Kentucky Law Journal
The right for workers to wear union insignia without fear of retaliation in the workplace has been constricted, undermined, and jeopardized by judicial and National Labor Relations Board (“Board”) decisions. As a consequence, at least three problems arise: (1) litigation over this issue increases as the law becomes increasingly opaque; (2) workers are wrongfully denied the opportunity to proclaim their union sympathies; and (3) the Board and courts send an implicit message that the freedom to express union support is a second-class right that employers may override by offering a pretextual justification. This subordination of the right to wear union insignia must not continue.
As a matter of social policy, the Board and courts must not condone practices that unnecessarily undermine the ability of unions to garner and maintain support. By giving employers the ever-growing power to prohibit union symbols, the Board and courts are facilitating an ominous movement toward managerial absolutism in the workplace. Stripping workers of their right to wear union insignia also takes its toll on their individual dignity. This needless subjugation of individual autonomy can only fuel feelings of resentment and alienation in the workplace.
A new approach toward union symbols is in order. Employers rightfully concerned with keeping order can concentrate on removing actual hoodlums rather than silencing peaceful expression. Concerns for productivity and safety should be treated differently because in some instances union buttons could directly jeopardize an employer's product or the health of its employees. Even in these cases, however, the Board and courts must rigorously appraise employers' concerns and insist that justifications for bans be supported by clear and convincing evidence. If American workers are to receive the respect they deserve, providing adequate protection for the right to wear union insignia is a step in the right direction.
John W. Teeter, Jr., Banning the Buttons: Employer Interference with the Right to Wear Union Insignia in the Workplace, 80 Ky. L.J. 377 (1991–92).