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Workplace Dress Codes – Auto Dealer Can’t Bar Workers from Wearing Message Pins, First Circuit Court Affirms NLRB

A divided panel of the U.S. Court of Appeals for the First Circuit has upheld a National Labor Relations Board decision that a Massachusetts automobile dealer’s policy banning the wearing of “message pins” violated union insignia protections under the National Labor Relations Act. Boch Imports, Inc., d/b/a Boch Honda v. NLRB, Nos. 15-1653, 15-1721 (1st Cir. June 17, 2016).

Based on an unfair labor practice charge filed by a union representing some Boch Honda employees, the NLRB’s regional office in Boston issued an unfair labor practice Complaint against Boch Honda, contending the dress code and personal hygiene provision in Boch’s employee handbook, which banned employees who had contact with the public from wearing pins, insignias and other message clothing, was unlawful.  An NLRB Administrative Law Judge found the provision violated the NLRA with respect to insignias and other message clothing, but held that the ban on pins was lawful because of Boch’s interests in promoting workplace safety and preventing damage to vehicles.

Boch Honda appealed the unfair labor practices finding to the Board.  The NLRB’s General Counsel also appealed, excepting to the Judge’s refusal to find the ban on pins unlawful. Upholding its ALJ generally, the Board,  however, disagreed with the ALJ’s failure to find a violation in the ban on pins, because the ban was not narrowly tailored to address workplace safety and prevention of damage to customers’ vehicles.

Boch Honda sought review of the NLRB’s decision in the First Circuit, contending the NLRB ignored Boch Honda’s substantial interest in protecting its public image, which justified its insignia and message clothing bans. It also contended the pin ban was justified by safety concerns.

The Court denied Boch Honda’s appeal and granted the NLRB’s petition for enforcement, concluding the ban on pins violated employees’ right to wear union insignia during work hours.  The Court noted the NLRB can require employers to demonstrate “special circumstances” to justify a ban on employees wearing union insignia. The Court explained that special circumstances exist, for example, when the wearing of  “union attire” could jeopardize employee safety, damage machinery or products, or unreasonably interfere with a public image that the employer has established. The Court also explained that the limitations must be tailored to the particular special circumstances advanced by the employer.

The Court held that Boch Honda had not met the special circumstances standard because it had “simply failed to explain why . . . non-uniformed employees’ wearing a small and unobtrusive union pin (for example) would unreasonably interfere with the general professional environment Boch sought to create.”  The Court also rejected Boch Honda’s argument that its interests in promoting workplace safety and preventing damage to vehicles justified its blanket ban on pins because it was not sufficiently narrowly tailored. Although the Court agreed that an employee’s pin could fall into an engine while the employee was working under the hood of a car or damage the car’s paint or leather, the ban on pins was not narrowly tailored to protect against those situations.

Dissenting only as to majority’s decision on the pin ban, Judge Norman Stahl disagreed that the NLRA automatically grants employees a presumptive right to wear union paraphernalia at work, and noted the NLRB’s decisions on worker attire make it difficult for companies to design or enforce lawful dress code policies.  Judge Stahl noted that by “rubber-stamping” the NLRB’s “arbitrary infatuation” with workplace dress codes, the Court was granting the NLRB the authority to play “fashion police.”

An unfair labor practice charge can be filed with the NLRB by a union, employee, or other person at any time to challenge a workplace conduct, social media, or dress code policy.  The “ground rules” by which the NLRB judges the legality of such policies can, and do, change, so that periodic review and revision of workplace policies is prudent and necessary.

Jackson Lewis P.C. © 2022National Law Review, Volume VI, Number 189
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Thomas M. Lucas, Jackson Lewis, complex labor litigation lawyer, disability management attorney
Office Managing Principal

Thomas M. Lucas is Office Managing Principal of the Norfolk, Virginia, office of Jackson Lewis P.C.

Mr. Lucas represents management exclusively in the full range of employment and labor law matters, including employment discrimination litigation and traditional labor law. He has represented corporate clients, including clients in the maritime, ship repair, manufacturing, healthcare and service industries, throughout the Mid-Atlantic Region and nationally for more than 30 years. Prior to entering private practice, Mr. Lucas...

757-648-1424
Ramsay C. McCullough, Jackson Lewis, Affirmative Action Counseling Lawyer, Employment Discrimination Attorney
Associate

Ramsay C. McCullough is an Associate in the Norfolk, Virginia, office of Jackson Lewis P.C. His labor and employment counseling and litigation practice includes wage and hour laws, employment discrimination laws, the National Labor Relations Act, affirmative action and OFCCP counseling, white collar defense, False Claims Act and Qui Tam/Whistleblower defense, internal investigations, corporate governance and compliance issues, regulatory training, and asset recovery.

Mr. McCullough is an experienced trial attorney. He...

757-648-1444
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

617-367-0025
Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

212-545-4000
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