The Republican-controlled National Labor Relations Board (NLRB) ended 2019 byÂ rolling backÂ 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 itsÂ side. In 2017, the NLRB rejected an attempt by the fast-food chain In-N-Out Burger to prohibit its workers from wearingÂ âFight for $15âÂ buttons during their shifts. The company then tried to have the case heard before the U.S. Supreme Court, citing the courtâs infamous anti-unionÂ JanusÂ ruling to argue for an expansion of corporationsâ free speech rights, but the caseÂ was declined. âTodayâs decision affirms that no company can just unilaterally decide to take away our right to speak out and join together in a union,â In-N-Out employee Alondra BecerraÂ toldÂ Bloomberg LawÂ in February of 2019. âItâs 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-Outâs case.â
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 âenhance the customer shopping experience and protect its merchandise from theft or vandalism.â 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 1945Â Republic Aviation Corp. v. Labor Board case. In doing so, the NLRB cited its 2017Â BoeingÂ 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 ofÂ Boeing, the NLRB ruled that itâs unlawful for Walmart to prohibit certain union buttons in âemployees onlyâ zones like break rooms, but perfectly legal to require that they are âsmall and ânon-distractingâ on the sales floor. â[Walmartâs need] to enhance the customer shopping experience and protect its merchandise from theft or vandalismâoutweigh the adverse impact on employeesâ…rights,â readsÂ the decision.
The lone dissent came from the only Democrat who was on the board at the time, Lauren McFerran. âI fear that todayâs decision signals the majorityâs intention to import the Boeing frameworkâŚ into other well-settled areas of Board law that currently require their own subject-matter specific analyses,â sheÂ wrote. âThat surely would not be a welcome development for workers.â McFerranâs termÂ expiredÂ shortly after the decision.
Cyndi Murray, a United for Respect member and Walmart associate of 20 years, slammed the ruling in an interview withÂ In These Times. âTrumpâs NLRB continues to put the interests of large corporations ahead of working families,” said Murray. “Walmartâs 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 wonât stop people who work at Walmart from continuing to speak out for living wages and respect.â
The Walmart decision comes amidÂ 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,Â effectively allowingÂ employers to unilaterally end automatic deductions of union dues when a collective bargaining agreement expires. InÂ Caesars Entertainment, it found that the casino didnât break the law by prohibiting employees from using their work email addresses forÂ ânon-business information.â In blocking potential unionizing on these platforms, the board overturned anÂ Obama-era decisionÂ which protected the right to share information regarding âwages, hours, or working conditionsâ via company email. The board alsoÂ reversedÂ 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 theÂ large numberÂ of strikes and work stoppages in 2019, union membership in the United States remains scant. On January 22, theÂ Bureau of Labor Statistics (BLS) releasedÂ 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.
This article was originally published at In These Times on January 28, 2020. Reprinted with permission.Â
About the Author: âMichael Arria is the U.S. correspondent for Mondoweiss. Follow him on Twitter: @michaelarria.