Why it matters

The First Circuit Court of Appeals recently sided with the National Labor Relations Board (NLRB) in the NLRB's continuing enforcement activity related to certain provisions in employment agreements. The case involved union workers at Boch Imports that protested a company rule banning employees from wearing pins, insignia, or "message clothing." An administrative law judge agreed that the dress code violated the employees' rights under the National Labor Relations Act (NLRA) and the NLRB affirmed in 2015. The car dealership appealed to the First Circuit, but the majority of a three-judge panel upheld the NLRB's decision. The NLRB's ruling was "supported by substantial evidence and by reasoning that is not arbitrary and capricious," the court wrote. One member of the panel dissented, writing that he believed the employer had demonstrated "special circumstances" warranting the dress code and expressing concern about the NLRB—and the court system—acting as "fashion police."

Detailed discussion

Boch Imports, a Massachusetts-based car dealership, provided a handbook to employees in 2010 that included a "Dress Code and Personal Hygiene Policy." The policy stated: "Employees who have contact with the public may not wear pins, insignias, or other message clothing."

Union members filed a charge with the National Labor Relations Board (NLRB) arguing that the rule violated Section 8(a)(1) of the National Labor Relations Act (NLRA) as it interfered with employees' Section 7 rights.

An administrative law judge (ALJ) agreed and ordered the rule to be struck from the handbook, with notice of the action posted at the employer's worksite, but ruled that the pins could be prohibited because they posed a safety risk. Boch appealed. A split panel of the NLRB affirmed the ruling with regard to the dress code and reversed on the issue of pins, finding that the employer failed to justify the ban.

Given the "well settled" rule that an employer violates Section 8(a)(1) by prohibiting employees from wearing union insignia at the workplace absent special circumstances and a narrowly tailored rule, the majority of the panel found that the dealership's policy could not survive scrutiny.

"Clearly, the [dealership's] proscription curtails employees' Section 7 right to wear union insignia," the NLRB wrote. "As such, it is overly broad. Absent special circumstances, then, it is unlawful." The dealership's justification for the rule—maintaining its public image—did not constitute a special circumstance justifying its prohibition, the majority said.

Boch appealed again, this time to the First Circuit Court of Appeals. The panel upheld the NLRB's decision, which it said used an approach that attempted to "strike a balance between the employer's legitimate business interests and the statutorily protected workplace rights to organize."

Despite the dealership's argument that the dress code was intended to further its goal to cultivate a general, professional environment, the court said this was not enough. Boch did not provide evidence that the dress code was intended to create a specific and unique environment and the employer was willing to tolerate a fair amount more variation in dress as to the employees to whom the ban applied than in cases where the NLRB upheld dress codes to create a "unique, fantasy-like ambiance."

"Boch simply failed to explain why the additional increment of variation that might arise from non-uniformed employees' wearing a small and unobtrusive union pin (for example) would unreasonably interfere with the general professional environment Boch sought to create," the panel wrote. "After all, it stands to reason that the more distinctive the public image the employer seeks to cultivate, and the less variation in dress the employer permits in promoting that image, the more likely any deviation in employee dress will unreasonably interfere with the employer's promotion of that image."

The court was not persuaded by the fact that the dress code was not promulgated in response to union activity or enforced in a discriminatory manner. "[W]hile the presence of these circumstances may constitute grounds forinvalidating a dress ban, it does not necessarily follow that the absence of these circumstances constitutes a ground for upholding a dress ban of this breadth."

As for Boch's interests in promoting workplace safety and preventing damage to vehicles as justification for its ban on pins, the dress code "was not narrowly tailored to address the safety and damage risks that Boch itself identified, insofar as the ban was neither crafted narrowly to target, nor was intended to target, Boch's claimed interests in workplace safety and preventing damage to vehicles," the court's panel majority wrote.

The pin ban applied to employees who do not typically have contact with vehicles (such as administrative and finance personnel) and during the performance of tasks that did not require vehicle contact. "[T]he burden was on Boch to prove that special circumstances justified the scope of the ban, and it was thus incumbent on Boch to explain why a ban that applied as broadly as the Board found this one to apply was warranted," the court said. "[T]he record provides scant basis for concluding, as Boch contends, that a ban on pins of this breadth was needed, either for reasons of safety or for reasons of preventing damage to vehicles."

A dissenting member of the panel wrote that he believed the car dealership sufficiently demonstrated "special circumstances" warranting its policy. The judge decried what he characterized as "the silent, unexplained creep" of the NLRB's presumptions and wrote that an employer should be able to "demonstrate special circumstances as a matter of law if the employer reasonably believes that a dress code will enhance its public image and the employer shows that it has maintained, and neutrally enforced, a clear and consistent dress code policy for public-facing employees who are on duty."

Further, "none of this is the Board's concern," according to the dissenting opinion. "By rubber-stamping the NLRB'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.' "

To read the opinion in Boch Imports, Inc. v. NLRB, click here.