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.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Daniel D. Schudroff Daniel D. Schudroff

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.. His practice is focused on traditional labor matters, employment litigation, and counseling. Mr. Schudroff represents clients in both federal and state courts, as well as before administrative…

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.. His practice is focused on traditional labor matters, employment litigation, and counseling. Mr. Schudroff represents clients in both federal and state courts, as well as before administrative agencies including the National Labor Relations Board, New York State Public Employment Relations Board, Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, and New York State Department of Labor. Mr. Schudroff also advocates on behalf of employers at arbitration hearings and during collective bargaining negotiations. In addition, Mr. Schudroff regularly advises unionized and non-unionized clients with respect to a wide array of issues arising under the National Labor Relations Act and Labor Management Reporting and Disclosure Act. Mr. Schudroff also regularly counsels employers affected by the Fair Labor Standards Act, Railway Labor Act, Worker Adjustment and Retraining Notification Act, Uniformed Services Employment and Reemployment Rights Act, New York Labor Law, and Taylor Law.