Two recent cases, one from the National Labor Relations Board, and one from a federal court of appeals enforcing an NLRB decision, highlight the risk an employer runs when it seeks to prohibit its employees from wearing buttons at work.

In order to foster its image as a "traditional American grill," the Daily Grill, a restaurant in Los Angeles, prohibited its employees from wearing union buttons while interacting with customers.

Although employees had been allowed to wear buttons such as “trainer” and “anniversary” pins, the restaurant threatened to discipline or sent home early several employees who, during a union organizing drive, wore small (one inch in diameter) UNITE HERE union buttons at work.

Under established National Labor Relations Board precedent, employees are allowed to wear union pins or buttons at work absent “special circumstances.” In the past, the NLRB has found special circumstances where the display of union buttons may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees.

The Daily Grill argued, and an NLRB administrative law judge (ALJ) found, that the restaurant’s ban on union buttons satisfied the special circumstances exception. According to the ALJ, the ban was lawful because it fostered the Daily Grill’s public image as a traditional American grill restaurant and that a consistent, customer-driven experience and atmosphere was at the core of the employer’s business model, and the uniform and professional appearance of its servers was part of that model.

The National Labor Relations Board disagreed. In Grill Concepts Services, Inc. d/b/a The Daily Grill and Unite Here, Local 11, the NLRB explained that when it is faced with an employer’s claim that its public image justifies a ban on union buttons, it considers the button’s physical appearance and message to determine if it interferes with the employer’s desired public image. Contrary to the ALJ, the NLRB found that the employer failed to justify its ban on union buttons because it “presented no evidence on how the Union’s small, inconspicuous, and non-inflammatory buttons would unreasonably interfere with a server’s ability to provide reliable service or interfere with the [restaurant’s] public image.”

In Boch Imports, Inc., d/b/a Boch Honda v. NLRB,the United States Court of Appeals for the First Circuit agreed with the NLRB that a unionized car dealer’s policy that prohibited “message” pins was not justified by special circumstances and violated employee rights under the National Labor Relations Act. In Boch Honda, the employer maintained a handbook policy that prohibited customer-facing employees from wearing, among other things “message” pins. Like the Daily Grill case, an NLRB ALJ determined that the employer’s interests in workplace safety and preventing damage to vehicles met the special circumstances standard and justified the ban. And like the Daily Grill case, the NLRB reversed the ALJ and determined that the employer had failed to meet the special circumstances exception because the ban on pins was overbroad. According to the NLRB, the restriction was overly broad because it applied to employees, e.g., administrative and finance employees, who had no contact with vehicles.

On appeal, the court agreed with the NLRB. The court was not persuaded that a “small and unobtrusive” union pin worn by non-uniformed employees would interfere with the general professional image the car dealer was trying to create. The court also agreed with the NLRB that the ban was overbroad. Although acknowledging that a pin could fall into an engine or scratch a vehicle, the court found the ban was not narrowly tailored to prevent those kinds of events from happening.

The First Circuit’s decision was not unanimous. Judge Stahl wrote a lengthy dissent challenging the majority’s ruling. He stated, “By rubber-stamping the Board's arbitrary infatuation with the uniqueness and uniformity of workplace dress codes, the majority has done little more than grant the Board the authority to play ‘fashion police.’”

As Judge Stahl pointed out, the law in this area has drawn employers into a “legal bog.” Employer decision-making on matters of buttons and pins in particular and dress codes in general is fraught with peril and requires the drawing of lines more nice than obvious. Employers should review their dress codes in light of cases like Daily Grill and Boch Honda to evaluate whether they will pass muster if challenged and to make appropriate changes if necessary.