U.S. appeals court questions NLRB ruling on Tesla’s uniform policy and union rights

A U.S. appeals court panel in New Orleans has raised questions about a National Labor Relations Board (NLRB) ruling that accused Tesla of violating factory workers’ rights by prohibiting them from wearing t-shirts supporting a union campaign.

Tesla’s uniform policy, implemented in 2017 during a campaign by the United Auto Workers union (UAW) to organize production workers, required employees at its Fremont and Giga Nevada factories to wear black shirts with Tesla logos. The NLRB deemed this policy illegal, citing a lack of “special circumstances” justifying restrictions on union attire. However, Tesla’s allowance of union stickers raised questions during oral arguments.

According to a report from Reuters, the 5th Circuit judges this week expressed skepticism about the NLRB’s stance, suggesting that Tesla might not have needed to prove special circumstances for its uniform policy since it only restricted t-shirts, not all union insignia. Circuit Judge Jerry Smith pointedly asked why stickers conveying pro-union messages wouldn’t suffice as a means of communication.

Circuit Judge Stephen Higginson echoed this sentiment, emphasizing that the ban on prohibiting union insignia in federal labor law did not necessarily require employers to permit all union-related apparel. Tesla’s policy, which allowed for the attachment of union-related stickers to company shirts, was seen by the company’s legal representatives as an adequate compromise.

Michael Kenneally, representing Tesla, argued that upholding the NLRB’s decision would render decades-old company uniform policies illegal unless companies could justify them. He stressed that Tesla’s policy provided alternative means for workers to express their union support, such as the use of stickers, without significantly infringing on their ability to communicate their stance.

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