New Mexico Law Review
Employers should be forbidden from offering antiunion insignia to their workers. This is not contrary to current labor rules that allow employers and their supervisors to wear insignia. The workers' rights would still be safeguarded because employees would remain free to buy or create their own antiunion insignia. The goal is to protect the right of workers to debate, campaign, and vote on unionization with no harm to legitimate needs for self expression.
Generally, workers are entitled to wear campaign insignia regardless of whether it supports or decries unionization. In this manner, workers can openly proclaim their beliefs and seek to influence their peers. However, the central issue arises when an employer distributes antiunion insignia to its workforce: the employer’s intrusion raises the possible specter of coercion. This obviously could undermine a worker's self-esteem, offend the commitment to industrial democracy, and permit the employer to paint a misleading picture of support for its antiunion position.
The National Labor Relations Board (“Board”) recognizes the issue but has wavered in its response yielding three lines of case authority. First, the “prohibitory” school, the Board is quick to recognize coercion when an employer distributes antiunion emblems. Second, the “permissive” school, gives employers broad latitude to distribute antiunion emblems. The third, “moderate” school, permits the employer to distribute antiunion emblems under certain conditions. Under these confusing and inadequate rules, the Board should consistently maintain a strict prohibition on employer distribution of antiunion insignia. Prohibiting employer distribution of antiunion insignia would merely help assure that workers are treated with the dignity they deserve. Workers can speak and act for themselves; they do not need management to stand between the buttons and freedom of choice.
John W. Teeter, Jr., Between the Buttons: Employer Distribution of Antiunion Insignia, 24 N.M. L. Rev. 69 (1994).