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The National Labor Relations Board (NLRB) recently reaffirmed that employers may not prevent workers from displaying union insignias unless there are special circumstances.

An August 29, 2022, news release announced the decision in Tesla, Inc., stating “the Board overruled Wal-Mart Stores, Inc., 368 NLRB No. 146 (2019), and reaffirmed longstanding precedent holding that employer attempts to impose any restriction on the display of union insignia, including by wearing union apparel, are presumptively unlawful, absent special circumstances that justify such a restriction.”

The majority of NLRB members found “that it was unlawful for Tesla to maintain a policy requiring employees to wear a plain black t-shirt or one imprinted with the employer’s logo, thus prohibiting employees from substituting a shirt bearing union insignia.” The NLRB also found that Tesla did not have sufficient evidence of special circumstances to make the rule necessary to maintain production or discipline. 

The decision signals a continuing shift in the NLRB’s decisions, which are more protective of unions and employees in those unions.

A little over a week after the Tesla decision, on September 6, 2022, the NLRB issued a notice of proposed rulemaking to change the standard for joint employers under the National Labor Relations Act (NLRA). The proposed rule creates more factors to allow proof of a joint employment relationship. Under the rule, employers are joint employers if they co-determine “essential terms and conditions of employment,” such as scheduling, wages, and benefits. It would override the Trump-era joint employer rule that took effect in April 2020. Joint-employer companies share liability for unfair labor practices and responsibility for bargaining with a union. The rules, as proposed, serve to impact the franchising industry and companies that source labor through contracting, temporary staffing, and other business-to-business arrangements.

NLRB rulemaking is following the same direction as its decisions. Employers, in an environment where more employees are interested in forming unions, should be aware that the NLRB’s objectives may not be in their favor. If you have questions about a union at your organization or unionizing activities, contact Employers Council.