Hunton Employment & Labor Perspectives

As we previously reported here, the National Labor Relations Board (the “Board”) upended years of settled law in Tesla, Inc., 370 NLRB No. 131 (2022), when it held that employers cannot restrict employees from displaying union insignia (e.g., buttons, clothing, pins, and stickers) on their clothing at work, absent a showing of “special circumstances”—a nearly impossible standard for employers to meet.

Earlier this week, the National Labor Relations Board (“Board” or “NLRB”) decided that employers cannot restrict employees from displaying union insignia (e.g., buttons, clothing, pins, and stickers) absent a showing of “special circumstances” in Tesla, Inc., 370 NLRB No. 131 (2022).  In connection with this ruling, the Board overruled Wal-Mart Stores, Inc., 368 NLRB No. 146 (2019), which analyzed the lawfulness of facially neutral work rules that regulated the size and appearance of such union insignia under a less exacting standard.  Employers with policies that address employee appearance, such as dress code or uniform policies, should review those policies for compliance purposes in light of Tesla.

Workers at the Volkswagen AG plant in Chattanooga, Tennessee voted against union representation by the United Auto Workers. The highly anticipated 3-day secret-ballot election, supervised by the National Labor Relations Board, resulted in a 712 to 626 loss for the UAW. This particular election was significant in that a result for representation would have given unions a strategic entry point into the Southern labor market, which has long been resistant to unionization efforts. Additionally, a result for representation would have allowed for the first ever implementation of a German “works council” model for a United States employer. Under German law, a “works council” is a group of elected white-collar and blue-collar council members, separate from a union, that meets with management to discuss a wide variety of working condition issues. This model at the Volkswagen plant may have permitted the experimentation of a more collaborative system between management and workforce, as compared to the fundamentally adversarial relationship between management and traditional labor unions.