DC Circuit Puts On its Thinking Cap when Addressing NLRB Ruling on Hat Restrictions
The United States Court of Appeals for the District of Columbia Circuit recently struck a blow for employer’s rights to regulate headgear, specifically baseball caps. In World Color (USA) Corp. v. NLRB, the DC Circuit reviewed the NLRB’s order that World Color’s restrictions on employees wearing certain types of baseball caps at work was “overbroad” because it precluded employees from engaging in the protected activity of wearing caps bearing union insignia. World Color filed a petition for review and the NLRB cross-filed an application for enforcement.
World Color is a commercial printing business and a subsidiary of Quad/Graphics. Their Safety Manual included language stating that:
“Baseball caps are prohibited except for Quad/Graphics baseball caps worn with the bill facing forward.”
A union filed an unfair labor practice charge claiming the regulation violated an employee’s right to wear union insignia at work. An administrative law judge agreed and recommended that an order be entered barring World Color from enforcing the “discriminatory hat policy.” The NLRB disagreed that the policy was discriminatory but held it was overbroad because it was “undisputed that the policy on its face prohibits employees from engaging in the protected activity of wearing caps bearing union insignia.”
In reviewing the NLRB decision, the DC Circuit found that some facts were disputed—World Color disputed the NLRB’s assertion that the hat policy prohibited employees from having union insignia on a hat. World Color argued that the policy did not expressly prohibit employees from wearing union signs on their hat or otherwise. The Court agreed—although the hat policy restricted the type of hat to be worn, it did not say anything about whether union insignia could be attached to a permissible hat. The Court granted World Color’s petition for review, remanded the dispute back to the NLRB for reconsideration and denied the NLRB’s petition for enforcement.
Although this case may seem like much ado about nothing, it is a good example of how a seemingly innocuous safety regulation can be manipulated into a NLRA violation. Employers should be careful that their dress codes are facially neutral when it comes to any prohibition on the wearing of union insignia.