In Wal-Mart Stores, Inc., the National Labor Relations Board addressed whether a dress code policy that limits, but does not prohibit, the wearing of union insignia violates the National Labor Relations Act.

Wal-Mart maintains a dress code policy permitting employees to wear logos and insignia, including union insignia, provided that the logos or graphics are no larger than the employee’s name badge and are “non-distracting” in nature. Indeed, Wal-Mart had permitted employees to display union insignia that complied with its policy. This charge, however, resulted from Wal-Mart’s prohibition of a pro-union pin that was larger than the size permitted in the dress code policy. An administrative law judge founds that Wal-Mart failed to demonstrate special circumstances requiring that the logos and graphics be “small” and “non-distracting,” and thus the policy violated Section 8(a)(1) of the NLRA.

In The Boeing Company (which we discussed in detail in a December 2017 E-lert), the Board divided workplace rules into three categories, depending on whether they (1) are lawful, (2) warrant individualized scrutiny, or (3) are unlawful under the National Labor Relations Act. The Board first found that the Boeing framework for analyzing facially neutral work rules was the appropriate standard for determining the lawfulness of the dress code policy. Next, the Board found that the maintenance of the rule had both lawful and unlawful applications. The Board held that the rule was lawful as to its application to areas of Wal-Mart’s stores where employees encounter customers in the course of performing their jobs (the “selling floor”). The Board reasoned that Wal-Mart’s justifications for the policy – enhancing customer service and protecting merchandise from theft and vandalism – outweighed the effect on an employee’s right to wear union insignia. The Board, however, found that the rule was unlawful as to its application to work areas away from the selling floor, where Wal-Mart’s above justifications were much weaker. There, the Board reasoned that Wal-Mart’s justifications did not outweigh the impact on employees’ right to wear union insignia.

The takeaway here is that the Board will scrutinize content-neutral dress code rules on a case-by-case basis. Thus, an employer must be prepared to offer legitimate business justification for rules that limit the wearing of union insignia. But this decision indicates that the Board may be more accepting of such rules in customer-facing areas of an employer’s operation, while being less forgiving where the rules are applicable to other work areas, absent a strong justification for the rule by an employer.