Harvey Mars is counsel to Local 802. Legal questions from members are welcome. E-mail them to JurMars566@aol.com. Harvey Mars’s previous articles in this series are archived at www.HarveyMarsAttorney.com. (Click on “Publications & Articles” from the top menu.) Nothing here or in previous articles should be construed as formal legal advice given in the context of an attorney-client relationship.

Normally, your boss can tell you what you can and can’t wear to work. But when it comes to union gear, you’ve got fashion protection, courtesy of the Supreme Court.

Wearing union hats, shirts and buttons is the surest way to let your employer and co-workers know that you support the union. The Supreme Court upheld workers’ right to wear union paraphernalia to work in its seminal decision, Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-803 (1945).

The right was granted under Section 7 of the National Labor Relations Act. Workers have the right to organize and to make known their concerns and grievances pertaining to their job. The court found that this includes the wearing of union insignia while at work.

But – there’s always a but…

Even though workers have the right to wear union gear, the court also said that this right must be balanced against the “equally undisputed right of employers to maintain discipline in their establishments.”

In the many decades since the Supreme Court wrote that, the labor board has decided time and time again that sometimes it’s O.K. for employers to demand that workers not wear union gear.

Employers can try to prohibit the wearing of union messages if it might:

• jeopardize employee safety
• damage machinery or products
• exacerbate employee dissension
• unreasonably interfere with the business’s dress code, if such dress code is part of the business’s public image
• threaten decorum and discipline among employees.

For instance, at Noah’s New York Bagels, the labor board found that the employer could prohibit a union t-shirt stating that “if it’s not union, it’s not kosher.”

The Komatsu corporation, which is a Japanese industrial company that has a presence in the U.S., was permitted to prohibit employees from wearing shirts that referenced Pearl Harbor.

In a 1972 case against the telephone company, employees weren’t allowed to wear shirts that said “Ma Bell is a Cheap Mother.”

At Caterpillar and elsewhere, the labor board found that employers could prohibit workers from wearing buttons saying “Don’t be a Scab” and “Don’t be a Free Rider.”

In 2003, post office workers were not allowed to wear fluorescent posters stating “One Year Without a Contract” and the name of their union.

Another company was allowed to tell workers to not wear shirts that said, “I’m Tired of Bustin’ My Ass.”

In assessing whether employers can ultimately tell workers what to wear, the labor board is required to determine whether the employer’s right of control over its business operations, property and premises overrides the rights of the workers.

This burden is a high one for an employer to satisfy, but as demonstrated by the decisions listed above, it can be done.

Thus, before employees decide to wear t-shirts demonstrating union pride, the message the t-shirt conveys must be carefully vetted and scrutinized – or employees may find themselves outside the protection of the law.

Messages that are obscene or incite to violence may very well be prohibited.

Furthermore, messages that deride the quality of the employer’s product or contain untruthful statements about the employer should likewise be avoided.

Probably, the easiest way to ensure that you will fall within the scope of the law is to simply wear a shirt, hat or button that simply states the name of the union. Sometimes less is more.

p.s. There were so many cases referenced in this article that I was unable to cite all of them in detail here. If you’d like to see the citations, e-mail Allegro editor Mikael Elsila at Allegro@Local802afm.org and he’ll send you the original version, which contains the exact name and citations of each case I wrote about.