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March 15, 2005

Even When You Win, You Lose

How Wal-Mart Court Decision Reflects the Pathetic State of Labor Law

The Eighth Circuit Court of Appeals ruled yesterday that Wal-Mart violated federal labor law when it banned an employee from wearing a pro-union t-shirt when he was off-duty. (See full decision here).

But the real story here is not that Wal-Mart has once again broken the law in violating its workers' rights. No, it's about how pathetic the law is even when workers partially win.

While the 8th Circuit upheld the right of employees to wear the t-shirt and invite fellow employees to a union meeting off-site, the court overruled an earlier NLRB decision and declared that an employee could be disciplined for asking a fellow worker to sign a card to request a union, a supposed violation of the company's "no solicitation" policy. (Yes, the 8th Circuit actually declared that the Bush NLRB was too pro-union, aacck.)

Note, the employee in this case didn't actually have a union card for the other employee to sign at the moment. The NLRB has already determined that actually having fellow employees sign a union card does violate any "no soliciation" policy. No, the eighth circuit declared that employers can discipline an employee for even talking to a fellow employee about a future goal of having them sign a card.

This is how one-sided union elections are in the workplace. Employers can enlist managers and supervisors in a full onslaught against any union, hold captive audience group meetings or pull them aside for individual meetings to discuss the evils of the union. But employees can't even talk about the goal of having a fellow employee sign a card to bring in a union. All they can do is suggest they attend a meeting after a long day's work shift where they can then hear more details.

Posted by Nathan at March 15, 2005 07:44 AM