HR Management & Compliance

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.


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.

The Board’s Wal-Mart Stores Inc. decision, in essence, requires answering two questions before determining the standard to apply in union insignia cases:

  • Did an employer’s policy prohibit the display of all union insignias, or did it only partially restrict the display of union insignias?
  • If it only partially restricted the display of union insignias, did the case present a facial challenge or an as-applied challenge?

A facial challenge means that a restriction is always unconstitutional, no matter how it is applied. Conversely, an as-applied challenge means that a restriction is only unconstitutional when applied in some specific circumstances.

New Standard Same as the Old Standard

The NLRB’s decision in Tesla Inc., on the other hand, provides that once any limitation on employees’ right to display union insignias is established, the question is only whether the employer can prove special circumstances for the limitation. Additionally, the Board ruled that the limitation on the display of union insignias must be narrowly tailored to address those special circumstances.

In Tesla Inc., the employer’s policy allowed production employees to wear assigned teamwear. With their supervisor’s approval, production employees could substitute teamwear for all-black clothing that was “mutilation free,” “work appropriate,” and posed no safety risks.

The employer’s teamwear policy prohibited production employees from wearing shirts with a logo or an emblem, including a union insignia, instead of a teamwear shirt. The Board found that the employer’s interference was unlawful because the teamwear policy restricted the production employees’ ability to display union insignias. For this to be lawful, the employer had the burden of establishing special circumstances warranting the policy.

In Tesla Inc., the employer attempted to establish special circumstances by showing that it intended to lower the risk of clothing that could cause mutilations or damage to its unfinished vehicles. However, it didn’t provide evidence that shirts with non-employer logos, such as union logos, posed a mutilation risk or a risk to the unfinished vehicles.

In addition, the employer attempted to establish special circumstances by alleging that the policy helped maintain visual management of its employees. However, it didn’t provide any evidence of special circumstances that would have justified banning production employees from wearing black union shirts. Therefore, the teamwear policy wasn’t narrowly tailored to the special circumstances justifying the creation of the rule.

Bottom Line

The Board’s decision in Tesla Inc. will significantly limit employers’ previous abilities to mandate uniforms or other designated clothing in the workplace. Moving forward, the NLRB will require an employer to establish special circumstances to justify restrictions on its employees’ right to display union insignias.

The real-world implication of the Tesla Inc. decision is that it provides labor unions with a greater ability to display union insignias on workplace uniforms and attire, and employers won’t be able to limit such displays in the work area. This departs from the more employer-friendly decisions of the Trump-era Board, which attempted to balance employee rights with employer interests in the workplace.

Michael J. Moore is an attorney with Steptoe & Johnson PLLC in Bridgeport, West Virginia. You can reach him at

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