NLRB Continues Its Assault On Employer Work Rules


The National Labor Relations Board (NLRB) recently deemed unlawful a work rule that restricted the display of union insignia by requiring employees to wear uniforms or other designated clothing that implicitly prohibited them from substituting union clothes for the required uniform or clothing. Tesla, Inc., 370 NLRB No. 131 (2022).

In l975, the U.S. Supreme Court held employees have the right to display union insignia under the National Labor Relations Act (NLRA) unless the employer could establish special circumstances justifying the need to limit such a right.  Thereafter, in 2010, the NLRB held an employer could not enforce a company uniform policy in an effort to prevent employees from wearing union clothing.  Limiting the reach of that prior decision on the issue, the NLRB decided in 2019 that the “special circumstances” standard was not applicable to a Wal-Mart dress code policy that partially restricted the display of union buttons and insignia.

Tesla overruled the NLRB’s Wal-Mart decision and held that any restriction on an employee’s right to display union insignia must be justified by “special circumstances.”  As a result, the NLRB found that Tesla violated the NLRA by requiring employees to wear shirts imprinted with the company logo. According to the NLRB, because Tesla’s policy prohibited employees from wearing union shirts in place of the required “team wear,” the policy was presumptively invalid, and it was up to Tesla to establish “special circumstances” to justify its interference with employees’ rights.

The NLRB provided examples where prior employers had established “special circumstances,” including jeopardizing employee safety, damaging machinery or products, exacerbating employee dissension, or unreasonably interfering with a public image that the employer had established, or when necessary to maintain decorum and discipline among employees.  As frequently is the case, the NLRB will conduct a fact-specific inquiry to determine whether the employer has established “special circumstances” exist to justify restricting employee rights to wear union insignia.

For those following recent developments at the NLRB, its decision in Tesla will not come as a surprise.  Employers must continue to review existing work rules and policies to determine if they present possible conflicts with a very pro-union NLRB.  Taking action now may limit potential exposure to unfair labor practice charges filed by employees and unions.


The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

Learn more aboutStephen B. Maule
Stephen’s practice includes all aspects of labor and employment law. He assists employers with immigration petitions to the U.S. Citizenship and Immigration Service, including H-1B, TN and permanent residency. He has also represented employers in investigations conducted by the U.S. Immigration and Customs Enforcement.