NLRB upholds employees’ right to wear union insignia

The National Labor Relations Board on Monday overturned a Trump administration-era decision and ruled that employer attempts to impose restrictions on employees’ display of union insignia, including by wearing union apparel, is “presumptively unlawful, absent special circumstances.”

The NLRB said in a statement that its 3-2 decision in Tesla Inc. and Michael Sanchez et al. overturned its earlier decision in Wal-Mart Stores Inc. and the Organization United for Respect at Walmart (Our Walmart), issued in December 2019. At the time of the Wal-Mart Stores decision, there was a Republican majority on the board; currently, there is a Democratic majority.

The NLRB said in its statement that Monday’s ruling “reaffirmed longstanding precedent.” It said the Wal-Mart Stores ruling had previously held that the ‘“special circumstances’ test applies only when an employer completely prohibits union insignia and that lesser size-and-appearance restrictions on union insignia could be deemed lawful based on less compelling employer interests.”

Chairman Lauren McFerran said in the statement that under the new ruling, which was approved by the three Democratic  board members, “an employer has a heightened burden to justify attempts to limit this important right.”

In their dissent, the Republican board members,  Marvin E. Kaplan and John F. Ring, said that while displaying union insignia in the workplace is an important way for employees to exercise their rights under the National Labor Relations Act, it does not follow that to be effective “the protection of this right requires holding any limitation on the display of union insignia, no matter how slight, to be presumptively unlawful.”