Posts Categorized: Resources

The National Labor Relations Board (NLRB) recently ruled that companies must prove that “special circumstances” justify policies restricting union insignia — or logos — on shirts. To show special circumstances, companies must provide evidence proving that legitimate and significant business considerations demonstrate that their operations require the restrictions.

In the case of Tesla, the NLRB ruled that during an organizing campaign at one of its plants, Tesla unlawfully told one worker that Tesla would send them home if they wore a UAW shirt again, and another that Tesla would send them home if they didn’t change their shirt. The black cotton shirt displayed the campaign slogan — “Driving a Fair Future at Tesla” — on the front, and a larger version of the slogan and “UAW” on the back.

Importantly, this decision reinstates the rule that grocery stores like Meijer or department stores like Nordstrom cannot justify restrictions of union insignia based on the image retailers wish to convey to the public, because the image of grocery and department stores do not rise to a level that constitutes special circumstances.

Tesla’s apparel policy mandated all workers to wear, unless approved by a supervisor, Tesla-assigned “team wear” consisting of black cotton shirts with Tesla’s logo and black cotton pants with no buttons, rivets or exposed zippers.

Overturning a Trump NLRB decision, the NLRB explained that the U.S. Supreme Court long ago ruled that the National Labor Relations Act (NLRA) protects the rights of workers to display union insignia, and whenever a company restricts this right, the NLRA requires the company to prove that special circumstances justify the restriction. Companies cannot avoid the requirement to prove special circumstances by consistently applying policies that require all workers to wear uniforms or other designated clothing. And, when special circumstances justify a policy, the policy must be narrowly tailored to the special circumstances only.

The NLRB found that special circumstances did not justify Tesla’s policy because Tesla failed to show that cotton shirts with non-Tesla logos posed a risk damaging or “mutilating” Tesla’s products or vehicles. None of Tesla’s witnesses testified that they knew of any occasion when a cotton shirt with a logo mutilated any vehicle or could explain how any shirt could possibly damage a vehicle. The only shirt that damaged a vehicle contained a raised metal emblem.

Thus, the NLRB found that, at most, Tesla showed that it had a legitimate interest in prohibiting shirts with raised metal emblems. And, because Tesla’s policy also prohibited shirts without metal emblems, Tesla’s policy was not narrowly tailored to address the concern of metal emblems.

The ruling also applies to contract campaigns and to other items displaying insignia such as stickers, buttons, lanyards, bracelets, jackets and caps. The case is Tesla, 371 NLRB No. 131 (Aug., 22, 2022). If you have any questions regarding this ruling, have your Region Director contact George Wiszynski in the Legal Department at gwiszynski@ufcw.org.

The UFCW recently held its biannual Attorneys Conference for local union attorneys in Milwaukee. The conference covers legal issues and principles arising from newly decided cases or enacted laws, and other laws and strategies that attorneys can use to represent local unions more effectively. In addition to the presentations they make to the group, panelists also write papers that further explain their topics that attorneys can refer to in the future.

UFCW International President Marc Perrone opened the conference by thanking the attorneys for their service and emphasizing the important role the attorneys play in the mission of the UFCW. Following Perrone, one panel highlighted parts of collective bargaining law that new – and even some experienced – attorneys may not be as familiar with that locals could use to leverage better contracts and block companies from acting unilaterally without bargaining with the union.  The newest member of the International Legal Department, Sarah Anderson, wrote a paper that comprehensively discusses collective bargaining law.

Diversity, equity and inclusion speaker Daniel Juday facilitated two workshops to help participants work more productively with attorneys who are different than they are, including female, young and LGBTQ attorneys, and attorneys of color. To get the most from all attorneys at firms and legal departments, the workshop encouraged attorneys to try to avoid assuming things about other people and instead ask and listen to the other attorneys. For example, instead of assuming that a single parent would not want to attend an after-work social function, Juday encouraged attorneys to ask if the single parent would like to attend because the parent may want to be included in the networking and be able to arrange for childcare.

National Labor Relations Board (NLRB) Member Gwynne Wilcox and General Counsel Jennifer Abruzzo also spoke. Wilcox updated the group on what the NLRB has accomplished so far this year, and Abruzzo emphasized the changes to labor law she would like to make to make it easier for workers to join unions. Following up on the general counsel’s talk, another panel discussed the specific Trump NLRB cases that the UFCW hopes the Biden board will overturn. International Vice President and Director of the International’s Legislative and Political Action Department, Ademola Oyefeso, provided an update on state legislation benefitting UFCW members and protecting their right to vote.

An organizing panel described how to use “Armour-Globe” elections to organized workers in departments adjacent to bargaining units. Armour-Globe elections give workers in departments the right to vote to join the bargaining unit. Another speaker emphasized that all UFCW contracts should include “new store” clauses that bring new stores and facilities under the contract. The speaker reminded attorneys that locals should remember to use past practices that require the company to remain neutral and grant access to the union to establish the union’s majority in the new store.

The UFCW’s Digital Department Director, Rachelle Netzer, described how unions can use social and digital media to organize workers, and mobilize customers and communities to support bargaining and organizing campaigns. Finally, a panel discussed the UFCW’s cannabis organizing campaign. One panelist described how locals should use just cause clauses to win grievances challenging discipline and discharge for workers who test positive for drugs and how to undermine the attempts of companies to rely on drug policies to justify discipline or discharges for those workers who test positive.

On the last day, a panel discussed legal issues affecting meatpacking and poultry workers, including line speed litigation, advice on how to navigate the Biden administration’s immigration enforcement policies, and health and safety. The last panel addressed issues related to union governance, such as union officer elections, union finances and what to do if the U.S. Department of Labor audits a union.

All papers and other presentations are available on the International Legal Department’s website. Attorneys who would like to access these materials should contact Alita Washington in the Legal Department at awashington@ufcw.org.