In another decision, the Board considered whether Walmart violated Section 8(a)(1) by maintaining two dress code policies that limit, but do not prohibit, the wearing of union insignia. The policies are content-neutral and explicitly grant employees the right to wear “small, non-distracting logos and graphics.” Under these policies, employees are allowed to display union insignia. Walmart applied the policy to prohibit employees from wearing a pro-union logo button as well as a button with the photograph of a deceased former employee. The Administrative Law Judge considering the charge brought by Walmart employees concluded that Walmart failed to show “special circumstances” for requiring that the logos and graphics be “small” and “non-distracting.”
On appeal to the National Labor Relations Board, the Board determined that the appropriate analytical framework for determining the lawfulness of Walmart’s logos and graphics policies is the Board’s test for facially neutral employer policies set forth in Boeing Co. (2017) 365 NLRB 154.
The Board applied the Boeing test and concluded that the policies were lawful so far as they applied to areas of Walmart stores where the employees encounter customers in the course of performing their respective job duties. The Board concluded that where the employer’s legitimate justifications for maintaining such policies – to enhance the customer shopping experience and to protect merchandise from theft – outweighed the adverse impact on the employees’ Section 7 rights. However, the Board also determined that Walmart’s justification for prohibiting employees from wearing such logos and graphics in areas away from the selling floor was much weaker. Accordingly, the Board concluded that Walmart violated Section 8(a)(1) by maintaining its policies in areas where employees are unlikely to encounter customers.
In reaching this conclusion, the Board analyzed the Supreme Court’s decision in Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793, which affirmed the Section 7 right of employees to wear union buttons and other insignia. The Board provided that, under the Republic Aviation test, where the infringement on Section 7 rights is incontrovertible, the employer must prove “special circumstances” justifying the infringement in order for it to be lawful. The Board stated that the “special circumstances” test is inherently a balancing of employees’ Section 7 rights and the employer’s legitimate business justifications and that finding of special circumstances means that the employer’s justifications are sufficiently weighty that the balance must tip in favor of permitting the infringement.
The Board then applied the Republic Aviation analytical framework to Walmart’s actions and justifications for its actions. The Board concluded that Walmart lawfully maintained its logos and graphics policies on the selling floors of its stores where employees are free to wear union insignia and messages subject to the size and appearance limitations. The Board found that Walmart had a legitimate business interest in making it easy for customers and loss prevention personnel to identify sales associates and that such interest supported finding a special circumstance to justify the prohibition on wearing large or distracting logos or graphics on the selling floor of Walmart stores.
However, the Board, applying the same framework, concluded that Walmart’s justifications for the policy were much weaker where the policy applied to areas where employees were unlikely to encounter customers or loss prevention personnel (e.g., loading docks and other “employees only” areas). The Board concluded that, in such areas, there was no need for customers to be able to easily identify sales staff, and that loss prevention personnel could assume that every individual was an employee. As such, the Board concluded that there was no special circumstance permitting the application of the policy to employees’ display of such logos or graphics in these areas.
In conclusion, the Board held that Walmart’s policies were not narrowly tailored to serve its legitimate business interest as to areas other than the selling floor. The Board held that Walmart’s policies were overly broad and violated Section 8(a)(1) to the extent that they are not limited to the selling floor.
Wal-Mart Stores, Inc. & the Org. United for Respect at Walmart (Our Walmart) (Dec. 16, 2019) 368 NLRB No. 146.