The Republican-controlled National Labor Relations Board (NLRB) ended 2019 by rolling back another round of Obama-era regulations and handing down a number of pro-employer decisions. One of those rulings restricts workers from wearing union buttons and other pro-labor insignia.
The Organization United for Respect at Walmart (Our Walmart) had challenged a company policy limiting the size of union buttons for employees of the retail corporation. The group seemingly had momentum on its side. In 2017, the NLRB rejected an attempt by the fast-food chain In-N-Out Burger to prohibit its workers from wearing “Fight for $15” buttons during their shifts. The company then tried to have the case heard before the U.S. Supreme Court, citing the court’s infamous anti-union Janus ruling to argue for an expansion of corporations’ free speech rights, but the case was declined. “Today’s decision affirms that no company can just unilaterally decide to take away our right to speak out and join together in a union,” In-N-Out employee Alondra Becerra told Bloomberg Law in February of 2019. “It’s a victory for workers everywhere who are fighting to win our unions and make the economy more equal that the Supreme Court is not going to take up In-N-Out’s case.”
However, in a 3 – 1 decision handed down on December 16, 2019, the NLRB ruled that private sector employers covered by the NLRB are allowed to ban some union insignia. Walmart had argued that its restrictive policies “enhance the customer shopping experience and protect its merchandise from theft or vandalism.” The NLRB agreed. The decision further erodes worker rights and will make it harder for employees to openly back unionization campaigns while on the job.
The decision upends a 75-year-old precedent that was established in the 1945 Republic Aviation Corp. v. Labor Board case. In doing so, the NLRB cited its 2017 Boeing ruling, which established a new test to determine whether employer rules are lawful: The court must weigh the rights of workers against the concerns of the employer. By the conditions of Boeing, the NLRB ruled that it’s unlawful for Walmart to prohibit certain union buttons in “employees only” zones like break rooms, but perfectly legal to require that they are “small and “non-distracting” on the sales floor. “[Walmart’s need] to enhance the customer shopping experience and protect its merchandise from theft or vandalism — outweigh the adverse impact on employees’…rights,” reads the decision.
The lone dissent came from the only Democrat who was on the board at the time, Lauren McFerran. “I fear that today’s decision signals the majority’s intention to import the Boeing framework… 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.” McFerran’s term expired shortly after the decision.
Cyndi Murray, a United for Respect member and Walmart associate of 20 years, slammed the ruling in an interview with In These Times. “Trump’s NLRB continues to put the interests of large corporations ahead of working families,” said Murray. “Walmart’s CEO McMillon would rather us not talk about having our hours cut or how no one can make ends meet at $11 an hour, but this ruling won’t stop people who work at Walmart from continuing to speak out for living wages and respect.”
The Walmart decision comes amid a barrage of pro-employer rulings that will surely make workplace organizing more difficult. Last month, the NLRB overturned the Obama-era Lincoln Lutheran of Racine decision, effectively allowing employers to unilaterally end automatic deductions of union dues when a collective bargaining agreement expires. In Caesars Entertainment, it found that the casino didn’t break the law by prohibiting employees from using their work email addresses for “non-business information.” In blocking potential unionizing on these platforms, the board overturned an Obama-era decision which protected the right to share information regarding “wages, hours, or working conditions” via company email. The board also reversed union election rules that were adopted under Obama. Employers will now have more time to prepare for organizing votes and potentially develop plans to thwart unionization efforts.
Despite the large number of strikes and work stoppages in 2019, union membership in the United States remains scant. On January 22, the Bureau of Labor Statistics (BLS) released data showing that the percentage of wage and salaried workers in unions fell by 0.2 points last year to a record low of 10.3%. A recent piece of legislation called the Protecting the Right to Organize Act (or the PRO Act) would strengthen unions and make it easier for workers to organize, but it has yet to receive a vote on the House floor.
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