Employers everywhere are currently easing into 2024 and preparing for labor-related challenges to come. Those include a lack of clarity regarding logos – belonging to companies, unions, and social causes – which can lead to uncomfortable situations involving highly politicized topics.
As we previously discussed, courts have recently been siding with unions when their improper use of company logos causes reputational damage, but the legal system has been less clear when it comes to union logos and/or political messaging on workplace apparel.
Over the past few years, courts also have not yielded a clear roadmap for employers to follow on this issue. Let us count the inconsistent ways:
A union win: In May 2023, an administrative law judge ruled that the NLRB correctly claimed that Kroger-owned grocery stores illegally banned Black Lives Matter-themed face masks and buttons in the workplace. Thus, the company was required to allow this BLM apparel even though it had been distributed by UFCW and marked with the union’s logo.
A company concession: In the fall of 2021, Starbucks reversed its own ban on workers wearing Black Lives Matter logos and apparel. The company further offered to print Starbucks-branded BLM t-shirts for baristas, and Starbucks expressed solidarity despite some customers “expressing a preference not to see Black Lives Matter messaging in their local coffee shop.”
Starbucks might have considered the “pick your battles” adage here, given that the company is already under NLRB siege on several other fronts. The gesture, however, apparently did not win any goodwill with Workers United, which recently dragged Starbucks into a no-win political firestorm by using the company logo while sounding off on the Israeli-Palestinian conflict.
An initial win for business: In Nov. 2023, a federal appeals court sided with Tesla after the NLRB declared that the company’s workplace ban on shirts with the UAW logo was illegal. The court’s rationale pointed towards Tesla allowing workers to display insignia in other ways, including stickers, which meant that the company wasn’t attempting to quash collective action.
Another employer win: In Dec. 2023, a three-year legal saga ended in Whole Foods’ favor when an administrative law judge ruled that the company did not act illegally while banning BLM apparel in the workplace. The judge also held that this attire did not qualify as NLRA-“protected activity” because it wasn’t substantially related to workplace duties.
This ruling arrived after Whole Foods received criticism for the ban, and workers sued while claiming inconsistent policies due to the company allowing Pride flags and associated apparel. Whole Foods then revised its policy to prohibit all outside messaging and logos on uniforms, a move that the NLRB said violated the NLRA because it barred collective action. In the end, it took multiple court rulings for Whole Foods to win the right to eliminate political messaging of any type on uniforms and apparel.
No predictable takeaway yet: Some judges do see the value in allowing employers to run their business as they see fit, but the results are anything but consistent. As well, administrative law judges’ decisions do not set binding precedents for future cases, so employers would be wise to watch for further developments on logos and political messaging in the workplace.