Free Speech on the Clock: Tesla/Troy Grove, Captive Audience Meetings, and GC Memo 22-04

A. The NLRB’s Current Captive Audience Standards.

The Board’s limits on captive audience speeches have traditionally been designed to both protect the employer’s right to exercise free speech during a union organizing campaign, while ensuring such communications are noncoercive. Under long-standing Board law, employers’ captive audience speeches are, on their face, generally lawful, unless the employer (a) maintains an unlawful work rule prohibiting union access to company property during nonworking time, or (b) maintains a broad solicitation and distribution policy that is only lawful due to the nature of the business, subject to certain limitations. Captive audience speeches may also constitute an unfair labor practice if, under the circumstances, the speech is coercive under section 7 of the Act.

For example, as noted in Livingston Shirt Corp., relying on Peerless Plywood Co., the Board prohibits employers from delivering captive audience speeches to massed groups of employees during the twenty-­four hours preceding an election. A sister rule likewise prohibits unions from making election speeches to massed groups of employees during the twenty-four hours preceding an election. Together, these rules “keep voters as free of uninvited mass messages as possible during the period just prior to the conduct of the election.”

Moreover, although employers are generally free to express views regarding unionization in general or a labor union more specifically, employers may not, during captive audience meetings, make threats of reprisal, make promises of a benefit, or otherwise interfere with employees’ section 7 rights. The standard applied in such cases is an objective one: if a reasonable employee would, under a totality of the circumstances, perceive the employer’s speech as an unlawful threat or promise, the employer’s captive audience speech may constitute an unfair labor practice. If, for example, an employer makes a direct statement during a captive audience meeting that it will not bargain with a union, that statement may constitute an unlawful threat that unionization will be futile. Captive audience meetings also may be seen as coercive if they are held in a “locus of authority” such as a supervisor’s office. And, if the employer engages in polling to determine the strength of the union contemporaneously with captive audience meetings, that conduct may constitute unlawful interference. In other words, under current Board law, employer campaign speeches will not be considered, on their face, unlawful under the NLRA; but, if coercive under the circumstances, that speech loses its constitutional and statutory protections.

B. Clark Bros. Co. and the Board’s Historical Prohibition Against Captive Audience Meetings.

The Board has not always permitted captive audience meetings. The Board in Clark Bros. Co. found that captive audience meetings are per se unlawful under the NLRA. In Clark Bros. Co., the employer assembled its employees and addressed them with speeches regarding ongoing representation election proceedings on two occasions. The speeches were held during working hours and broadcast throughout the plant, all plant operations were suspended during that time, and employees were directed by supervisors to assemble and listen to the speeches. Employees were not permitted to leave the premises during working time, and therefore were not permitted to leave the premises during the employer’s speeches. The employer made no unlawful threats or promises to employees during the speeches. To the contrary, as the Second Circuit later observed, those speeches were generally “unexceptionable” and included “assurances in speeches and statements that the employees could vote as they pleased without fear of retaliation.” Nevertheless, the Board concluded that the captive audience meetings in question “independently constitute[d] interference, restraint, and coercion within the meaning of the Act.”

The Board majority in Clark Bros. Co. reasoned that section 7 of the Act guarantees to employees the “right to self-organization, to form, join, or assist labor organizations,” which the Board recognized “include[s] the full freedom to receive aid, advice, and information from others, concerning those rights.” The Board concluded that captive audience meetings interfere with that right, because they deny employees the “full freedom” to “determine whether or not to receive . . . aid, advice, and information” concerning their rights under the Act and to determine from whom they receive such information. In response to the dissent’s First Amendment-related concerns, the Clark Bros. Co. majority reasoned that an employer’s “speech itself may be privileged under the Constitution,” but that the First Amendment does not permit an employer to use its “superior economic power” to compel employees to listen. Thus, the employer in Clark Bros. Co. “exercised its superior economic power in coercing its employees to listen to speeches relating to their organizational activities, and thereby independently violated Section 8(1) of the Act.”

