NLRB Judge Holds that Company Dress Code Interferes with Employees' Rights under the NLRA

NLRB Judge Holds that Company Dress Code Interferes with Employees' Rights under the NLRA

 Alma Products Company produces component parts for automobiles and has a unionized workforce. In 2012, during a contentious bargaining period for a new contract, employee Mark Gluch wore a t-shirt that depicted a ball and chain with the word "SLAVE" written on it. The shirt itself had been created by the union during a prior bargaining period some 20 years earlier and had been worn by various employees over the years. Motivated largely by a desire to rid the plant of the SLAVE shirt, in 2006, the company promulgated a dress code. The policy provided in part:

SUBJECT: Plant Dress Code

As we move forward in 2006, the Company will be aggressively seeking new business and inviting current and potential customers into the plants to see the changes being made in our operations. In accordance with this, we are implementing a dress code policy to ensure that we maintain a positive image to visitors. Effectively immediately, clothing displaying vulgar/obscene phrases, remarks or images which may be racially, sexually or otherwise offensive and clothing displaying words or images derogatory to the Company will not be allowed in any facilities. Similarly displays of these kinds of items are also prohibited on workstations, lockers, tool boxes and the like.

In addition, all regular safety-related dress code regulations remain in effect.

If you are uncertain whether an article of clothing is appropriate under this policy, follow the old adage of better safe than sorry and refrain from wearing it at work. Questions regarding this policy may be addressed to your supervisor or Human Resources. Repeated violations of this policy may result in discipline up to, and including, discharge. Thank you for your cooperation and adherence to this policy.

On the day that Gluch wore the SLAVE shirt in 2012, his supervisor informed him that "the Company" did not like the shirt, and demanded that Gluch either take off the shirt or turn it inside out. When Gluch refused, Alma sent him home without pay.

Administrative Law Judge, Paul Bogas, reviewed the disciplinary action and concluded that Alma's dress code "set forth overly broad restrictions that interfered with" employees' rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, under Section 7 of the National Labor Relations Act ("NLRA"). Accordingly, enforcement of the dress code against Gluch constituted an unfair labor practice under Section 8(a)(1) of the NLRA. The decision in Alma Products is consistent with other recent NLRB decisions that scrutinize union as well as non-union employers' handbooks for policies that may indirectly impact employees' rights to engage in union activities. In order to avoid charges of unfair labor practices, employers should craft dress codes that provide legitimate business rationales for the dress standards established. Additionally, the standards should be specific as to what clothing is impermissible, and avoid broad generalities that could be construed to impinge on union-related activities. Finally, if the employer is already a union employer, then it may want to include a provision that explicitly states that communications protected by Section 7 are permitted under the dress code.

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