In two recent National Labor Relations Board (NLRB) decisions, employers that maintained restrictive dress code policies and/or disciplined employees for violating those policies committed an unfair labor practice under the National Labor Relations Act (NLRA). These decisions illustrate that although employers may impose appropriate dress, grooming and appearance polices for legitimate safety and business reasons, such policies should be clearly and narrowly drafted so as not to interfere with the Section 7 right of union and non-union employees to engage in protected concerted activity. They also suggest that an employer's policy should specifically notify employees that the employer is not interfering with the right to engage in protected communications.
In Quad Graphics, Inc., Case No. 32-CA-062242 (July 31, 2013), the employer implemented a work rule prohibiting employees from wearing baseball caps unless the company logo was displayed on the front. It asserted that the restriction was for safety reasons, to reduce gang activity and to facilitate employees' interactions with customers. The union challenged this work rule on the basis that it violated the Section 7 right of employees to engage in pro-union activity and protected concerted activity.
The NLRB sided with the union, holding that the employer's policy prevented employees from expressing pro-union sentiments. The administrative law judge (ALJ) noted that an employer may prohibit employees from wearing pro-union insignia only if it can prove that there are special circumstances outweighing the employees' rights. The ALJ determined not only that there were no special circumstances in this case, but also that there was no safety reason for the restriction since a baseball cap displaying a pro-union logo would secure employees' hair as well as one displaying the employer's logo. Moreover, there was no evidence of gang activity or that the employees interacted with the employer's customers.
Similarly, in Alma Products Co., Case Number 07-CA-089537 (August 14, 2013), the employer's dress code prohibited employees from wearing clothing with messages containing words or images that were derogatory to the employer. During contract negotiations, employee Mark Gluch, a union supporter, came to work wearing a shirt that said "slave" on the front and had a picture of a ball and chain on the back along with his time clock number. The shirts had been designed years earlier by pro-union supporters in connection with contract negotiations and the dress code was passed to prevent employees from wearing those specific shirts. The employer claimed that Gluch's shirt violated the employer's dress code and was racially offensive. Gluch was told to remove the shirt or wear it inside out. When Gluch refused, he was sent home without pay.
The union then filed an unfair labor practice charge alleging that the employer's dress code interfered with the Section 7 right of employees to engage in protected concerted activity. An ALJ for the NLRB agreed with the union's argument, holding that the employer's dress code policy was overly broad and prohibited employees from objecting to their working conditions and seeking the support and mutual aid of other employees in order to improve those conditions. The ALJ also ordered the employer to pay Gluch for any wages he lost when he was sent home without pay.