Tesla must allow workers to wear union-supporting clothing

NLRB President Lauren McFerran said the decision reaffirms that “any attempt to restrict the wearing of union attire or badges is presumed unlawful and – consistent with Supreme Court precedent – an employer has an increased onus to justify attempts to limit this important right”.

In a 3-2 decision, the NLRB said that when companies interfere with employees’ right to display union badges, the employer “bears the burden of establishing special circumstances” and the majority “concluded that Tesla had not established any special circumstances in this case”.

Tesla did not immediately respond to requests for comment. The UAW welcomed the decision on Tuesday.

“This is a big win for workers who have the courage to unite and organize in a system that is currently heavily stacked in favor of employers like Tesla who have no qualms about breaking the law,” UAW Vice President Cindy Estrada said in a statement. “As we celebrate the justice in today’s ruling by an increasingly worker-friendly NLRB, it also highlights substantial flaws in US labor law. Here is a company that has clearly taken many aggressive and illegal measures to block workers’ rights, yet she has more than four years to go before workers see any justice.”

In addition to ruling on the You’re here (TSLA) case, the NLRB also overturned a 2019 decision by the agency involving walmart (WMT) Inc, saying the earlier decision “ignored decades of board precedent.”

The NLRB’s previous decision said Walmart’s rationale for restricting union badges on the sales floor to improve the shopping experience for customers and prevent theft or vandalism was legitimate. The NLRB in 2019, however, acknowledged the potential interference with employees’ rights under the National Labor Relations Act (NLRA).

The 2019 ruling set a precedent for employers across the country to have more control over limiting union dress.

Walmart did not immediately respond to a request for comment.

The NLRB said some Tesla employees assembling electric vehicles at its factory in Fremont, Calif., wore shirts with union logos during a 2017 UAW Organizing Campaign. At that time, the UAW sought to represent workers at the Tesla factory in Fremont, who are not unionized.

Tesla’s “team dress” policy required employees to wear black shirts printed with the Tesla logo or their own black t-shirts without a logo. The NLRB found that this implicitly prohibited employees from substituting any shirt with a logo or emblem, including a shirt bearing union badges.

The NLRB said that before 2017, Tesla production workers routinely wore shirts that weren’t black or had unrelated Tesla logos and emblems. On Monday, he ordered Tesla to roll back its policy banning employees from wearing black union shirts.

This isn’t the first clash between Tesla and the NLRB.

In 2021, the NLRB said a 2018 tweet by CEO Elon Musk, in which he threatened Tesla employees who formed a union would lose their stock options, was illegal and should be removed.

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