NLRB Fears Union Buttons

By a partisan 3-1 vote, the National Labor Relations Board’s GOP majority shrank the size of union buttons and other insignia workers can wear on the job.

The ruling represented a win for Walmart in its long-running and vicious campaign to stop workers from standing up for themselves, whether by unionizing or, as in this case, by advocacy through a non-union worker group, OurWalmart.

Walmart’s employee handbook banned buttons – or anything else -- larger than its own workers’ name tags. In one case, it said a 3” x 5” pin memorializing a worker killed in a car crash was too large, because it was a half-inch taller than the name tag.

The anti-worker retail monster also banned non-Walmart tags, notably the union buttons, even in “employees only” areas. 

The NLRB majority said limiting the size of the buttons in areas where workers aid customers is legal and fits “special circumstances” where the firm’s interest in successful business must be weighed along with workers’ rights to free expression.

But in warehouses and other non-public areas, there’s no size limit, the majority said.

Nevertheless, the board’s ruling upset its then-lone Democratic member, Lauren McFerran, in one of her last dissents before her term expired. Her seat, along with the other non-presidential party seat on the board, remains unfilled, leaving the three right-wing Republicans named by GOP President Donald Trump in total 3-0 control. 

 They’re using that control to roll back worker protections by the carload, and McFerran warned they could use this Walmart ruling to do it again, and extend the button shrinkage to other forms of worker communication on the job.

“The board’s ‘special circumstances’ approach in insignia cases” conforms to a prior U.S. Supreme Court decision, “which years ago affirmed ‘the right of employees to wear union insignia…as a reasonable and legitimate form of union activity,’” she wrote in dissent. 

“In place of that approach, the majority imposes an alien framework that subverts one of the central rights” workers have under labor law. “My suspicion is today’s decision foreshadows an ongoing effort to dilute other subject-matter-specific rule analyses by smuggling the framework into places where it simply does not belong.”

In so many words, McFerran asked if the GOP NLRB members “now plan to apply” that reasoning “in all  instances where an employer bans some, but not all,” labor law-protected organizing and communication “even beyond insignia cases.” The three GOPers have “an apparent propensity” to restrict buttons and insignia “by finding that employer rules have a ‘relatively minor’ impact on protected rights.”