Fifth Circuit Court of Appeals Knocks One of the Biden NLRB’s First Pro- Labor Rule Changes - American Society of Employers - Michael Burns

Fifth Circuit Court of Appeals Knocks One of the Biden NLRB’s First Pro- Labor Rule Changes

What the National Labor Relations Board seeks to give unions, the Courts taketh away. Since the beginning of the Biden era, the NLRB has issued ruling after ruling challenging employers’ policies as anti-union. Many policies that have been acceptable for years are now being cast as anti-union and in turn, an unfair labor practice.

One of the first policies the Biden NLRB challenged was a Tesla company policy prohibiting the wearing of union T-shirts during work. Back in 2022, the NLRB held that Tesla’s dress code policy was found to be an unfair labor practice, and the NLRB told Tesla (a non-union company) to stop enforcing that policy against workers seeking to organize their Tesla plant. The NLRB said specifically that “wearing union insignia, whether a button or T-shirt is a critical form of protected communication.” This new decision was one of the first the Biden NLRB handed down to challenge long standing employer rights.

On November 14th the Fifth Circuit Court of Appeals (Louisiana, Texas & Mississippi) held that the NLRB failed to balance the employer’s legitimate interests in having the policy and said the NLRB was elevating “employee interests at the expense of legitimate employer interests.” The Fifth Circuit based its decision on a 1945 U.S. Supreme Court case called Republic Aviation.

That old decision held that employers are in violation of the National Labor Relations Act (NLRA) if they block workers from soliciting their fellow workers to support a union during non-working time absent “evidence that special circumstances make the rule necessary to maintain production or discipline.” Tesla argued their uniform or dress code policy was there to protect the product and brand. Tesla did not prohibit their employees from displaying any union supporting tags and allowed them to wear stickers during work time.  The Fifth Circuit court held that the Tesla dress code policy did not prohibit all union insignia so the rule did not violate the Republic Aviation ruling.

The Fifth Circuit’s decision also used a 1958 Supreme Court ruling (United Steelworkers v. NLRB) the balancing of interests test and citing that the “NLRA does not entitle unions to every possible means of reaching the minds of individual workers nor to use a medium of communications simply because the employer is using it.”

Unfortunately, as our source article states, the Fifth Circuit’s decision “does not nullify the rule, at least outside of the Fifth Circuit: This is because the Board does not acquiesce to rulings by courts below the U.S Supreme Court.” This is what it takes to get a federal agency to follow the law.

Let’s hope the U.S. Supreme Court will knock down the powers of the NLRB and other federal agencies that engage in over-reaching regulatory control. They need to recognize they are not ersatz legislative bodies.  

For now, that is more what this ruling stands for (outside of the Fifth Circuit for now). It stands for the position that the NLRB is exceeding its authority under the NLRA by trying force employers to change their policies toward positions that the pro-labor agency wants and benefits from rather than what the law actually allows.

ASE will continue to monitor and advise our members on their rights to manage their own organizations within the law despite what politicized federal agencies may be pressing them to do.


Sources: Law 360 Employment Authority 5th Circuit Faults NLRB’s Tesla Rule on Union Apparel Bans. (11/14/2023); Tech. Court Rules Tesla Employees Can’t Wear Pro-Union Shirts to Work (11/15/2023)

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