The NLRB’s Clark Bros. precedent was short-lived. On July 29, 1947, the Circuit Court of Appeals for the Second Circuit issued an opinion granting enforcement of the Board’s order in Clark Bros. Co. on other grounds. The Second Circuit declined to hold that captive audience meetings are per se unlawful under the Act and instead upheld the NLRB’s order based on finding the speeches at issue were in fact coercive in the context of the employer’s other “aggressive” campaign activities. The Second Circuit reasoned:

It is now authoritatively settled that the constitutional guarantee of free speech entitles an employer to express his views on labor policies and to “take sides” on issues involved in employee efforts to organize for collective bargaining, providing his conduct as a whole, including his utterances, . . . is not coercive. . . . The Board argues that one of the rights guaranteed employees by section 7, 29 U.S.C.A. § 157, is the right to be free to determine whether or not to receive aid, advice and information concerning their self-organization for collective bargaining, and that this right is violated whenever the employer utilizes his power to compel them to assemble and listen to speeches relative to matters of organization. But the present case does not call for laying down so broad a rule. An employer has an interest in presenting his views on labor relations to his employees. We should hesitate to hold that he may not do this on company time and pay, provided a similar opportunity to address them were accorded representatives of the union.

That same year, Congress amended the NLRA to add section 8(c) of the Act with the passage of the Taft-Hartley Act. With the Taft-Hartley amendments, Congress responded to concerns that, in addition to the rights of workers protected by section 7 of the Act, some union conduct required correction and employer’s First Amendment rights required codified protection. The Taft-Hartley Act preserved section 7 of the Act, added provisions protecting employees from restraint or coercion by labor unions, and, as discussed above, incorporated employer free-speech protections. The legislative history of section 8(c) expressly identified Clark Bros. Co. as an impetus for the amendment:

The Board has placed a limited construction upon these decisions by holding such speeches by employers to be coercive . . . if the speech was made in the plant on working time (Clark Brothers, 70 N.L.R.B. 60). The committee believes these decisions to be too restrictive and, in this section, provides that if, under all the circumstances, there is neither an express or implied threat of reprisal, force, or offer of benefit, the Board shall not predicate any finding of unfair labor practice upon the statements.

After section 8(c) took effect, the Board overruled Clark Bros. Co. in Babcock & Wilcox, holding that, under the Act, employers have the right to express views, opinions, and facts during a union organizing campaign. The Supreme Court has tacitly accepted this rationale. And, for over seventy years, Babcock & Wilcox has remained undisturbed.

C. GC Memo 22-04 and Efforts to Limit Captive Audience and Other Mandatory Meetings

That is, until recently. On July 1, 2022, Connecticut enacted Public Act No. 22-24, which prohibits employers from penalizing employees for not attending or participating in meetings held by the employer concerning its views on political or religious matters, including unionization. With Public Act No. 22-24, Connecticut was the second state to enact a captive audience meeting prohibition, following Oregon, which enacted substantially similar legislation in 2010. In 2023 and 2024, several states, including Hawaii, Illinois, Maine, Minnesota, New York, Vermont, and Washington, have followed suit.

These laws have faced multiple legal challenges. For example, the Connecticut and Oregon laws have been the subjects of lawsuits filed by the United States Chamber of Commerce and the NLRB respectively. The United States District Court for the District of Oregon dismissed NLRB v. Oregon in 2021, holding that the NLRB failed to allege injury in fact and thus lacked standing. In 2022, the United States Chamber of Congress and several industry associations challenged Connecticut’s captive audience ban based on federal preemption, as well as on the basis that the law violates the First Amendment’s free-speech guarantee; the lawsuit remains pending.

At the federal level, the House of Representatives has passed the Protecting the Right to Organize Act (PRO Act) several times since 2020, which would, among other things, make captive audience meetings an unfair labor practice. During his 2024 State of the Union, President Biden again called on Congress to pass the PRO Act. Although the Republican-controlled House of Representatives is unlikely to pass the PRO Act as written—and it is equally unlikely to survive a Senate filibuster—the White House will likely continue to seek to achieve the PRO Act’s policy objectives through regulatory action, particularly if Democrats retain control of the White House after the November 2024 election.

