An employer may prohibit employees from wearing union insignias on their uniforms, the 5th Circuit Court of Appeals ruled Tuesday, in a reversal of a previous decision from the National Labor Relations Board.
The ruling is based on a situation in which Tesla prohibited workers from wearing T-shirts displaying union insignias. The NLRB opined that any effort to quash union sentiments, including by forbidding the wearing union apparel, buttons and stickers, was unlawful on the face of it. The NLRB determined that the burden was on the employer to show special circumstances that justify their decision.
“[It’s] kind of a high bar to overcome that,” Labor Attorney Louis J. Cannon Jr., who is with Baker Donelson’s Baltimore office and a specialist in long-term care law, told the McKnight’s Business Daily.
Tesla appealed the decision to the 5th Circuit, which considered what the employer’s rule is for the restriction and whether it is lawful. The court found that unions can take issue with employer restrictions to some extent but that employers do not have carte blanche in establishing policies.
“But [unions] can’t come out of the gate and say that any kind of restriction is unlawful,” the lawyer explained.
“So I would say, the bottom line on the 5th Circuit’s opinion is that as long as you’re [the employer] not outright banning all union insignia of any kind, you’re probably going to be OK as long as you can articulate a reason why you’re restricting [buttons],” Cannon said. “So it’s going to really be more of a balancing test versus what the Labor Board has said, that we think all restrictions are illegal.”
An employer cannot, for example, prohibit union buttons and stickers while at the same time allowing employees to enforce sports team markings on their uniforms, he said. An employer cannot allow sports emblems and political campaign buttons but then draw the line at union insignia.
“You can’t all of a sudden care about your policy when it involves the union,” Cannon said.
Application in long-term care
The issue of wearing insignias is a little different in long-term care, however, according to Cannon.
“If you’re looking in the context of nursing homes or home health or anything in healthcare, if you’re directly interfacing with patients, the employer can restrict displaying union insignia on the uniform, ” he said.
In the instance of caregivers working directly with residents, he said, it would be akin to making a political statement.
“The idea is that it’s exactly like you’re bringing a charged issue in front of a patient who might be ill, and that’s just not right. We’re going to allow the employer [to place a restriction], Cannon said.
But this latitude to restrict symbols on uniforms only applies to resident-facing employees, he emphasized.
“And if you’re in that situation, the employer can tell you you can’t do it,” the expert said.
Gray areas exist, however, he added.
“And it becomes a little bit difficult to enforce that, because sometimes you have people who do spend part of their shift in private areas, but then they’re coming into patient care areas, and how do you deal with that?”