Customer Engagement Alone Does Not Justify Banning Union Insignia on Uniform, says NLRB

The National Labor Relations Board recently held that an employer’s enforcement of its apparel guidelines to ban the wearing of union insignia violated the National Labor Relations Act (NLRA). In Indiana Bell Telephone, the Board found that an employer manager unlawfully directed an employee to remove a union button prior to leaving its garage and going to customer homes, and then threatening the employer with discipline up to termination if the employee failed to comply with the directive.

Facts: The employer employs premises technicians who install high-speed internet services and related products in customer homes. They are subject to a mandatory dress code requiring them to wear branded company apparel. The employees are represented by a union, and the parties’ CBA notes that the branded apparel “may not be altered in any way.”

Prior to bargaining for a new CBA, the union distributed red buttons that included the union’s logo and bargaining-related messages for premises technicians to wear in support of the union. An employer manager directed a premises technician to remove the button from his company-branded shirt as he was leaving the employer’s garage. When the employee refused, the manager threatened him with discipline, including termination.

In agreement with the administrative law judge, the Board held that the employer’s enforcement of its appearance guidelines violated the NLRA. The employer argued that the enforcement of its policy was justified by its desire to “enhance the customer experience and project a positive public image” of the company to customers. The Board rejected this argument for two reasons. First, employees did not encounter customers while at the employer’s garage. Second, and in any event, it is established Board law that customer engagement alone is not a special circumstance justifying the banning of union insignia.

Takeaway: Unionized employers may not enforce dress code policies to prohibit the wearing of union insignia unless permitted by a CBA or justified by a “special circumstance” established by NLRB case law. But these bans will not be upheld, even by a pro-employer Board, where the only justification is related to customer engagement.