Indeed, on April 7, 2022, NLRB GC Abruzzo released General Counsel Memorandum 22-04 (GC Memo 22-04), which stated that, in upcoming cases, GC Abruzzo will request the Board overturn precedent that generally allows for mandatory captive audience meetings and reestablish the rule set forth in Clark Bros. Co. In GC Memo 22-04, GC Abruzzo argues that the Act protects employees’ “right not to listen” to captive audience speeches, and that captive audience meetings “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise” that right, particularly given the “inequality in bargaining power” between employees and employers “as well as employees’ economic dependence on their employers.” She stated that “[f]orcing employees to listen to such employer speech under the threat of discipline chills employees’ protected right to refrain from listening to this speech in violation of Section 8(a)(1).” GC Memo 22-04 states that GC Abruzzo will urge the Board to:

• Hold that mandatory captive audience meetings are prohibited under the NLRA, overrule Babcock & Wilcox, and return to the rule in Clark Bros. Co.
• Hold that an audience is captive in two circumstances: “when employees are (1) forced to convene on paid time or (2) cornered by management while performing their job duties.”
• Adopt “sensible assurances that an employer must convey to employees in order to make clear that their attendance is truly voluntary,” if they are convened on paid time, or are cornered by management.

GC Abruzzo has, since issuing GC Memo 22-04, advanced these arguments before the Board. In Cemex Construction Materials Pacific, LLC, GC Abruzzo argued that the Board should prohibit captive audience meetings and find that such meetings are unlawful (1) when employees are forced to convene on paid time, and (2) when employees are “cornered” by management when trying to perform job duties. More specifically, GC Abruzzo argued:

If an employer convenes employees for a Section 7 meeting on paid time, it must satisfy the following requirements to make the meeting voluntary. First, the employer must explain the purpose of the meeting. Second, the employer must assure employees: (a) that attendance is voluntary, (b) that if they attend, they will be free to leave at any time, (c) that nonattendance will not result in reprisals (including loss of pay if the meeting occurs during their regularly scheduled working hours), and (d) that attendance will not result in rewards or benefits.

And,

If an employer corners employees to address them concerning their exercise of Section 7 rights, it must satisfy the following requirements to ensure that the meeting is voluntary. First, the employer must explain the purpose of the encounter. Second, the employer must assure employees: (a) that participation is voluntary, (b) that nonparticipation will not result in reprisals (including loss of pay), . . . (c) that participation will not result in rewards or benefits, [and the employer should also] seek affirmative consent to talk to the employees.

The Board has not yet ruled on the theory advanced in GC Memo 22-04, as the Cemex Board declined the General Counsel’s request to address the issue in the case before it. The General Counsel has, however, advanced the theory in other pending cases, giving the Board the opportunity to revisit the issue. Additionally, if the Board does hold that captive audience meetings are prohibited by the NLRA, it is not yet clear how the Board would define the scope of such a rule, particularly given the limited precedent applying Clark Bros. Co. on which the Board could rely. Here, two critical issues exist in defining the scope of such a prohibition: (1) how the Board defines the scope of what speech constitutes a “captive audience” meeting; and (2) how the Board defines what conditions must be met to consider attendance at such speech “voluntary.”

First, at this stage, it is unclear how the Board would define “captive audience” meetings. The quintessential “mandatory meetings” in which employees are required to gather en masse “to listen to employer speech concerning the exercise of their statutory labor rights, especially during organizing campaigns” contemplated by GC Memo 22-04 would likely be included. But GC Memo 22-04 takes the position that a broader prohibition is appropriate, including communications where an employee is “cornered” by management. The Board could conceivably follow suit and define captive audience meetings to include communications where (a) a supervisor approaches an employee with an answer to a question regarding unionization during working time; (b) a supervisor responds to an employer question about the union but fails to preface the answer with an explanation that the conversation is optional; and/or (c) an employer requires covered employees attend an otherwise lawful labor-management relations training, safety training, or other job training that includes statements that could reasonably be interpreted as dissuading organization, among other communications.

