For example, in Lily Transportation Corporation, the Board affirmed an administrative law judge’s finding that the company dress code violated the NLRA because it could reasonably be understood to prohibit workers from wearing union insignias or logos on their uniforms.2 The rule provides that “No articles of clothing may be worn displaying anything other than the Lily logo or Insignia unless specifically approved by Lily Transportation Corp.” The ALJ noted that the rule “does not distinguish between wearing a union button as opposed to non-union advertisement” and was, therefore, unlawful.

Similarly, in Grill Concepts Services, Inc., the Board determined that the employer violated section 8(a)(1) when it prohibited employees from wearing union insignia at the workplace but had allowed other employees to wear other buttons in the past.3 The Board concluded that the rule was not narrowly tailored to the special circumstances justifying the rule. The fact that the employer has a uniform policy and that customers may be exposed to union insignia are not sufficient to constitute special circumstances.

Further illustrating the necessity of proving special circumstances to justify a prohibition on wearing insignia, in Refresco Beverages US, Inc., the Board reversed an administrative law judge's decision and found that an employer violated the Act by directing an employee to remove a union sticker from his single-use coveralls.4 The employee had been wearing a union sticker on his coveralls for almost a year without issue, but shortly before a union election, a manager instructed the employee to remove the sticker, citing contamination concerns. The judge determined the employer's concerns about safeguarding its equipment and food products constituted special circumstances justifying its restriction on union insignia and noted that the restriction applied narrowly to a location where employees handled food product. The Board, however, found the employer failed to provide sufficient evidence that the sticker posed a genuine contamination risk and did a deep dive into whether the sticker had a tendency to fall off and whether employees wore them on other apparel (e.g., helmets). The Board held the employer's prohibition on wearing union stickers was not justified by special circumstances.

However, in Wal-Mart Stores, Inc., the Board held that business justifications of enhancing the customer shopping experience and protecting the company’s merchandise from theft or vandalism supported the maintenance of rule limiting the size and appearance of union buttons for the sales floor but no other areas.5 In so doing, the Board observed that a restriction on union insignia, as opposed to an outright prohibition, “warrant[ed] individualized scrutiny in each case” as a Boeing Category 2 rule.

Later, the Board overruled Wal-Mart Stores, Inc.6 The Board stated that the Wal-Mart decision was fundamentally flawed because the ruling treated the display of union emblems as a privilege granted by employers rather than a labor law right that must be accommodated, unless there are special circumstances. The Board reverted back to the old standard by reaffirming that the “special circumstances” test applies “[w]hen an employer interferes in any way with its employees’ right to display union insignia.”

Recently, the Board affirmed an administrative law judge’s decision finding that an employer violated the Act by establishing a rule prohibiting employees from possessing or distributing union materials storewide. There, the employee placed a bag of union buttons and business cards on a counter in the employees’ break area. The employee’s manager said materials were not allowed in the store and removed the bag. The rule was presumptively invalid because it facially prohibited employees from having or distributing union materials in the store with no exceptions for particular areas or times.7

However, a ban by a health care employer on the wearing of all union insignia is presumptively valid in immediate patient care areas as long as the employer does not selectively ban certain insignia. In Sacred Heart Medical Center, the NLRB upheld the right of an acute-care medical center to prohibit employees from wearing union buttons stating “RNs demand safe staffing” where employees might encounter patients or their families.

Acknowledging that restrictions on wearing union buttons outside of immediate patient care areas are presumptively invalid, the labor board concluded that the employer had demonstrated special circumstances to justify the restriction. Although there was no evidence of actual disturbance or concern by patients, the labor board found that the buttons sent a clear message to patients that their care is in jeopardy. “A hospital need not wait for the awful moment when patients or family are disturbed by a button before it may be lawfully restricted.”8

The Board has clarified that special circumstances exist where a restriction is “necessary to avoid disruption of health-care operations or disturbance of patients,” but not simply where an employer merely speculates that union buttons serve to show patients that a hospital is unsafe.9

• Under recent case law, unions may have less leeway in using trademarked imagery to adapt employers’ brands for their own merchandising. In September 2025, the Ninth Circuit Court of Appeals reversed a California federal court's decision to dismiss a suit filed by a grocery store against a union that used “strikingly similar” brand imagery to sell its merchandise.10 The grocery store filed a trademark infringement suit arguing that the union's use of its logo on merchandise would confuse the company's customers and dilute its brand; the company sought damages and an order prohibiting the union from selling items bearing its logo. In unanimously deciding to reverse the lower court's dismissal, the Ninth Circuit considered an eight-factor test to determine whether a “reasonably prudent consumer” in the marketplace would be likely to confuse the origin of the union's merchandise. The Court determined that it was appropriate to reverse the district court's dismissal of the company's trademark infringement claim. This case signals that unions must sufficiently distinguish their own branding from employers' when creating emblems to promote and merchandise themselves.

1. Starwood Hotels & Resorts Worldwide, Inc., dba W San Diego, 348 NLRB 372 (2006) (permissible to bar hotel workers from wearing union sticker in public areas where the hotel was trying to ensure employees would appear “trendy, distinct and chic” to guests, but impermissible to ban the union sticker in non-public areas); Mt. Clemens Gen. Hosp. v. NLRB, 328 F.3d 837 (6th Cir. 2003) (no special circumstances justified a hospital prohibiting nurses from wearing union buttons)