Many employers are surprised to learn that employees have a “presumptive right” to wear union insignia and to display pro-union messages on shirts, badges, or buttons while working, even when the employer finds the message objectionable. However, employers can enforce narrowly drawn restrictions against the wearing of union insignia if they demonstrate “special circumstances” that justify the restrictions. In an Advice Memorandum issued on November 28, 2012, the NLRB’s Division of Advice determined that an employer satisfied the “special circumstances” test when it prohibited attorneys in its law department from wearing any kind of t-shirt, including t-shirts displaying pro-union messages.
The New York State Public Employee Federation (a union) employs a variety of staff personnel, including attorneys in its legal department. The Federation’s non-supervisory employees are represented by United Steelworkers Local 9265. During protracted negotiations for a new labor agreement covering the Federation’s represented employees, the Steelworkers distributed bright red t-shirts to its members with the message “Unionism Begins at Home” printed on the front. The Steelworkers urged all of its members to wear the t-shirts on a particular day, in a show of solidarity. When five out of the six attorneys in the Federation’s legal department wore the t-shirts on the designated date, the Federation’s general counsel sent an e-mail message to the attorneys stating “T-shirts are not acceptable attire in this office. Please do not wear them while you are in this office.”
The Steelworkers union filed an unfair labor practice charge, alleging that the Federation had interfered with the attorneys’ right to engage in concerted activities in support of the Steelworkers’ bargaining positions. The Federation defended its decision to prohibit the attorneys from wearing the t-shirts on the basis that the legal department maintained an informal policy requiring its attorneys to wear “professional attire” at all times. The Federation explained that it intended its legal department to have the feel of a private law firm. It housed the department in a separate suite of offices, and had previously enforced its professional image policy in other circumstances, such as when an attorney wore jeans to work on a Friday.
The NLRB Division of Advice concluded that under these particular circumstances the Federation had not committed an unfair labor practice. The advice memorandum explains that if the “display of union insignia unreasonably interferes with a public image which the employer has established, as part of its business plan, through appearance rules for its employees,” the employer may lawfully prohibit the display in question. The division cited other situations in which the Board has permitted employers to enforce non-discriminatory dress codes against employees who desired to display union insignia, including one case in which an employer prohibited hotel staff from wearing union buttons on all-black uniforms that were designed to create a “special atmosphere” in the hotel, and another case in which an employer prohibited security guards from wearing union insignia on their uniforms because of potential interference with the message of authority the uniform was intended to convey.
The division emphasized that a dress code must be “narrowly tailored” and infringe “as little as possible” on employees’ Section 7 rights in order to be enforceable. In that regard, the division noted that the Federation only enforced its “no t-shirt” rule against the attorneys in its legal department, allowing staff attorneys in other departments to wear the t-shirts. Further, the Federation allowed the attorneys in the legal department to wear union pins with their business attire, and to display pro-union messages at their desks.
This advice memorandum is significant in that it demonstrates the Board’s continuing willingness to consider an employer’s well-established and legitimate business interests, and to at least balance those interests against employees’ rights under Section 7. As has long been the case, employers will find that dress codes that have been established and enforced in the absence of any concerted activity are more likely to withstand scrutiny than policies targeted at unionism or other collective action in the workplace. The default rule remains that employees have a protected right to display union propaganda at work. But, where an employer can identify a significant business interest – other than mere opposition to the union’s message – that supports a non-discriminatory limitation on the employees’ activity, the employer may be able to satisfy the “special circumstances” test.