Second, the Board could take several possible approaches to determine whether listening to employer speech was required or whether it was voluntary. In GC Memo 22-04, GC Abruzzo states that she considers employer speeches required when (a) they are made while the employee is performing job duties or (b) employees are convened during paid time. The Board may also rely on post-Clark Bros. Co. cases applying the NLRB’s 1946 captive audience prohibition, which focused the Board’s inquiry on whether employers were “ordered” or were “required” to attend management-led meetings. Alternatively, the Board could mirror Supreme Court precedent regarding the degree of “captivity” of an audience, which has long been considered a critical factor in determining the proper scope of First Amendment protections of other types of protected speech. The Board could also require some other safeguards to ensure captive audience meetings are voluntary, such as requiring pre-meeting warnings about the purpose of the meeting, assuring that attendance is voluntary, and assuring no reprisals based on attendance, akin to statements mandated by the Board for employee interviews in Johnnie’s Poultry.

If the Board does adopt a version of the rule advocated for in GC Memo 22-04, it is also unclear whether federal courts will uphold such a decision. Legal challenges are already mounting. For instance, in 2022, a group of staffing firms filed a lawsuit seeking to set aside the guidance as unconstitutional and to block GC Abruzzo from enforcing the guidance through litigation. As noted above, although the Second Circuit granted enforcement of the Board’s decision in Clark Bros. Co., it questioned the constitutional basis for the Board’s “compelled listening” theory and expressly found that “[a]n employer has an interest in presenting his views on labor relations to his employees.” In its ­analysis, the Second Circuit relied on Supreme Court precedent, including Virginia Electric & Power Co., where the Supreme Court has held that employers have a constitutionally protected right to make speeches and postings, and, as long as those actions were not coercive, the Act does not “enjoin[] the employer from expressing its view on labor policies or problems.” The Second Circuit further questioned the NLRB’s conclusion that there is anything inherently coercive regarding an employer’s captive audience speech. A court reviewing the captive audience speech prohibition requested by GC Abruzzo may likewise find such a prohibition difficult to square with the First Amendment, as “an employer’s free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the Board.”

This, however, is not 1947. Since the Second Circuit’s 1947 opinion in Clark Bros. Co., the “captive audience” doctrine under First Amendment jurisprudence has evolved to provide some limited protections to those who otherwise would be “unavoidably and unfairly coerced into listening.” The “captive audience” doctrine, at its most basic, argues as follows: the First Amendment’s protection of freedom of speech and association has traditionally protected (1) the speaker’s right to speak, (2) the speaker’s right against compelled speech, and (3) the listener’s right to listen; those protections are incomplete without also protecting the listener’s right against “compelled listening.”

Figure 1: First Amendment Free Speech Rights

Some case law now supports the captive audience doctrine in other political speech-related contexts. In particular, some courts have recognized that a listener’s interests in avoiding speech may outweigh the speaker’s right to expression in some circumstances, such as where a woman’s privacy interests and historical right to choose abortion outweighs the speech interests of protesters attempting to dissuade women entering a medical facility from seeking an abortion. Still, “a ‘right’ to avoid unwelcome expression” under the First Amendment has not been recognized by the Supreme Court, and it is even less clear that the federal courts would find that Congress intended to incorporate any such right to the NLRA. Accordingly, it is not apparent whether the federal courts will ultimately endorse GC Abruzzo’s proposition that the First Amendment, and therefore the NLRA, protects against compelled listening and prohibits mandatory captive audience meetings.

Other cases to watch on this issue include Amazon.com Services, Inc. and Starbucks Corp. In Amazon.com Services, Inc., an administrative law judge (ALJ) recently held that Amazon illegally threatened to withhold wage increases and benefits from unionizing workers, but did not purport to overturn Board precedent with respect to captive audience meetings. This case is now pending before the Board, which will have another opportunity to consider captive audience meetings. In Starbucks, Corp., an ALJ recently ruled for a union on several matters, but did not overturn precedent permitting captive audience meetings. The appeal to the Board is pending.

