NLRB/Black Lives Matter Redux

In 2020, I wrote a client alert describing the best practices in managing personnel when approaching the intersection between the National Labor Relations Act (NLRA) and when social issues seep into the workplace. Specifically, my article described a Philadelphia grocery store’s impulsive response to employees wearing #BLM shirts, masks and pins. While the store saw its reaction as mere compliance with a dress code, they didn’t count on protests and negative media attention. I ultimately warned employers in that article that strict adherence to a work rule without accounting for the need to create safe and socially-conscious workplaces for all employees might damage them in the long run. Recently, an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) has analyzed the issue and clarified – for now – under what circumstances an employer can ban certain workplace uniform accoutrement.

In 2020 and 2021, Home Depot USA, Inc. enforced a rule at its stores nationwide that prohibited the display of political messages on uniforms and orange aprons. The NLRB filed a Complaint against Home Depot alleging that applying the dress code policy to statements such as “Black Lives Matter” and “BLM” would interfere with the right guaranteed by the NLRA to protest, in this case to protest against racial discrimination and harassment. In a June 10, 2022 decision, ALJ Paul Borgas recognized that  #BLM messaging “originated, and is primarily used, to address the unjustified killings of Black individuals by law enforcement and vigilantes.” Nevertheless, to be protected activity, the NLRA requires some showing of a nexis between the protest and work.  In a very detailed opinion, ALJ Borgas determined that the NLRB failed to provide evidence that the protesters were engaged in a concerted activity that related to any term or condition of employment.  He added, “(T)o the extent the message is being used for reasons beyond that, it operates as a political umbrella for societal concerns and relates to the workplace only in the sense that workplaces are part of society.”  Lest one think that Judge Borgas is overly friendly to employers, keep in mind that in 2018 he ruled that a worker’s profanity-laced tirade aimed at a manager was in the context of airing workplace grievances and therefore protected by the NLRA.

There are many facets to the Home Depot decision, and it’s impossible to provide employers with a checklist of what is or is not work related when it comes to apparel, buttons and the like. In his analysis, Judge Borgas dealt with issues such as the history and activities of the #BLM movement and whether Home Depot communicated the prohibition and applied the rule consistently. Notably, the store also prohibited the wearing of messages such as “Blue Lives Matter” or “Thin Blue Line” and this factored into the decision.

So, where do we go from here? The case has already been sent to the full membership of the NLRB, where a Biden-dominated NLRB will decide. Then, it is likely to be appealed further. For now, employers should pause before implementing prohibitions on messaging on uniforms and call their counsel to assess the risks.

For more information about issues that may arise before the NLRB, please contact John Baker (bakerj@whiteandwilliams; 610.782.4913) or a member of our Labor and Employment Group.

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