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Employment Blog

NLRB Signals Code Red at Big Blue: Concludes Walmart’s Dress Code Violates NLRA

Authored by Ruder Ware Attorneys
Posted on December 23, 2014
Filed under Employment

As I’ve written in the past, the National Labor Relations Act applies to non-union employers too. I’ve wanted to write about the National Labor Relations Board’s recent “dress code” decision for several days now—however, with the Board's firestorm of significant decisions [email access, here: National Labor Relations Board is "Not-So-Secret" Santa to Organized Labor - Delivers Union-Friendly Gift in Advance of the Holidays and “quickie” election, here: NLRB Finalizes Union Election Rules to "Modernize" and "Streamline" election Process at Nonunion Workplaces], I pushed the dress code decision to the back burner. However, now that the dust has settled a bit, I wanted to remind our employer clients that seemingly innocuous dress code policies may, according to the current Obama Board, violate the NLRA.

On December 9, 2014, one of the Board’s administrative law judges (“ALJ”) issued an interesting decision involving Walmart’s dress code. The decision is available here: Walmart Stores, Inc. Decision. Although Walmart generally allowed its employees to wear certain United Food and Commercial Workers union pins and lanyards—as long as these logos were smaller than the Walmart name tag (2 x 3 inches)—the Board determined that the dress code policy was “facially” invalid, and the mere maintenance of the policy violated the NLRA.

Walmart’s dress code policy read, in pertinent part:

Logos or graphics on shirts/blouses, pants, skirts, hats jackets or coats are not permitted, except the following, so long as the logo or graphic is not offensive or distracting:

  1. A Walmart logo of any size;
  2. A clothing manufacturer’s company emblem no larger than the size of the associate’s name badge; or
  3. Logos allowed under federal or state law.

The Board’s ALJ, upon analyzing the above dress code language, first reiterated that “it is well established that employees have a statutorily protected right to wear union insignia on their employer’s premises, including buttons, t-shirts and other articles of clothing.”  This is the default rule. The ALJ also commented, “[h]owever, an employer may lawfully restrict the wearing of union insignia where special circumstances justify the restriction. According to the Board ALJ, “special circumstances” justify restrictions on union insignia and apparel when their display: (1) may jeopardize employee safety, damage machinery or products; (2) exacerbate employee dissension; (3) unreasonably interfere with a public image that the employer has established; or (4) when necessary to maintain decorum and discipline among employees.

The ALJ determined that Walmart’s policy violated the NLRA because:

  1. The “savings clause” language—“logos allowed under federal or state law”—did not save the otherwise overly broad policy, because it placed the burden on employees to understand that this language permitted the display of certain union insignia and apparel;
  2. The policy did not sufficiently protect Walmart’s public image—as Walmart protested—because Walmart “loosely” enforced the policy;
  3. The policy did not sufficiently protect Walmart’s public image—as Walmart claimed—because the policy was not sufficiently strict to protect an image of “distinctive clothing” intended to identify the wearer as a Walmart employee [like at “world class restaurants” or “United Parcel Services drivers”]; and
  4. The policy applied to physical areas of the store where the “public image” concern is nonexistent or limited. 

In light of this decision, employers are encouraged to revisit, and revise if necessary, dress code policies.