II. Tesla and the Right to Wear Union Insignia

Captive audience speeches are just one area implicating speech rights. The ability to wear union insignia is another. The Board has long recognized “the importance of freedom of communication to the free exercise of organization rights.” It is axiomatic that “employees cannot realize the benefits of the right to self-organization guaranteed them by the Act, unless there are adequate avenues of communication open to them whereby they may be informed or advised as to the precise nature of their rights under the Act and of the advantages of self-organization.”

Accordingly, the right to wear union insignia is a “critical form of protected communications.” By displaying union insignia, workers can express their support for the union, advocate for improved working conditions, demonstrate solidarity, and encourage participation in an organizing campaign. In recognizing the central importance of the right to wear union insignia, the Board has consistently held that employer restrictions on employees’ ability to wear union insignia on the job were presumptively unlawful unless the employer could establish “special circumstances” to justify its action.

The Board’s long-standing approach to analyzing union insignia cases stems from the Supreme Court’s decision in Republic Aviation Corp. In that case, the Court held that the employer violated the Act by discharging three employees who refused to remove their union steward buttons. At the time, employees were in the process of organizing a union, but had not yet achieved formal recognition. The employer claimed that “the wearing of the steward buttons in the plant indicated an acknowledgment by the management of the authority of the stewards . . . and might impinge upon the employer’s policy of strict neutrality in union matters.” It further maintained that its prohibition on union steward buttons did not violate the Act because it permitted employees to wear other union insignia. The Court rejected these arguments, holding that “the right of employees to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity, and the [employer’s] curtailment of that right is clearly violative of the Act.”

The Republic Aviation Court acknowledged that the right of employees to wear union insignia is not “unlimited.” Instead, it held that “undisputed right of self-organization assured to employees” must be balanced with “the equally undisputed right of employers to maintain discipline in their establishments.” Therefore, the Court found that “rules against . . . the wearing of union insignia must fall” unless “special circumstances make the rule necessary in order to maintain production or discipline.”

A. The “Special Circumstances” Test

The special circumstances exception announced in Republic Aviation became well-established through decades of Board litigation. Generally, the Board has instructed that the special circumstances exception be construed narrowly. An employer bears the burden of establishing special circumstances through “substantial evidence in the record.” “General, speculative, isolated or conclusory evidence of potential disruption to an employer’s operations does not amount to ‘special circumstances.’” Finally, even where a rule restricting the display of union insignia is based on special circumstances, that rule must be narrowly tailored to address those circumstances.

Under this standard, employers have successfully argued that special circumstances justify the curtailment of employees’ rights to wear union insignia in a myriad of situations. First, the Board has upheld employer restrictions on wearing union insignia when its display could jeopardize employee safety. Second, the Board has found special circumstances permit prohibitions on union insignia proven to cause damage to products. Third, the Board has permitted employer limitations on union insignia “when necessary to maintain decorum and discipline among employees.” Last, the Board has found special circumstances may warrant the limitations on certain union insignia that “unreasonably interferes with a public image that the employer has established.” However, “[t]he Board has consistently held that customer exposure to union insignia, standing alone, is not a special circumstance which permits an employer to prohibit display of such insignia.”

