The D.C. Circuit recently denied enforcement of an NLRB order that found that an employer unlawfully maintained a safety rule that prohibited employees at its printing facility from wearing baseball caps other than caps bearing the company logo. World Color (USA) Corp. v. NLRB, 202 LRRM 3208, 2015 BL 10681 (D.C. Cir. 2015). 

Finding that the employer disputed that this policy facially prohibits employees from wearing hats bearing union insignia, the court granted review and remanded the case to the board for reconsideration.

Employer’s Hat Rule and Union’s Challenge

The employer’s subsidiary, Quad/Graphics, operates a printing facility in Fernley, Nevada, where a safety rule addresses the possibility that hair hanging past the bottom of an employee’s collar “could potentially get caught in our equipment.”  The rule requires that hair be secured by a hairnet or by other means, and it prohibits baseball caps “except for Quad/Graphics baseball caps worn with the bill facing forward.”

The Teamsters’ Graphic Communications Conference filed an unfair-labor-practice charge alleging that the rule interferes with employees’ exercise of their rights under Section 7 of the NLRA.

Board’s Analysis

The board’s administrative law judge determined that the hat rule was distinct from the employer’s policy regarding employee uniforms, which states that “[a]ll uniform requirements will be applied in accordance with applicable law.”

Finding that the employer had not demonstrated “special circumstances” regarding the safety of press operators or its alleged concerns about gang activity at the facility, the ALJ recommended an order barring the employer from enforcing the “discriminatory” rule.

The employer filed exceptions with the board, which adopted the ALJ’s finding that the hat rule was distinct from the policy regarding uniforms.  Although the board declined to address whether the rule was “discriminatory,” it found that the rule violated Section 8(a)(1) of the NLRA because it was unlawfully overbroad.

The NLRB ordered the employer to rescind the rule, and the employer sought review.

Republic Aviation

Relying on its own case law, the board had reasoned that “An 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.”

On review of the board’s order, the D.C. Circuit initially observed that it is beyond dispute that Section 7 protects an employee’s right to wear union insignia at work in the absence of “special circumstances.”  Here, the court was averting to the U.S. Supreme Court’s 1945 decision in Republic Aviation v. NLRB, which upheld the board’s finding of interference based on the discharge of two employees for wearing union steward buttons during an organizing campaign at a manufacturing plant, notwithstanding the employer’s objections that permitting the buttons might impinge upon its strict neutrality policy.

D.C. Circuit’s Guardsmark Inquiry

Reading Republic Aviation narrowly, the court found that the board “short-circuited” the appropriate two-step inquiry to determine whether an employer rule violates Section 8(a)(1) of the NLRA under D.C. Circuit precedent.  Under this inquiry, described in Guardsmark, LLC v. NLRB, 475 F.3d 369, 181 LRRM 2289 (D.C. Cir. 2007), the board first examines whether an employer rule explicitly restricts protected Section 7 activity.  If so, the rule is unlawful.

If the rule does not explicitly restrict Section 7 activity, the board then considers whether “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.”

Noting that the employer consistently argued that the hat rule is part of its general policy regarding uniforms and that its policies thus facially allow employees to adorn their company hats with union insignia, the court concluded that the board erred in finding an explicit restriction.

Possibilities on Remand

What the D.C. Circuit did not address is whether a rule that facially allows employees to adorn their company hats with union insignia, at least on one reading, might nonetheless interfere with employees’ Section 7 rights.

On remand, the board will have an opportunity to take up the questions in the second part of the D.C. Circuit’s recommended inquiry or to further clarify its interpretation of Section 8(a)(1).

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