On December 16, 2019, in Wal-Mart Stores, Inc., the majority of the panel (Board) heading the NLRB's judicial functions found that content-neutral dress code policies maintained by Wal-Mart limiting the wearing of union insignia of specified sizes or appearances:

(368 N.L.R.B. No. 146 (Dec. 16, 2019).)

The Board found that the appropriate framework to determine the lawfulness of Wal-Mart's dress code policies is the Board's test for facially neutral employer policies in Boeing Co. (365 N.L.R.B. No. 154 (2017)). The Board declined to apply the Republic Aviation Section 7 rights-legitimate business interests balancing test and special circumstances exception because the employer's rule did not wholly prohibit union buttons and insignia (Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-03 (1945)).

The practical implications of this case are that the Board will not demand that employers demonstrate special circumstances under Republic Aviation progeny for imposing limitations on the size or appearance of buttons or insignia, including those supporting unions, as recent Boards had before Boeing. This decision also suggests that an employer may categorically prohibit employees from displaying oversized and distracting logos and graphics that cannot be easily affixed or removed in all areas of a store. An employer doing that must be ready to demonstrate legitimate business interests in limiting the size and appearance of buttons and insignia in certain areas, such as ensuring that retail store employees on the selling floor are readily identifiable to customers to enhance the customer shopping experience and protect store merchandise from theft and vandalism.

On August 29, 2022, a 3-2 majority of the Board (Chairman McFerran and Members Wilcox and Prouty) overruled Wal-Mart Stores as inconsistent with the US Supreme Court decision in Republic Aviation and its progeny and reaffirmed the applicability of Republic Aviation's special circumstances test when an employer interferes in any way with employees' Section 7 right to display union insignia (Tesla, Inc., 371 N.L.R.B. No. 131 (Aug. 29, 2022); for more information, see Legal Update, NLRB Reaffirms Employees' Rights to Wear Union Clothing, Buttons, and Insignia Absent Special Circumstances, Overrules Recent Contrary Precedent.)

On November 14, 2023, the Fifth Circuit held that the Board's ruling in Tesla failed to balance properly the competing interests of employees' self-organization and employers' right to maintain discipline in their establishments and relied on precedent involving dissimilar facts. The court therefore held that the Board's ruling rested on erroneous legal foundations and had no reasonable basis in law. The court also concluded that the Board exceeded its statutory authority under the NLRA because the statute does not authorize the NLRB to deem all company uniforms presumptively unlawful. The Fifth Circuit granted Tesla's petition for review, denied the NLRB's cross-application for enforcement, and vacated the Board's opinion. The Fifth Circuit would therefore reinstate the Board's decision in Wal-Mart Stores, which the Board overruled in Tesla (for more information on the NLRB's decision in Tesla, see 2022 Traditional Labor Law Developments Tracker: Section 8(a)(1): Employer Interference with Employees' Exercise of Section 7 Rights). However, it is unlikely that the NLRB will acquiesce to the Fifth Circuit's intention for it to reinstate Wal-Mart’s analysis. Wal-Mart applied the Boeing framework to a content neutral dress code policy, which framework the Board overruled in Stericycle (372 N.L.R.B No. 15 (Aug. 2, 2023)). (Tesla, Inc. v. NLRB, (5th Cir. Nov. 14, 2023); for more information on the Fifth Circuit's opinion, see 2023 Traditional Labor Law Developments Tracker: Section 8(a)(1): Employer Interference with Employees' Exercise of Section 7 Rights.)