B. Neutral Uniform Policies and Stabilus

The Board has applied the special circumstances test in cases finding that an employer’s neutral uniform policy unlawfully limited the wearing of union insignia. For example, in Great Plains Coca-Cola, the Board held that the employer violated the Act when, absent special circumstances, a supervisor told an employee that “the ‘union’ jacket he was wearing was unacceptable” and “that only Coca Cola jackets were allowed.” It has similarly applied the special circumstances test to find that employers unlawfully applied a neutral uniform policy to restrict employees from wearing union insignia. In Noah’s New York Bagels, for example, the Board adopted the administrative law judge’s finding that the employer “lawfully enforced [its] policy requiring the wearing of company T-shirts” to prohibit an employee from wearing a union shirt while on duty because it established special circumstances justifying the enforcement. In Stabilus, the employer had a uniform policy requiring employees to wear shirts with the company logo. Invoking this policy, the employer told several employees that they could not wear union shirts on multiple occasions leading up to and during a union election. The judge found that the employer’s uniform policy was unlawful because it was not justified by special ­circumstances. The employer filed exceptions, arguing that “nondiscriminatory enforcement of a uniform policy does not violate the Act.”

The Board concluded that it need not reach the issue of whether the employer established special circumstances justifying its uniform policy. It found that, even if special circumstances justified the policy, the employer acted unlawfully because it “enforced its policy in a selective and overbroad manner against union supporters” and “applied [it] in a disparate manner to Section 7 activity relative to comparable non-Section 7 activity.” However, the Board affirmed the judge’s reasoning that “[a]n employer cannot avoid the ‘special circumstances’ test simply by requiring its employees to wear uniforms or other designated clothing, thereby precluding the wearing of clothing bearing union insignia.”

Former Member Schaumber disagreed with the majority, arguing that “where, as here, an employer maintains and consistently enforces a lawful uniform rule, Section 7 does not guarantee employees the right to wear union attire in place of the required company uniform.” Schaumber asserted that, contrary to the majority’s view, the Board had “implicitly recognized that an employer may promulgate and enforce a nondiscriminatory uniform rule.” He further maintained that an employer does not interfere with employees’ section 7 rights where a uniform policy prohibits some, but not all, union insignia. Last, he claimed that “[i]f employees have the right to wear union attire instead of a company uniform, the employer’s right to promulgate and enforce reasonable, nondiscriminatory apparel rules is negated entirely.”

C. Walmart and the Application of Boeing to Neutral Uniform Policies

In a departure from the precedent outlined above, the Board revisited the special circumstances test in Walmart Stores, Inc. In Walmart, the employer maintained a uniform policy that only allowed employees to wear “small, non-distracting” logos no larger than employee name badges. Under that standard, the employer prohibited employees from wearing 3.5-inch diameter union buttons.

Instead of evaluating whether special circumstances justified the employer’s actions, the Board argued that a “different analysis is required” in situations where a facially neutral rule is applied to restrict some but not all union insignia. In such situations, the Board asserted, “because the infringement on Section 7 rights is less severe, the employer’s legitimate justifications for maintaining the restriction do not need to be as compelling for its policy to pass legal muster.” Specifically, the Board held that instead of the special circumstances test, the standard set forth in Boeing should apply. Under Boeing, the Board would first consider the nature and extent of a rule’s impact on employee rights before determining whether that impact is outweighed by the employer’s “legitimate justifications.”

Applying the Boeing standard, the Board found that the employer lawfully prohibited customer-facing employees from wearing the 3.5-inch diameter buttons. First, the Board found the employer’s interference with section 7 rights to be “relatively minor,” noting that employees “are free to wear any union message they want” as long as they are displayed in a “small, non-distracting” manner. Second, the Board held that the employer’s restriction on union insignia was supported by “legitimate justifications”—namely that the uniform’s “small and non-distracting” limitations ensured employees had “an unobstructed name badge” thereby providing customers with a “satisfactory shopping experience” and “protecting . . . merchandise from theft and vandalism.”

These purported justifications, the Board held, outweighed the restrictions on employee section 7 activity with respect to employees on the selling floor. However, the restrictions were not found to be lawful with respect to employees in areas away from the selling floor where the employer’s “justifications . . . are much weaker.”

Chairman McFerran dissented, finding that the majority’s decision “tips the balance in favor of employer interests” by making it “presumptively permitted to restrict the wearing of union insignia . . . based on any ‘legitimate justification.’” This approach, McFerran argued, “subverts one of the central rights und the Act while introducing unnecessary uncertainty into a long-settled area of the law.”

