National Labor Relations Board rules Tesla restrictions on T-shirts violate workers’ Free Speech rights

Picture: Herr Olsen

The National Labor Relations Board ruled that Tesla violated labor laws when it prohibited workers from wearing pro-union t-shirts. The ruling overturned a Trump-era decision that gave employers more leeway to impose certain apparel restrictions.

Key Players

Tesla, an American multinational automotive and clean energy company, had implemented a “team-wear” policy in its Fremont, California, assembly plant, requiring workers to wear either black T-shirts with the Tesla logo or, with special permission from supervisors, all-black T-shirts. 

The National Labor Relations Board (NLRB), an independent federal agency, enforces laws around collective bargaining and unfair labor practices. Members of the five-person board, appointed by the president and confirmed by the U.S. Senate, serve five-year terms. The general counsel, appointed by the president, serves a four-year term and investigates and brings legal actions against allegedly unfair labor practices. Allegations of such practices are reported to NLRB regional offices, and an administrative law judge decides whether a case should be heard. Rulings can be appealed to federal appellate courts. 

Further Details

Tesla’s team-wear policy originated from a 2017 dispute with the United Auto Workers (UAW) union, according to Business Insider. Some Tesla employees at its Fremont factory had worn plain T-shirts with union logos. Workers, with support from the UAW, challenged the policy as a violation of established protected rights in the workplace.

In a 2018 hearing, former employees testified that Tesla used the team-wear policy to target pro-union clothing, stating that supervisors ordered them to remove T-shirts supporting the UAW, but allowed other T-shirts, such as those for sports teams, without repercussions, per the Los Angeles Times.

On Aug, 29, 2022, the NLRB ruled that Tesla’s team-wear policy violated the National Labor Relations Act of 1935, as well as Supreme Court precedent regarding Free Speech, maintaining that wearing union insignia was a “critical form of protected communication.”

The decision reaffirmed decades of precedent protecting workers’ rights to wear union apparel and buttons in the workplace. The NLRB held that if employers interfere with workers’ rights to display union insignia, the employers must establish special circumstances that show the rule is “necessary to maintain production or discipline.” 

The NLRB rejected Tesla’s argument that its team-wear policy intended to prevent damage to cars throughout production, as well as the company’s rationale that employees were able to display other union insignia on the job. The decision also overturned a ruling under former President Donald Trump that allowed employers to justify apparel restrictions because of “special circumstances.” 

In 2019, the NLRB ruled that Walmart could restrict union insignia to enhance “the customer shopping experience” and prevent “theft or vandalism.” Walmart’s policy prevented employees from wearing various apparel items, including wristbands and buttons larger than their name tags with Bible verses, which worker advocacy group United for Respect claimed was due to the verses’ connections with union drives at Walmart stores. 


UAW vice president applauds decision, but calls out ‘substantial flaws’ in labor law

Following the ruling, UAW Vice President Cindy Estrada commended “an increasingly pro-worker” NLRB, but criticized other modern-day challenges to union organizing in the United States. Tesla took “numerous aggressive and unlawful steps to block workers’ rights, and yet it is more than four years down the road before workers see a modicum of justice,” Estrada stated

The UAW has committed to increased membership and continued union drives at various automobile factories across the country. 

Tesla unionization struggles continue 

Per the ruling, Tesla must advise current employees that its “team-wear policy” has been rescinded or revised and provide a copy of any amended policy, CNBC reported. 

The decision marked a new loss for Tesla before the NLRB. In 2021, the board ruled that Tesla had violated multiple labor laws when it prohibited workers from discussing organization or work conditions, “coercively interrogating” workers on union activities, using gag orders to prevent workers from talking to the media, and firing Richard Ortiz, a former Tesla factory worker and union activist, in 2017. 

The 2021 decision also ruled that Tesla CEO Elon Musk “unlawfully threatened” workers in a 2018 tweet, in which Musk suggested they might lose their stock options if they unionized. The NLRB had ordered Tesla to rehire Ortiz, and Musk to remove his tweet. 

As of August 2022, the workers at none of Tesla’s facilities in California, Nevada, New York, or Texas were represented by labor unions. 

On Sept. 6, Tesla petitioned the U.S. Fifth Circuit Court of Appeals to review the decision by the NLRB. As of Oct. 11, the petition for review was still pending.