It is often observed that “elections have consequences.” One of the principal (although hardly the only) places where this is evident is on the National Labor Relations Board (NLRB) where the balance between decisions favoring unions and those favoring employers tips depending upon the administration in control of the White House—which appoints the majority of members to the NLRB. Because one new member is nominated each year for a five-year term and the time that it takes for cases to work their way through the various hearing stages before reaching the full board, the swing when the administration changes parties can take up to three years.

The board’s recent decision in Tesla ____ NLRB ____ (Aug. 29, 2022) represents the first major reversal since the board members nominated by Democrats returned to the majority. In Tesla, the board overruled the board’s 2019 decision in Wal-Mart Stores, 368 NLRB No. 146 (2019), as to the standard to be applied to evaluate the lawfulness of workplace rules restricting the display of union insignia or logos on clothing,

Union Insignia Protected in the Workplace

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