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Car dealer’s dress code invalidated by NLRB

car-dealerA car dealership could not enforce a policy banning employees from wearing pins, insignia and “message clothing” in the workplace, the 1st U.S. Circuit Court of Appeals has ruled in a split decision.

The dealership petitioned for review of a decision by the National Labor Relations Board finding that the dress code constituted an unfair labor practice.

“We cannot say the Board acted unreasonably in concluding that, in accordance with Board precedent, [the dealership] failed to demonstrate special circumstances that suffice to justify this dress ban,” Judge David J. Barron wrote for the 1st Circuit majority.

Judge Norman H. Stahl dissented.

“I believe that an employer can demonstrate special circumstances as a matter of law if the employer reasonably believes that a dress code will enhance its public image and the employer shows that it has maintained, and neutrally enforced, a clear and consistent dress code policy for public-facing employees who are on duty,” he wrote.

The 71-page decision is Boch Imports, Inc. v. National Labor Relations Board.

Anthony D. Rizzotti of Boston represented the employer. The board’s case was argued by Jared Cantor of Washington, D.C.

Dress code

The dispute originated with Boch Honda’s issuance of an employee handbook in July 2010. The Boch employees’ collective bargaining representative — the International Association of Machinists & Aerospace Workers, District Lodge 15, Local Lodge 447 —asserted that some of the workplace policies contained in the handbook infringed upon employees’ right to organize in violation of the National Labor Relations Act.

The board issued a formal complaint in 2012 alleging that some of the policies in the 2010 handbook, including a “dress code and personal hygiene” provision, were unlawful.

The employer issued a revised employee handbook that altered the workplace policies that were the subject of the board’s complaint. The 2013 version of the dress ban provided: “Employees who have contact with the public may not wear pins, insignias, or other message clothing.”

“I believe that an employer can demonstrate special circumstances as a matter of law if the employer reasonably believes that a dress code will enhance its public image and the employer shows that it has maintained, and neutrally enforced, a clear and consistent dress code policy for public-facing employees who are on duty.”

— Judge Norman H. Stahl, in dissenting opinion

An administrative law judge held that the employer’s interest in maintaining its public image did not justify the imposition of a “blanket” ban on the wearing of  insignias and message clothing without regard to such factors as size and message. The ALJ held, however, that the dealership’s interests in promoting workplace safety and preventing damage to vehicles did justify the imposition of a comprehensive ban on pins.

The NLRB held that the employer’s interest in maintaining its public image did not justify the dress code. But the board disagreed with the ALJ’s ruling on the imposition of the ban on pins. The board held that such a ban was not narrowly tailored to address concerns about workplace safety and prevention of damage to vehicles.

No special circumstances

Though employees are presumptively entitled to wear union insignia and other attire during work hours, the NLRB has made clear that an employer may limit that activity if the employer shows that there are “special circumstances” that justify the limitations imposed.

In its 2006 decision in Starwood Hotels & Resorts Worldwide, Inc., d/b/a W San Diego and Hotel, Employees and Restaurant Employees Int’l Union, Local 30, CLC, the board said that special circumstances exist “when the[] display [of union attire] may jeopardize employee safety, damage machinery or products, … or unreasonably interfere with a public image that the employee has established,” among other things.

In Starwood, the board found that a hotel employer demonstrated special circumstances to justify the employer’s specific enforcement of its general ban on uniform adornments, which meant that the employer could lawfully prevent its uniformed employees from wearing a particular union button in public areas.

“Limitations on union attire, however, generally must be tailored to advance the special circumstance, and the burden is on the employer to establish both that special circumstances exist and that those circumstances justify the breadth of the limitations imposed,” Barron cautioned.

“In challenging the Board’s ruling, Boch appears to ask for a blanket seal of approval for its blanket dress ban,” he noted. “To that end, Boch first contends that the record shows that it reasonably believed that the 2013 dress ban would further its interest in promoting its public image and that the Board had no basis for requiring Boch to show anything more.”

In ruling against the dealership, the board distinguished Starwood by explaining that the employer in that case provided evidence “demonstrat[ing] that its strict uniform policy was intended to create a specific and unique environment,” while Boch provided no “comparable” evidence.

“In other words, the Board reasonably found that Boch was not comparable to the employer in Starwood because Boch was generally promoting professionalism and not something more distinctive and because Boch was willing to tolerate a fair amount more variation in dress as to the employees to whom the ban applies,” Barron said.

“As the Board reasonably concluded, Boch simply failed to explain why the additional increment of variation that might arise from non-uniformed employees’ wearing a small and unobtrusive union pin (for example) would unreasonably interfere with the general professional environment Boch sought to create,” he added.

The majority acknowledged that the dealership neither promulgated its dress code in response to union activity nor enforced it in a discriminatory manner.

“But while the presence of these circumstances may constitute grounds for invalidating a dress ban, … it does not necessarily follow that the absence of these circumstances constitutes a ground for upholding a dress ban of this breadth,” Barron stated. “Thus, the fact that Boch did not promulgate the dress ban in response to union activity and the fact that Boch has not enforced the ban in a discriminatory manner are not themselves facts that require the Board to uphold a ban of this breadth.”

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