D.C. Circuit Catches National Labor Relations Board Not Following its Own 2-Step Test on Whether A Handbook Policy Interfered with Employees’ Section 7 Rights

World of Color Corp. prohibits employees from wearing any baseball caps except for caps bearing the company logo, and those caps must be worn with the bill facing forward. The Teamsters took issue with the policy and filed an unfair labor practice charge against the company saying that the policy interfered with workers’ rights under Section 7 of the National Labor Relations Act, which allows them to wear union insignia. An NLRB Administrative Law Judge agreed, and the Board ultimately confirmed the ALJ’s decision.

On appeal, the D.C. Circuit Court ruled that the NLRB erred by not following the 2-step Guardsmark test. First, the Board must examine whether the rule explicitly restricts Section 7 activity; if it does, the rule violates the Act. If not, the Board must then consider whether (1) an employee would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7.

Although the World of Color hat policy required employees to wear a company hat rather than any other hat – including a union hat – the company argued that it allowed employees to wear union insignia by accessorizing the hats in an appropriate manner. Thus, the Board was wrong when it held that the policy facially prohibited employees from wearing union insignia on their company caps. Thank you D.C. Circuit for another pro-management ruling.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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