By Nelson Cary and George Stevens
On January 16, the U.S. Court of Appeals for the D.C. Circuit gave a victory, of sorts, to an employer concerning company hats and uniforms. The Court of Appeals found that an employer might be able to lawfully enforce a uniform policy that requires employees to wear company hats, as long as the employer’s policy permits employees to put union patches, pins or other logos on the company hats. With its ruling, the Court of Appeals sent the case back to the NLRB for reconsideration.
The case involved a World Color Corp. printing facility in Nevada. The company maintained a safety policy that required workers’ hair hanging past their collar be secured to their head while in production areas. The employer’s policy also prohibited baseball caps, except company baseball caps worn with the bill facing forward. The company also maintained a general uniform policy, which allowed workers to accessorize their uniforms, provided they did so in good taste.
The Graphic Communications Conference of the International Brotherhood of Teamsters filed an unfair labor practice charge before the NLRB, arguing that the hat policy interfered with workers’ Section 7 rights insofar as it prevented them from wearing Teamsters’ hats at work. The company argued that the policy was justified by special circumstances involving the safety of press operators, employee presentation, and concerns about gang activity.
The NLRB’s Administrative Law Judge found that the hat policy violated workers’ Section 7 rights because it discriminated against unions. The ALJ determined that the hat policy was separate and distinct from the company’s uniform policy, determined that the company had not substantiated its claims of special circumstances, and recommended an order barring the company from enforcing the policy. The company filed exceptions to this decision with the NLRB, which accepted the ALJ’s determination that the hat policy was distinct from the uniform policy.
However, the NLRB found that the policy violated Section 7 not because it was discriminatory, but because it was overbroad, ruling that it was “undisputed that the policy on its face [prohibited] employees from engaging in the protected activity of wearing hats bearing union insignia.” The company petitioned the U.S. Court of Appeals for the D.C. Circuit for review.
The Court of Appeals noted that the inquiry into an alleged Section 7 violation involves two steps. First, the NLRB looks to see if the challenged policy explicitly restricts Section 7 activity on its face. If it does not, the NLRB then is to determine whether: (1) workers would reasonably understand the policy’s language to prohibit Section 7 activity, (2) the policy was promulgated in response to Section 7 activity, or (3) the policy has been applied to restrict Section 7 rights. Here, the NLRB stopped at the first step, reasoning only that the hat policy was undisputedly restrictive on its face and never considered the three factors for the second step. The Court of Appeals did not agree that the hat policy explicitly restricted union insignia on its face and held that the record certainly did not support that such a finding was “undisputed” by the parties.
The company had consistently argued that its hat policy said nothing on its face about adding union insignia—in the form of buttons, stickers, patches, etc.—to the hat. All the policy regulated was the type of hat the worker could wear. Furthermore, the company had consistently urged that their hat policy was a part of their broader uniform policy, which not only did not explicitly ban the addition of accessories, but explicitly allowed it. Because the NLRB failed to address these and stopped at the first step, the Court remanded the case to the NLRB for reconsideration.
Labor professionals can consider this a win for uniform policies, but a narrow one. This case is reassuring because the NLRB was not permitted to simply declare a company’s requirement that its workers wear its own branded apparel on the job as facially restrictive of Section 7 activity. The federal courts require more reasoning than that.
But an employer should not interpret the decision as a “green light” for any uniform policy. The court is not saying that a policy that requires wearing a company cap is always lawful. Labor professionals should stay tuned for the NLRB’s decision after remand—this will be far more instructive of how this NLRB will interpret and apply the two-step analysis for Section 7 violations to employer uniform policies going forward.
