A National Labor Relations Board (“NLRB”) Administrative Law Judge (“ALJ”) partially invalidated a Honda dealer’s dress code that prohibited employees who have contact with the public from wearing pins, insignia or other message clothing. A copy of the decision is attached here. Even though the work rule applied to all messaging regardless of the topic, the ALJ concluded that the rule violated the employees’ rights to display union insignia in the workplace.
In reaching his conclusion, the ALJ relied on the NLRB’s longstanding holding that employees have the presumptive right to wear union insignia at work. An employer seeking to overcome this presumption must establish special circumstances that make the rule necessary to maintain production or discipline, or to ensure safety. Such special circumstances include situations where wearing messages may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with an employer’s public image, or may be necessary to maintain decorum and discipline among employees.
As the ALJ noted, “In determining whether an employer, in furtherance of its public image business objective, may lawfully prohibit uniformed employees who have contact with the public from wearing union insignia, the [NLRB] considers the appearance and message of the insignia to determine whether it reasonably may be deemed to interfere with the employer’s desired public image.” Notably, customer exposure to union insignia, alone, is not a special circumstance allowing the employer to prohibit its display.
The ALJ did uphold the employer’s prohibition on employee-worn pins because the pins could potentially damage a vehicle or injure a service technician.
This case serves as yet another reminder that the NLRB will continue its heightened scrutiny of employee handbook provisions. Whether the NLRB will extend this ruling to non-union employers remains to be seen. Employers are encouraged to review the longstanding personnel policies that they may have taken for granted to ensure they will withstand this NLRB scrutiny.