a similar case involving Walmart.

The NLRB 3-2 decision was along partisan lines, with Republicans objecting. The Democratic majority said it had “found it illegal for Tesla to maintain a policy requiring employees to wear a plain black shirt or an employer logo printed on it, thus preventing employees from substituting a union badge shirt.” Tesla’s strict enforcement of this policy began in 2017, shortly after employees began wearing union shirts at a Fremont, California factory.

The NLRB said this “interference is by default illegal, and the employer has the onus to create special conditions that make the rule necessary to maintain production or discipline.” The majority also ruled that “Tesla failed to specify special circumstances in this case.”

NLRB has ordered Tesla to rescind or revise the team’s wear policy “to make it clear that it does not prohibit production partners from wearing the union’s black jerseys.” Tesla must also notify all current employees of the change and post copies of the NLRB notice at its Fremont facility. The required notice to employees says NLRB has found that Tesla violated federal labor law and advises employees of their rights.

NLRB Chairman Lauren McFerran issued a statement:

Wearing a union insignia, whether it is a button or a shirt, is an important form of protected communication. For many decades, employees have used badges to defend their interests in the workplace – from supporting campaigning, to protesting unfair conditions in the workplace – and the law has always protected them. With today’s decision, the Board of Directors reaffirms that any attempt to restrict the wearing of union clothing or a union insignia is virtually illegal – consistent with Supreme Court precedent – an employer bears an increasing burden to justify attempts to limit this important right.

Trump-era ruling ‘ignoring decades’ of precedent

The new ruling said the 2019 board’s decision, which found Walmart’s sales floor dress code to be legal, “disturbed the appropriate balance that the Supreme Court struck in the Aviation RepublicIgnoring decades of board precedent that held that Which Restricting the display of a union badge is illegal by default regardless of whether the employer allows other relevant Section 7 [of the National Labor Relations Act] And it created uncertainty in this previously well-established legal area.”

The NLRB said it was a breach Walmart They reiterated that “when the employer intervenes, In any way With the right of its employees to display the union insignia, the employer must prove the special circumstances that justify his intervention. Applying this standard here, the NLRB has determined that ‘Responsible [Tesla] violated Section 8(a)(1) of the Act by maintaining the team wear policy, which requires employees to wear jerseys imprinted with the defendant’s logo and implicitly prohibits employees from substituting any jersey for a logo or emblem, including a union with a badge jersey for team wear Required “.

The now-reversed 2019 ruling on Walmart states that the “special circumstances” test applies only when the employer completely prohibits the union badge, and that smaller and less visible restrictions on the union badge may be considered legal based on the employer’s less compelling interests,” the NLRB said. The previous ruling said Walmart had violated the law by enforcing its policy in areas other than the sales floor, but that it had a legitimate justification for maintaining the policy in customer-facing areas.

We reached out to Tesla about the NLRB ruling yesterday and will update this article if we get a response.

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