An Administrative Law Judge of the National Labor Relations Board has dismissed a complaint by former employees of Home Depot who claimed the company violated workers’ rights by refusing to let them wear “Black Lives Matter” on their uniform aprons.
The National Labor Relations Board (“NLRB”) issued the original Complaint and amended charges in 2021. The Complaint alleged that Home Depot, USA, Inc. violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by applying its dress code and apron policies prohibiting employees from “displaying causes or political messages unrelated to workplace matters” to bar displaying messages “Black Lives Matter” and/or “BLM.” The NLRB complaint further alleged that Home Depot threatened and retaliated against employees for wearing the BLM logo on their work aprons.
Administrative law Judge Paul Bogas ruled that the NLRB failed to show that Home Depot’s interpretation of its dress code policy violated Section 8(a)(1) by interfering with employees’ Section 7 NLRA right to engage in concerted activity for their mutual aid and protection.
What Activity does the NLRA Protect?
Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the NLRA. For example, an employer violates Section 8(a)(1) if it promulgates, maintains, or enforces work rules that reasonably tend to inhibit employees from exercising their rights under the NLRA.
Why Did the Judge Dismiss the Case?
To establish that prohibiting BLM displays interferes with concerted activity protected by Section 7, the General Counsel of the NLRB had to show that the BLM messages were “concerted” and engaged in by employees to “improve terms and conditions of employment or otherwise improve their lot as employees.” Activity is concerted if, based on the totality of the evidence, the employees’ activity “was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of employees.”
Judge Bogas found that the BLM messaging did not meet this standard and was not concerted activity. Specifically, Judge Bogas found that the message was primarily used to address the unjustified killings of Black individuals by law enforcement and vigilantes, stating: “[a] message about unjustified killings of Black men, while a matter of profound societal importance, is not directly relevant to the terms, conditions, or lot of Home Depot’s employees as employees.”
Significance to Employers
Many employers in non-union businesses mistakenly believe that the NLRA does not apply to their operations. While this is generally true, both union and non-union employees are protected by Section 7 of the NLRA and have the right to engage in concerted protected activity for the purpose of collective bargaining or other mutual aid or protection. This means that employees have the right to discuss their terms and conditions of employment. Employer policies that infringe on this right have been found to be unlawful. Employers, therefore, should routinely review their policies and ensure that they are narrowly tailored and do not interfere with their employees’ Section 7 rights.
As always, please let me know if I can help.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.