The U.S. 5th Circuit Court of Appeals (the federal appeals court covering Texas) recently gave a green light to a dress code rule at a Telsa facility manufacturing electric cars. Read on.
Dress for Success
The Telsa facility gave each production employee what it called Team Wear: four black shirts and a black sweater, each featuring the company name and logo. Here was the rule:
It is mandatory that all Production Associates and Leads wear the assigned Team Wear. On occasion, Team Wear may be substituted with all black clothing if approved by a supervisor. Alternate clothing must be mutilation free, work appropriate, and pose no safety risks (no zippers, yoga pants, hoodies with hood up, etc.).
Employees understood that mutilation-free meant anything that would cause abrasions, buffs, chips, cuts, dents, or scratches to the inside or outside of a vehicle.
The Rule v. NLRB
The rule, however, was tested legally when the United Autoworkers (UAW) sought to form a union at the plant. Some production employees started to wear black UAW logo shirts rather than Team Wear. When Telsa concluded the shirts were marring the cars, it forbade employees from wearing them.
The National Labor Relations Board (NLRB) sided with the UAW, holding an employer violates the National Labor Relations Act (NLRA) whenever it interferes “in any way” with its employees’ right to display union insignia. The burden is then on the employer to establish “special circumstances” justifying the union insignia ban. Under this pro-union standard, the UAW won. Put differently, the Board’s rule presumes a violation at the outset of the legal analysis.
Appeals Court Rules NLRB Went Too Far
On appeal, the 5th Circuit disagreed. It found that a presumption isn’t a fair balancing of the interests of employees in organizing a union and of the employer in managing its business. And those interest would include:
- Production concerns;
- Using a uniform requirement to promote an esprit de corps; and
- Promoting discipline and uniformity.
Because the Board used an incorrect legal standard, the appeals court set aside the order that the NLRA was violated. Telsa Inc. v National Labor Relations Board (5th Cir., November 14, 2023).
Bottom Line for Employers
Always ask yourself: What is the factual basis for this rule? What are the facts—not the suppositions—supporting your proposed rule? If you can’t articulate the reason, rethink the need for the rule or rewrite its language or, guess what, reject the rule outright.
Here, Telsa has reasons for its rule.
Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@unt-dallas.edu.
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