D. Tesla Returns to the Special Circumstances Test

The Board’s decision in Walmart was short-lived. In Tesla, the employer maintained a uniform policy requiring production associates to wear black cotton shirts with the employer’s logo and black cotton pants. Production leads and supervisors wore red shirts. Pursuant to this policy, supervisors told several employees that they could not wear black cotton shirts with union insignia. The employer argued that its application of the uniform policy was necessary to “aid in the ‘visual management’” of production associates and “to lower the risk of employees’ clothing causing mutilations to the vehicles.” The employer asserted that its application of the uniform policy was lawful because the policy was neutral, consistently applied, and only banned some, but not all, union insignia.

The ALJ rejected the employer’s arguments, finding that “[s]imply because the [employer’s] rule does not prohibit the wearing of union insignia does not mean that if the rule is enforced equally, the rule is permitted; the rule still disallows employees to wear union insignia on their clothing . . . .” The ALJ then found that the employer failed to establish special circumstances justifying a ban on union shirts because (1) the black union shirts were not substantially different from the black company shirts such that management would have difficulty identifying production associates, and (2) there was simply no evidence to suggest that the black union shirts caused any damage to the employer’s product. The employer filed exceptions arguing that “the special circumstances test should not apply because its production associates freely and openly display union insignia and are merely prohibited from substituting union shirts for the required team wear.”

On February 12, 2021, the Board issued a notice and invitation to file briefs, asking the parties and interested amici to address whether Stabilus specified the correct standard to be applied when evaluating the lawfulness of nondiscriminatory policies that “restrict the display of union insignia by requiring employees to wear uniforms or other designated clothing, implicitly prohibiting employees from substituting union attire for the required uniform or clothing.” On August 29, 2022, the Board issued a decision in Tesla adopting the ALJ’s finding that the employer violated section 8(a)(1) of the Act when it applied its uniform policy to prohibit employees from wearing union shirts.

Specifically, the Board overruled Walmart and “reaffirm[ed] that under Republic Aviation and its progeny, when an employer interferes in any way with its employees’ right to display union insignia, the employer must prove special circumstances that justify its interference.” In other words, the Board returned to a “presumption that any employer limitation on the display of union insignia is invalid, with the burden on the employer to establish special circumstances to justify its action.”

Members Kaplan and Ring dissented, arguing that the Boeing standard and not the special circumstances approach should apply “to facially neutral, nondiscriminatory employer dress codes that . . . provide a meaningful opportunity to display union insignia.” Echoing the dissent in Stabilus, Members Kaplan and Ring stressed that the majority’s holding “effectively nullifies the legitimate interests served by employer dress codes.”

In response, the Tesla majority first rejected the dissent’s “meaningful opportunity” argument, finding that “an employer is not free to restrict one statutorily protected means of communication among employees, so long as some alternative means remains unrestricted.” It opined: “‘It certainly does not lie in the mouth of [the employer] to tell the [u]nion, or the [employer’s] employees, how to exercise their rights under the Act.” Furthermore, the majority noted both the Board and “the Supreme Court ha[ve] reaffirmed the principle that the availability of alternative means of communication is irrelevant in determining whether an employer has unlawfully interfered with the exercise of employees’ Section 7 rights.” “To hold otherwise would effectively treat the display of union insignia as a privilege to be granted by the employer on the terms it chooses rather than an essential Section 7 right that the employer is required to accommodate.”

Second, the Tesla majority found meritless the dissent’s claim that a neutral uniform policy that does not completely prohibit all union insignia is lawful so long as it is consistently enforced. The Board reasoned that “under the Act, it is axiomatic that if employees have a Section 7 right to engage in certain protected activity, an employer is not free to prohibit that activity simply because it prohibits similar activities by employees, including activities that are not statutorily protected.” By way of example, the Board reasoned “an employer’s uniform policy or dress code that effectively prohibits employees from wearing all clothing other than the clothing prescribed by the employer (including, but not limited to union clothing) does not make the employer’s action lawful, any more than an employer’s no-solicitation rule is lawful because it bars all solicitation (not just union solicitation) on nonworking time.”

