NLRB Reinforces Right to Wear Union Insignia, Discuss Unions

By Dinah Wisenberg Brin February 19, 2021
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Three employees in a discussion while in an atrium

​The National Labor Relations Board (NLRB) recently upheld workers' right to wear union symbols and discuss union matters in the workplace, with certain exceptions.

Employers may not impose broad bans on union insignia except under "special circumstances," the NLRB ruled in two related decisions that affirmed the agency's long-standing position.

In a separate case, the NLRB decreed that an employer may not prohibit union-related conversations on the job when it allows employees to discuss other nonwork topics, but the agency upheld rules prohibiting workers from disparaging the company.

"All of these decisions deal with direct union activity by the employees—talking about the union, or wearing union insignia," noted James Bucking, a Boston-based attorney at Foley Hoag. Since union activity is protected under the National Labor Relations Act (NLRA), he added, "the board tends to be pretty strict about employer restrictions of this kind."

In two related orders in December (American Medical Response West, NLRB Case 20-CA-229397, and American Medical Response West of Southern California, NLRB Case 21-CA-231607), the board ruled that an employer must prove the existence of special circumstances to justify a ban on employees' right to wear union insignia in the workplace, noting that such bans "must be narrowly tailored and not extend beyond the special circumstances."

The NLRB decided that ambulance service provider American Medical Response West in Sacramento, West Sacramento, Rocklin, Santa Rosa and San Francisco, Calif., had violated federal labor law by directing employees not to wear buttons campaigning against a state ballot proposition. The wearing of such insignia constitutes protected activity, the board noted.

While the ambulance service asserted it issued the ban for patient safety and its public image, the prohibition "applied to all employees during their working hours, even when they were not interacting with patients or the public," the board said, calling the ban an overly broad violation of workers' rights under the NLRA.        

The board made a similar ruling in a case involving American Medical Response of Southern California, which had directed employees not to wear various union buttons.

In a third decision (BMW Manufacturing Co., NLRB Case 10-CA-178112), the NLRB ruled in December that BMW Manufacturing Co. had violated employees' rights under federal labor law "by discriminatorily prohibiting conversations about the union during worktime while permitting conversations about other nonwork subjects, by creating the impression that employees' union activities were under surveillance" and by maintaining an overly broad ban against union solicitation activities in work areas.

At the same time, the board backed the comprehensive nondisparagement provisions in BMW's employee guidebook, which require workers to demonstrate respect for the company and not engage in activities that reflect negatively on the business. 

The NLRB cited an employer's legitimate need to rely on employee loyalty and to protect that loyalty with neutral rules against disparagement; a company's interest in maintaining such rules is substantial and outweighs any potential adverse effect on workers' organizing rights, the board said.

Special Exceptions for Insignia Bans

"These cases are consistent with law that has already been in effect. Limitations on employees' right to wear union insignia at work are generally unlawful. Even when an exception exists, the rule must be narrowly tailored," said Molly Lee Kaban, an attorney with Hanson Bridgett in San Francisco.

Nondisparagement rules generally are lawful unless there's significant and obvious infringement on employees' organizing rights, she added.

In the American Medical cases, the NLRB "applied the long-standing rule that an employer needs special circumstances to prohibit the wearing of union insignia. The board found no special circumstances despite the medical setting, in part because the employer had a blanket prohibition that did not distinguish between public and private locations and instances where the employees were working with patients," Bucking said.

Bans on union insignia are unlikely to be upheld in general, although employers may prohibit them under limited circumstances, including situations in which the insignia would jeopardize employee safety, damage products or machinery, exacerbate employee dissension, or compromise the company's public image established through appearance rules.

David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis, said employers need to make a "strong showing" that employees' union insignia "would cause some type of disruption or disorder in the workplace." 

No Singling Out Union Talk

Prohibiting employees from discussing union activities also can pose problems for employers, although they do have some leeway, legal experts noted.

In the BMW case, the board found it unlawful for a supervisor to tell employees not to talk about the union when they were allowed to talk about other nonwork issues, Pryzbylski noted. "That has been black letter law for years: If you allow discussion of nonwork-related issues, you can't then prohibit discussion about a union."

If BMW's rule applied to all conversations regardless of content, Bucking said, "the result would have been different, because employers generally can dictate what employees do when they are on the clock in work areas."

Employers can prohibit union solicitation during work hours and in work areas, based on the premise that workers should be focused on company business while on the job, Bucking added. "Otherwise it is very risky to ban or even restrict discussions based on their union content. It is even riskier if other noncompany discussions are permitted." 

Even if the employer broadly bans nonwork talk, enforcing a prohibition on union conversation may be difficult in practice, Kaban noted. "If the rule is enforced against union conversation, it will be easy for the union to come up with evidence of other conversations, even if there was no intention to single out union conversations," she explained.

"Content-based speech rules that single out union speech are problematic," Bucking said.

Dinah Wisenberg Brin is a freelance journalist and writer based in Philadelphia.

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