NLRB Decision that Baseball Cap Policy Banned Union Insignia Overruled

By Allen Smith Jan 20, 2015

An employer’s policy forbidding the wearing of all baseball caps other than company caps did not necessarily infringe on an employee’s right to wear union insignia at work, the U.S. Circuit Court of Appeals for the District of Columbia decided on Jan. 16, 2015. As a result, the policy did not necessarily violate the National Labor Relations Act (NLRA), the court ruled, upending a National Labor Relations Board (NLRB) decision that the policy was unlawful.

“The court supports an employer’s right to maintain a uniform policy in the workplace,” said Ron Holland, an attorney with Sheppard Mullin in San Francisco who represented World Color, which had the disputed policy. “It balanced the right to maintain a uniform policy and wear union insignia.”

Corporate Safety Program Policy

World Color, a subsidiary of Quad/Graphics, was subject to Quad policies, including a uniform policy and a rule in the Corporate Safety Program section of the employee guidelines.

The safety rule specifically mentioned baseball caps, saying, “All hair hanging past the bottom of the collar must be secured to the head while in the production areas. If hair does not hang past the collar but could potentially get caught in our equipment, it must be secured to the head with a hairnet or by other means. Baseball caps are prohibited except for Quad/Graphics baseball caps worn with the bill facing forward. Ponytails are strictly prohibited. Facial hair longer than the base of the neck must be secured.”

Policy Challenged, Struck Down

The Graphic Communications Conference of the International Brotherhood of Teamsters filed an unfair labor practice charge before the NLRB, asserting that this policy interferes with employees’ exercise of their Section 7 rights to engage in concerted activities for the purposes of collective bargaining.

Section 7 of the NLRA protects an employee’s right to wear union insignia at work unless there are special circumstances, the court noted.

An administrative law judge (ALJ) determined that the hat policy violated this right. In reaching this determination, the ALJ ruled that Quad had not substantiated its claims of special circumstances about the safety of press operators, and concerns about gang activity and employee presentation.

Special circumstances may include safety considerations or environmental concerns, such as maintaining a clean room for patients, Holland observed.

On appeal to the NLRB, the board concluded that it was “undisputed” that the policy “prohibits employees from engaging in the protected activity of wearing caps bearing union insignia.” The board ordered World Color to rescind the hat policy, issue a revised policy and post a notice stating that the NLRB had found that World Color had violated federal labor laws.

D.C. Circuit Remands

On appeal to the D.C. Circuit, the appeals court disagreed, finding that World Color in fact had disputed that the hat policy prohibited employees from wearing caps bearing union insignia.

The policy says nothing about whether union insignia may be attached to the hat, the court noted. Also, the general uniform policy lets employees accessorize “in good taste and in accordance with all safety rules,” and adds that “all uniform requirements will be applied in accordance with applicable laws.”

World Color consistently argued that the hat policy is part of its uniform policy and that its policies therefore let an employee adorn a Quad cap with union insignia.

The appeals court has sent the case back to the NLRB for reconsideration.

This case is World Color Corp. v. National Labor Relations Board, No. 14-1028 (D.C. Cir. 2015).

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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