Finally, contrary to the dissent’s claim that the special circumstances test “places a nearly insurmountable burden on employers,” the Board noted its many decisions finding that special circumstances justified an employer’s restrictions on union insignia. It further argued that “as the party asserting that employees’ Section 7 rights must be restricted to achieve a legitimate business objective, [the employer] ‘logically is in the best position to offer evidence on the point.’”

Although significant, the Board’s decision in Tesla is unlikely to have the vast repercussions predicted by the dissent. The Stabilus dissent’s similar concerns that the special circumstances test “would completely submerge the employer’s rights” never seemed to occur in the nearly ten years following that decision. Employers have and will continue to maintain dress codes and uniform policies, though, as has been the case since Republic Aviation, they must justify the use of such policies to prohibit union insignia by establishing special circumstances that warrant such a restriction on statutory rights.

Tesla appealed the Board’s decision to the Fifth Circuit Court of Appeals, which declined to enforce the Board order. The Fifth Circuit held that Tesla’s ban on employees wearing union shirts was not violative of the Act and that the Board applied an inappropriate legal standard that failed to properly balance the rights of employers and workers. Contrary to the NLRB, the Fifth Circuit found that Tesla advanced legitimate employer interests in mandating standards for employee dress and that its policy did not discriminate against union messaging. Notwithstanding the Fifth Circuit’s view, the Board will likely continue to uphold Tesla as controlling precedent under policy of “nonacquiescence.”

III. Troy Grove Affirms Weingarten Rights for Strike Replacements

Shortly after issuing its decision in Tesla, the Board released another notable decision affecting employee rights in Troy Grove. In Troy Grove, the collective bargaining agreement between the union and employer had expired in 2016, and efforts to negotiate a successor agreement failed. In 2018, the employees went on strike, and the employer hired employees to permanently replace the strikers. In August 2019, one of the permanent replacements was called to a meeting with management to discuss performance issues. At the meeting, the employee requested a union steward. His request was denied. The employee was subsequently suspended and later discharged. The ALJ held that the employer violated section 8(a)(1) by proceeding with an investigatory interview after denying the employee his right to union representation.

The employer filed exceptions arguing that the employee did not have Weingarten rights because he was a strike replacement. Specifically, it claimed that (1) strike replacements lack Weingarten rights because the employer can unilaterally set their terms and conditions of employment, and (2) permanent replacements do not have Weingarten rights because unions do not represent the interests of permanent replacements. The Board disagreed, instead holding that permanent strike replacements are entitled to Weingarten protections.

In reaching this conclusion, the Board first recognized that “[i]t is well established that a bargaining unit includes ‘nonstrikers, strikers, returning strikers, and striker replacements.’” Although the employer correctly pointed out that it may unilaterally set the terms and conditions of employment for permanent replacements, the Board held that the lack of bargaining obligation has no bearing on whether an employee is entitled to Weingarten representation. Rather than a term or condition of work determined by the employer, the Board noted, the Weingarten right is held by an employee, “grounded in Section 7 and 8(a)(1)[,] and seeks to ensure that employers carrying out investigations do not restrain or coerce employees in the exercise of their Section 7 rights.” Accordingly, Chairman McFerran, Member Ring, and Member Wilcox unanimously agreed that permanent strike replacements are entitled to Weingarten rights under the Act.

Conclusion

These recent decisions and guidance are indicative of the Board’s interests in permitting and protecting employee and employer communications central to sections 7 and 8 of the Act. In some cases, the Board’s approach has been to return to older precedent; in others, the Board’s approach has been to depart from existing Board standards and develop new standards. With respect to captive audience meetings, the approach that the Board will ultimately take is not yet apparent. Nevertheless, the takeaway is clear: each of these adjustments directly implicates the Act’s protections for freedom of speech and association in the workplace, and striking the right balance is critical to the Board’s mandate of safeguarding industrial self-determination as well as workplace democracy.