NLRB GC Urges Board To Keep Rule Allowing Employees To Wear Union Insignia

The union insignia battle is heating up once again. And a key official is pushing for the union side.

Bloomberg Law reports:

“The National Labor Relations Board’s top lawyer urged the board to retain its legal framework for wearing union insignia in a case involving Tesla Inc., instead of expanding employer power to bar workers from wearing symbols of organized labor.

Acting General Counsel Peter Sung Ohr’s views generally line up with those of several unions that also submitted briefs in the Tesla case on Monday. The NLRB should keep the Obama-era test requiring employers to identify “special circumstances” that justify prohibiting workers from wearing union insignia—even when a workplace rule doesn’t specifically ban union symbols, they said.

The U.S. Chamber of Commerce, HR Policy Association, and other business groups filed briefs asking the NLRB to retool its union insignia standard, which they said puts an excessively high burden on employers to prove their neutral uniform policies comport with federal labor law.

Ohr’s brief is another sign of his willingness to carry out a pro-union agenda even as the Biden administration’s general counsel nominee Jennifer Abruzzo waits for Senate consideration. Ohr, in one of his first acts as the head of the NLRB’s legal arm, cited the National Labor Relations Act’s stated goal of encouraging collective bargaining and protecting workers’ rights. He also said he wouldn’t spend his time in office as a “potted plant.”

The NLRB is reviewing an administrative law judge’s ruling that Tesla violated labor law by prohibiting production associates from wearing union shirts. The shirt ban was one of a series of unfair labor practices the judge found in her 2019 decision, which also included CEO Elon Musk’s 2018 tweet suggesting employees would lose out on stock options if they joined a union.

The board’s Republican majority—slated to control the board at least until one of the three GOP members leaves in late August—asked the public last month to submit briefs weighing in on whether it should change its legal test for union insignia.

The basic framework governing employer restrictions on union symbols flows from the U.S. Supreme Court’s 1945 ruling in Republic Aviation v. NLRB. For a rule against wearing union insignia to pass legal muster, the employer must show special circumstances make the rule necessary to maintain production or discipline, the court said.

At issue in the Tesla case is the NLRB’s 2010 ruling in Stabilus, which said the requirement to identify special circumstances remains when employers indirectly prevent workers from wearing union symbols by requiring them to don uniforms or other specific pieces of clothing.”

For the rest of the story, visit Bloomberg Law here.

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