Tesla v. NLRB, No. 22-60493 (5th Cir. 2023)
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Tesla requires its employees to wear uniforms to minimize damage to vehicles throughout the production process. When employees wore union t-shirts instead, Tesla informed them they were violating the uniform policy and threatened to send them home. The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL CIO (“Union” or “UAW”), filed an unfair labor practice charge, and a divided National Labor Relations Board (“Board” or “NLRB”) ruled that Tesla was infringing on its employees’ rights to unionize under the National Labor Relations Act (“NLRA” or “Act”). Tesla petitioned for review, claiming that the Board’s decision irrationally made all company uniforms presumptively unlawful. The NLRB cross-applied for enforcement.
The Fifth Circuit granted Tesla’s petition for review, denied the NLRB’s application for enforcement, and vacated the Board’s decision. The court agreed with Tesla that the NLRA does not give the NLRB the authority to make all company uniforms presumptively unlawful. The court explained that the Team Wear policy—or any hypothetical company’s uniform policy—advances a legitimate interest of the employer and neither discriminates against union communication nor affects nonworking time. And a prohibition is a greater infringement than is a restriction. Therefore, by treating any restriction as per se equivalent to a prohibition, the NLRB has failed to balance—or even strike a reasonable accommodation of—the employer’s and employees’ rights.
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