NLRB Rules That Employees Have the Right, in Certain Circumstances, to Wear “Black Lives Matter” Slogan
The National Labor Relations Board (“NLRB” or “Board”) recently decided that Home Depot violated the National Labor Relations Act (NLRA) when it constructively discharged a customer-facing employee for refusing to remove the letters “BLM” (an acronym for “Black Lives Matter”) from the employee’s work attire.
Although significant, as described in more detail below, this decision does not mean that employers must always allow employees to display, at work, any slogan associated with a political or social cause. And for those unfamiliar with the NLRA, the law applies to virtually all private-sector non-supervisory employees, regardless of whether those employees are unionized.
Background
The case before the Board concerned Antonio Morales (they/them), who identified as Hispanic, Mexican, and a person of color. From the outset of their employment, a colleague subjected them, other coworkers, and customers to racially discriminatory behavior. Within the first month of their employment, and essentially every month thereafter, Morales and their coworkers complained to supervisors about the colleague’s conduct. Also within the first month of their employment, Morales wrote “BLM” on their work apron. At some point, two coworkers also began displaying BLM markings on their work attire.
About six months into their employment, during a discussion with supervisors about the discriminatory conduct occurring at the store, Morales’ supervisor stated that the BLM markings were contrary to the Home Depot dress code, which banned “displaying [on an apron] causes or political messages unrelated to workplace matters.” Morales explained that they wore the BLM markings to show “support for people of color or Black associates.” The supervisors instructed Morales to remove the BLM markings and informed them that they could not return to work until they did so. Morales refused to return to work without the markings on their apron, and resigned two days later.
NLRB Findings
To be protected by Section 7 of the NLRA, employee activities must be both “concerted” and engaged in for the purpose of “mutual aid or protection.”
Concerted Activity
An employee’s conduct is “concerted” when it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Among other things, it “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” Further, an individual employee’s action will be deemed “concerted” when it is a “logical outgrowth” of employees’ prior or ongoing protected concerted activity.
The Board applied this analysis to the facts and found that the Administrative Law Judge (“ALJ”) erred when he required proof that other employees authorized or endorsed Morales’ display of the BLM markings. Instead, because there had been a group complaint about racially discriminatory working conditions, and Home Depot began asking Morales to remove the BLM marking during a meeting in which Morales reiterated those complaints and articulated a connection between those complaints and their display of the BLM marking, the Board found that Morales’ insistence on wearing the BLM marking was a “logical outgrowth” of the group complaint. The Board specifically noted that, “the relevant inquiry is not whether the BLM marking was a logical outgrowth of prior protected concerted activity at the time Morales added it to their apron, but whether it was a logical outgrowth of that activity … when [Home Depot] first directed Morales to remove it and … thereafter constructively discharged them for refusing to do so.” (Emphasis added).
The Board also acknowledged the NLRB General Counsel’s position that protests of workplace racial discrimination are “inherently concerted,” as are protests seeking to improve wages, to obtain desirable work schedules, or to protect job security. Given the record before it, the Board found that it did not need to decide that issue in this case.
Mutual Aid or Protection
The ALJ who initially heard this case found that the BLM marking was not displayed for the purpose of mutual aid or protection because, “the BLM messaging originated, and is primarily used, to address the unjustified killings of Black individuals by law enforcement and vigilantes.” The Board, however, concluded that the origins or primary use of the BLM message would not dictate how the BLM marking could be used or understood in a particular workplace, and that in the case before it, there was a “direct relationship” between Morales’ wearing the BLM marking and their prior protests of racially discriminatory working conditions (which fall within the ambit of mutual aid or protection).
The Board also commented that insofar as “the phrase ‘Black Lives Matter,’ when displayed in the workplace, could reasonably be understood as referring to issues of racial equity and equality at work, it is arguable that displaying the phrase in the workplace, standing alone, would support a mutual aid or protection finding.” However, the Board noted that it did not need to decide that issue in this case.
Affirmative Defenses
After a determination that an employer has interfered with employees’ right to display insignias, the employer may seek to rebut the presumption of an NLRA violation by showing that its interference was justified by special circumstances. An example of a special circumstance is when the employer establishes a carefully cultivated public image that is so consistently preserved that the nonconforming insignia would jeopardize that image. Here, however, the record established that Home Depot not only permitted - but encouraged - employees to personalize their aprons by adding written messages or images. Accordingly, the Board found that Home Depot’s public image defense failed.
Home Depot also argued that the BLM markings posed a safety risk because customers might object to them and cited two altercations occurring at other retailers and a third incident occurring at a different Home Depot store. The Board found this evidence insufficient, noting that to support a “safety” justification, there must be evidence of nonspeculative, imminent risks, and that in this case several employees at Morales’ store wore the BLM markings for months without incident.
Take Aways
The full extent to which employers may prohibit employees from wearing BLM and similar markings (when the public image or safety defense is unavailable) is still somewhat up in the air, as the Board declined to find whether an employee displaying the BLM markings in the workplace inherently constituted concerted activity engaged in for the purpose of mutual aid or protection.
However, it is clear that employers who choose to prohibit employees from wearing or otherwise displaying markings associated with a political or social cause during work hours should maintain and consistently enforce policies that address the display of messages unrelated to workplace matters. Given that work rules are presumptively unlawful when they have a reasonable tendency to chill employees from exercising their rights, employers should seek legal advice when drafting such policies.
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