On February 12, 2021, in Tesla, Inc., the panel (Board) heading the NLRB's judicial functions issued a notice and invitation to the parties and interested amici to submit briefs regarding the propriety of the Board's decision in Stabilus, Inc., in which the Board held that an employer may not avoid the "special circumstances" test under Republic Aviation Corp. v. NLRB by requiring employees to wear uniforms or other designated clothing, thereby precluding them from wearing clothing bearing union insignia (324 U.S. 793, 801 (1945); 355 N.L.R.B. 836, 838 (2010)).

Specifically, the Board requested input on the following two questions:

Through the E-Filing portal:

(370 N.L.R.B. No. 88 (Feb. 12, 2021).)

On March 05, 2021, the Board issued an order extending the time for submitting briefs in response to the notice and invitation to file briefs issued on February 12, 2021 in Tesla, Inc.

Under the extension:

Responsive briefs by the parties must be submitted by April 6, 2021.

On August 29, 2022, a 3-2 majority of the Board (Chairman McFerran and Members Wilcox and Prouty) reaffirmed the long-standing principle established by the US Supreme Court's decision in Republic Aviation Corp. v. NLRB and its progeny that restrictions on the display of union insignia in the workplace are presumptively unlawful absent the employer's demonstration of special circumstances justifying the restriction (324 U.S. 793, 801 (1945)). The special circumstances test applies even where the restriction results from the application of a nondiscriminatory, consistently enforced uniform policy or dress code, rather than an express prohibition on union insignia or apparel (see Stabilus, Inc., 355 N.L.R.B. 836, 838 (2010)). The majority also overruled its recent decision in Wal-Mart Stores, Inc. as inconsistent with Republic Aviation (368 N.L.R.B. No. 146 (Dec. 16, 2019); for more information, see Legal Update, Applying Boeing, Dress Code Policy Limiting Certain Union Insignia Lawful in Customer Areas, Unlawful Outside Selling Floor: NLRB). (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.)