The National Labor Relations Board on Monday overturned a decision by the Trump administration, ruling that employers’ attempts to impose restrictions on employees’ display of union insignia, including by wearing union clothing, are “presumptively unlawful, absent special circumstances.”
The NLRB said in a statement that its 3-2 decision in Tesla Inc. and Michael Sanchez et al. reversed its earlier decision 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 Monday̵7;s ruling “confirmed longstanding precedent.” It said Wal-Mart stores the ruling had previously held that the “special circumstances” test applies only when an employer prohibits union insignia entirely and that minor restrictions on the size and appearance of union insignia may be considered lawful based on less compelling employer interests.”
Chairwoman Lauren McFerran said in the statement that under the new decision, which was approved by the three Democratic board members, “an employer has an increased burden to justify attempts to limit this important right.”
In their dissenting opinion, 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 for to be effective “the protection of this right requires holding any restriction on the display of union insignia, no matter how small, to be presumptively unlawful.”