Tesla Violated Workers’ Rights By Banning Pro-Union Shirts, Labor Board Rules

Tesla violated federal labor laws when it banned workers from wearing shirts with union insignia at its California warehouse as workers waged a union drive in recent years, the National Labor Relations Board (NLRB) ruled on Monday.

In 2017, Tesla banned its workers from wearing shirts with logos other than Tesla’s after workers began wearing shirts displaying a small United Auto Workers (UAW) logo, which the American Federation of Labor and Congress of Industrial Unions (AFL-CIO) said were designed specifically to meet the company’s dress code.

Though it is unlawful for employers to bar employees from wearing union insignia at work, a NLRB ruling in a 2019 case involving Walmart established that employers could do so in special circumstances. Monday’s 3-2 decision overruled that case, affirming that interfering in any way with a worker’s right to wear union insignia is “presumptively unlawful” and that Tesla had failed to establish a special circumstance justifying its ban.

“Wearing union insignia, whether a button or a t-shirt, is a critical form of protected communication,” NLRB Chair Lauren McFerran said in a statement. “For many decades, employees have used insignia to advocate for their workplace interests — from supporting organizing campaigns, to protesting unfair conditions in the workplace — and the law has always protected them.”

Though the ruling overruled the Walmart case, the precedent established by that case is still in place; in other words, there are still special circumstances in which the NLRB may allow employers to restrict workers from wearing union insignia. Walmart had argued, for instance, that union employees in customer-facing positions needed to maintain a professional appearance and that union insignia may distract from the shopping experience.

McFerran had dissented from the Republican-majority opinion in 2019, arguing that it not only ignored NLRB precedent but also Supreme Court precedent establishing workers’ rights to wear union insignia.

The UAW, which was involved in the dispute against Tesla, praised Monday’s decision.

“This a great victory for workers who have the courage to join together and organize in a system that is currently stacked heavily in favor of employers like Tesla who have no qualms about violating the law,” UAW Vice President Cindy Estrada said in a statement.

“While we celebrate the justice in today’s ruling by an increasingly pro-worker NLRB, it also nevertheless highlights the substantial flaws in U.S. labor law,” Estrada went on. “Here is a company that clearly 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.”

Tesla and its CEO Elon Musk have broken federal labor laws several times in quashing workers’ attempts to form a union. Last year, the board found that Tesla had unlawfully fired a pro-union worker and illegally threatened and interrogated pro-union workers.

The board also previously ordered the deletion of a 2018 tweet from Musk discouraging his workers from unionizing, reiterating an order from a judge who ruled that the tweet was illegal in 2019.

“Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw if they wanted,” Musk had written. “But why pay union dues & give up stock options for nothing? Our safety record is 2X better than when plant was UAW & everybody already gets healthcare.”

Despite the order, the tweet has not been deleted.