An employer’s policy prohibiting employees from wearing baseball caps other than the employer’s is an unlawful restriction on employees’ Section 7 activity, an NLRB Administrative Law Judge has decided.  Quad Graphics, Inc., 32-CA-062242 (July 31, 2013).

Under the National Labor Relations Act, the wearing of union insignia by employees in most workplaces   generally is presumed to be a valid exercise of statutory  rights.  (Special rules apply  to  some workplaces, such as healthcare and retail.)  However, an employer may limit or ban the display or wearing of union insignia at work if special circumstances exist that outweigh the resulting adverse effects on employees’ rights.

In Quad Graphics, Inc., the  employer’s policy  that prohibited “… baseball caps … except for [the employer’s] baseball caps worn with the bill facing forward” unlawfully restricted employees’ Section 7 rights. The administrative law judge found that the employer’s “hat policy forbids or prohibits employees from displaying union logos, or for that matter other protected messages, on their hats, if they chose to wear hats,” ruling the policy restricted “employees from engaging in activity protected by the Act.” The administrative law judge concluded that the employer failed to demonstrate special circumstances justifying the ban.

The employer raised three possible special circumstances, all of which were rejected by the ALJ.  The employer argued the policy was necessary for safety reasons (to prevent hair from becoming entangled in machinery).  The ALJ noted, “[t]here is no evidence that a baseball hat, with a union logo, would not secure employees’ hair to their heads preventing the hair from being caught in the [employer’s machinery].” The ALJ also rejected the employer’s additional safety argument that the ban was necessary to alleviate concerns over  the hazards from gang activity.  The ALJ found no evidence of such activity. Finally, the ALJ dismissed the employer’s argument that the logo ban was promulgated for employee-customer interaction purposes. The ALJ determined there was no evidence employees interacted with the employer’s customers.

This case highlights the need for employers to scrutinize their policies to ensure they cannot be interpreted by the NLRB to interfere with employees’ Section 7 rights.  The ALJ’s faulting of the seemingly harmless policy in this case illustrates clearly the risk many “under-the-radar” policies face under the NLRA.   Moreover, it points out that if an employer promulgates an insignia or uniform or dress code policy that relies for its validity  on  special circumstances , the employer  should be prepared  to  prove those  circumstances if necessary.