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Walmart Gets Green Light to Restrict Union Buttons at Work (2)

Dec. 23, 2019, 9:50 PMUpdated: Dec. 23, 2019, 11:33 PM

Employers can more easily restrict workers from wearing union buttons and other insignia under a National Labor Relations Board ruling released Dec. 23.

The NLRB held that Wal-Mart Stores, Inc. policies that say workers can only wear “small, non-distracting” insignia no larger than the size of employee name badges are lawful. That’s because the business’ goals in maintaining the practice—enhancing the customer shopping experience and protecting merchandise from theft—outweigh any potential harmful impacts on workers’ rights to organize and unionize, the board said.

An identical policy applied to areas outside of the “selling floor”—where employees don’t encounter customers—is unlawful, the NLRB ruled in a 3-1 opinion dated Dec. 16.

The ruling is a loss for the union-affiliated Organization United for Respect at Walmart, or Our Walmart. it also marks a pro-business turn in the NLRB’s approach to cases concerning union buttons and other insignia.

The board has generally analyzed those cases under precedent from the 1940’s that recognizes worker’s right to wear union insignia, and presumes that employers’ limitations are unlawful unless they demonstrate “special circumstances” justifying the restriction. That case is known as Republic Avaiation.

Borrowing from Boeing

The Republican majority in the Walmart case said the NLRB will begin looking at limits on union insignia on the job using the analysis for “facially neutral” workplace policies laid out in its 2017 Boeing decision. The Republic Avaiation analysis specifically concerns insignia, while the Boeing case laid out a broad framework for considering the legality of almost any employer “handbook” rules.

“Necessarily, because the infringement on” union “rights is less severe, the employer’s legitimate justifications for maintaining the restriction do not need to be as compelling for its policy to pass legal muster, and justifications other than the recognized special circumstances may suffice,” the board majority wrote. “In such cases, we will apply the analytical framework in Boeing.”

The Boeing standard requires the board to weigh the nature and extent of the potential impact on union rights against the employer’s legitimate justifications in cases challenging “facially neutral” rules.

Democrat Lauren McFerran dissented from the decision, saying the Republican majority ignored the NLRB’s own as well as U.S. Supreme Court precedent. McFerran, whose term ended Dec. 16, also expressed concern that the board plans to expand the use of the Boeing framework to a wide range of unfair labor practice disputes.

“Today, the majority brushes aside Republic Aviation and its progeny and applies the less demanding standard from its deeply flawed decision in Boeing Co. to find that the Respondent’s restriction of its employees’ Section 7 right to wear union insignia was lawful,” McFerran wrote.

“I fear that today’s decision signals the majority’s intention to import the Boeing frame work—which is less protective of Section 7 rights—into other well-settled areas of Board law that currently require their own subject-matter specific analyses,” she wrote. “That surely would not be a welcome development for workers.”

Walmart settled a case with OUR Walmart in 2018 that required the company to drop some policies restricting union pins.

The Supreme Court earlier this year rejected In-N-Out Burger Inc.'s petition to challenge an NLRB ruling that the company’s restrictions on union buttons were illegal. The board applied the Republic Aviation standard in that case.

The case is Wal-Mart Stores Inc., N.L.R.B., No. 13–CA–114222, 12/16/19.

(Updated with additional reporting.)

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Terence Hyland at thyland@bloomberglaw.com; Chris Opfer at copfer@bloomberglaw.com

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