It is a long-established principal that under the National Labor Relations Act, employees have the right to wear union insignia on their work uniforms, unless doing so would present special circumstances, such as a safety hazard. It is equally established that employers may require that employees wear certain apparel as part of an approved work uniform. Not surprisingly therefore, tension – and thus litigation – often arises when an employer’s uniform policy is alleged to intrude on employees’ right to wear union buttons, pins, and other items. That was the situation in a recent case involving a Nevada printing company called World Color (USA) Corp.
In that case, the employer maintained a policy that allowed employees to wear baseball caps at work, but only a baseball cap bearing the company’s logo, and not any other baseball cap. The union representing World Color’s employees filed an unfair labor practice charge with the National Labor Relations Board, alleging that this rule infringed on the employees’ right to wear union insignia on their uniform.
After a hearing, an administrative law judge concluded that rule was overbroad and unlawful because it prohibited employees from wearing union baseball caps and that World Color had failed to demonstrate special circumstances warranting a company hat-only rule. In February 2014, the NLRB affirmed this finding, stating that it was “undisputed that the policy on its face prohibits employees from engaging in the protected activity of wearing caps bearing union insignia.”
World Color appealed to the United States Court of Appeals for the District of Columbia. It argued that, contrary to the NLRB’s finding, there was a dispute over whether its policy facially prohibited the wearing of union insignia. The company explained that its policy prohibited wearing any hat other than a company logo hat, but it did not prohibit employees from accessorizing that hat with union insignia, and therefore it was not overly board and unlawful.
The court agreed with World Color, finding that the NLRB had improperly “short-circuited” its analysis by concluding that there was no dispute that the policy facially prohibited union insignia on uniform hats, and stating “[a]though the hat policy restricts the type of hat that may be worn, it does not say anything about whether union insignia may be attached to the hat.” Because the NLRB’s erroneous conclusion regarding the rule’s supposed facial invalidity tainted its decision, the court reversed the NLRB and remanded the case for reconsideration.
Presumably the NLRB’s reconsideration on remand will involve an analysis under the Board’s familiar two-step inquiry from Lutheran Heritage Village Livonia. Under that standard, a rule will be found unlawful if it restricts protected activity on its face. If it doesn’t, under the second step of the test, the rule may still be deemed unlawful if it was promulgated in response to union activity, if it was applied to restrict union activity, or if employees would reasonable interpret the rule as prohibiting union activity.
Given the court’s holding that World Color’s company hat-only rule does not restrict union activity on its face, it’s a certainty that on remand, the NLRB will be limited to analyzing the rule only under the second step of the Lutheran Heritage Village Livonia test. Where it will come out on that is difficult to say, and may well depend on which NLRB members are on the panel that reconsiders the case on remand. It’s possible that the Board could conclude that the policy is lawful, or it could conclude that because the policy does not specifically advise of the right to wear union insignia on company hats, employees would reasonably construe the policy to prohibit doing so, and thus the policy is unlawful (no doubt, an outcome that would be likely to generate a second appeal). Although we will have to wait and see, this case does have broader significance than just one employer’s uniform policy. As those who have been following the NLRB’s activities over the past two years know, the Board has been aggressively reviewing – and finding unlawful – seemingly innocuous and sensible employer policies. World Color (USA) Corp. is a good example of how judicial oversight of those decisions may rein in the Board’s attempt to police even the most mundane of workplace policies.