A National Labor Relations Board Administrative Law Judge (ALJ) recently dismissed a complaint against Home Depot USA, Inc., in which the NLRB General Counsel (GC) alleged the company violated the National Labor Relations Act (NLRA) by prohibiting an employee from marking his uniform with “BLM” insignia. The ALJ’s June 10, 2022, decision is a temporary setback to the GC’s agenda to expand the scope of protections afforded by the NLRA.
The case arose at a Home Depot store in New Brighton, Minnesota. According to the ALJ’s decision, Home Depot maintains a dress code and “apron policy” that applies to all Home Depot stores nationwide. The policy includes a provision prohibiting employees from using their apron to “display causes or political messages unrelated to workplace matters.”
An employee (Morales) had marked his apron with “BLM,” in reference to Black Lives Matter. During his approximately six months of employment at the New Brighton store, Morales had complained to management about allegedly discriminatory actions by a co-worker. In February 2021, Morales complained to management about apparent vandalism of displays celebrating Black History Month. Store Manager Jason Bergeland met with Morales to discuss his concerns. During this meeting, Bergeland noticed that Morales’ apron had “BLM” written on it. Bergeland advised Morales that the message was impermissible under the dress code because it was seen as a social cause in violation of the dress code policy. Bergeland directed Morales to remove the apron; Morales refused. The next day, management met virtually with Morales and urged him to comply with the dress code, but Morales again refused. During this meeting, Morales purportedly explained that he was wearing the insignia to show his support for Black people and people of color. He also referenced the death of George Floyd and what had transpired afterwards. Management suggested some alternative ways Morales could show support for people of color. The following day, Morales resigned.
Morales Files an Unfair Labor Practice Charge
Shortly after resigning, Morales filed an unfair labor practice charge with Region 18 of the NLRB. Following an investigation by the Regional Office, the NLRB General Counsel issued a complaint. The GC did not allege that Home Depot’s nationwide dress code policy prohibiting employees from displaying “causes or political messages unrelated to workplace matters” violated the NLRA on its face. Instead, the GC argued that Home Depot violated the Act by classifying BLM/Black Lives Matter as a message falling within the scope of the prohibition. Among other forms of relief, the GC sought a nationwide order barring Home Depot from applying its dress code policy to BLM displays.
The ALJ rejected the GC’s claims. First, the ALJ noted under the NLRA, an employer may not interfere with, restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. In order for the GC to prove that prohibiting BLM messaging interferes with activity protected by Section 7, it must show both that the prohibited displays were “concerted” and engaged in by employees to improve terms and conditions of employment or otherwise improve their lot as employees. The GC failed to establish either of these elements. The ALJ noted that the GC attempted to avoid the need to show concerted activity by asserting a single employee’s BLM display should be deemed “inherently concerted,” because it is purportedly tantamount to opposing racial discrimination in all forums, including the workplace. The ALJ concluded that the GC’s argument was contrary to existing Board precedent concerning subjects which could be deemed inherently concerted.
Furthermore, the ALJ held that the GC failed to show that employees’ display of BLM messaging had a direct nexus to employee efforts to improve their terms and conditions of employment. Rather, the evidence presented showed that BLM messaging was primarily used and generally understood to address concerns outside the workplace. In reaching his decision, the ALJ distinguished previous cases in which the Board found employees’ actions and statements concerning political or regulatory matters to be protected under Section 7.
Finally, the ALJ concluded that Home Depot did not selectively or disparately enforce its dress code against Morales, nor did it violate the Act by enforcing its dress code against Morales’ display of BLM insignia.
As noted above, the ALJ’s ruling represents at least a temporary setback for the GC’s extremely broad interpretation of what constitutes protected concerted activity under the NLRA. However, the GC likely will appeal the decision to the Board, which may well accept the GC’s legal theory. Moreover, there is a separate case pending against Whole Foods Markets involving substantially similar legal issues. Nevertheless, the ALJ’s decision provides a useful and timely roadmap for evaluating what constitutes protected activity under the NLRA under current legal standards, as employees increasingly choose to express themselves at work concerning issues outside the workplace.