The National Labor Relations Board (“Board”) has been sticking its nose in unexpected places in the last few years like the affairs of nonunion workplaces, the handbooks and policies of all employers, and now fashion. The Board recently decided two cases, one involving baseball caps and the other t-shirts, and in both cases ruled the employers’ broad prohibitions regarding clothing were unlawful.
In Quad Graphics, Inc., an Administrative Law Judge (“ALJ”) of the Board decided the employer’s policy which did not allow employees to wear any baseball caps at work unless the cap was facing forward and was ordered from the employer, was unlawful. Generally, under the National Labor Relations Act, employees’ rights include the right to wear clothing with union insignia unless there are special circumstances that outweigh the resulting adverse effects on employees’ rights. The employer argued the baseball cap rule related to: ensuring workplace safety, minimizing gang-related issues, and maintaining positive customer relations. The ALJ rejected these arguments because there was no evidence supporting any of these claims. The ALJ found the policy was overbroad and unlawful because it prohibited employees from wearing caps with union insignia and other protected messages.
In another case decided the same month, Alma Products Co., an ALJ found a policy restricting clothes with messages that were “derogatory to the company” was overbroad and unlawful. Employees were wearing shirts with the word “slave” and a ball and chain on them. These shirts were purchased years before during a contract dispute. To stop this, Human Resources drafted a dress code that read in part, “clothing displaying vulgar/obscene phrases, remarks or images which may be racially, sexually or otherwise offensive and clothing displaying words or images derogatory to the company will not be allowed in any facilities. . . if you are uncertain whether an article of clothing is appropriate under this policy, follow the old adage of better safe than sorry and refrain from wearing it at work.” After this policy was put into effect, an employee wore the shirt in support of the union and was asked to turn the shirt inside out or go home. He chose to go home.
The employer claimed the rule was in place to prevent employees from wearing racially offensive clothing like the “slave” shirt. The ALJ rejected this argument as disingenuous, in part because the shirts had been worn for many years before without concern from the employer. The ALJ ruled the employer’s policy was overbroad and that the employee was improperly sent home. The ALJ found the prohibition on “derogatory statements” and the “better safe than sorry” language was too broad and could be interpreted by employees as restricting their Section 7 rights. Further, the ALJ pointed out that there was no language protecting Section 7 rights.
These cases reflect a trend we have seen where the Board outlaws company actions and rules unless there is a specific need (often reflected in an actual problem or complaint that arose, e.g., a gang incident) and the rule is written as narrowly as possible. In both of the cases above, these general conditions were not met. In light of these and other decisions, now is a good time for employers, both union and nonunion, to review their uniform or dress code policies. If there is a specific reason for a policy to be very broad/strong, consider explaining that in your rule. Also, the broader the rule, the more you should consider adding language that specifically protects the Section 7 rights of employees.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
