The Board continued churning out precedent-setting decisions as year-end approached. Two days before the Christmas holiday, in Wal-Mart Stores, Inc., 368 NLRB No. 146 (December 16, 2019), the NLRB applied its new view on handbook rules—the Boeing test—to Wal-Mart’s policy that employees can only wear “small, non-distracting” union insignia in the workplace, holding that the policy did not run afoul of the Act in customer-facing areas of the store. It did make clear, however, that the policy was unlawful in “employee-only” zones.
The Board identified an important distinction between two types of employer policies regarding union buttons and insignia:
- Where an employer bans the wearing of all union buttons and insignia, the Board and Supreme Court has found that such rules are presumptively unlawful. The burden is then placed on the employer to justify the rule on account of “special circumstances”—a very narrow exception.
- Where an employer—as in Wal-Mart Stores, Inc.—instead allows certain buttons, but limits the size and/or appearance of union buttons and insignia that employees can wear, the Board has now held that the Boeing test for facially-neutral rules applies instead. …