Tesla Decision Overrules Employer Bans on Pro-Union Apparel

The National Labor Relations Board (NLRB) held in a split decision that employers violate federal labor law by interfering in any way with an employee’s right to display union insignia without showing justifying special circumstances. The increase in scrutiny of union apparel bans is the result of the Board’s August 29 decision that Tesla violated the National Labor Relations Act by banning workers from wearing shirts with union logos during a 2017 United Auto Workers union drive. The Board’s decision overturns a 2019 decision that permitted employers to restrict employees from wearing union apparel without showing justifying special circumstances.

This decision comes as the NLRB’s first precedent-shifting ruling of the Biden Administration. The Republican minority dissented, stating that while the Tesla decision rightly presumes the illegality of prohibiting union insignia without special circumstances, the decision creates too strict a test for neutral rules. However, the majority stated that the decision is reflective of the standard reached under the Republic Aviation court command that the NLRB balance workers’ “undisputed right of self-organization…and the equally undisputed right of employers to maintain discipline in their establishments.”

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