Prohibition of BLM Apparel Did Not Violate the NLRA
An administrative law judge for the National Labor Relations Board rejected the NLRB General Counsel’s argument that Whole Foods’ dress code, under which apparel with “Black Lives Matter” messaging was prohibited, violated the National Labor Relations Act’s protections for workers engaged in concerted activity regarding their terms and conditions of employment (i.e. “protected concerted activity” or PCA).
In Whole Foods Markets, Inc., an NLRB Regional Director issued a complaint charging the employer with violating the Act by enforcing a dress code that prohibited the wearing of BLM messaging during working time, although it permitted the wearing of “a union-affiliated pin, button, or insignia for the purposes or supporting or opposing a labor organization or otherwise legally protected activity, provided that it is no larger than the [Employer-] provided name badge, non-distracting and otherwise adheres to the Dress Code.” Wearing BLM apparel resulted in some employees being sent home without pay to change or disciplined, up to discharge. While it was clear that this activity was concerted, the parties disputed whether the conduct was protected.
The ALJ found that the determinative question is whether “the employee conduct in question constituted an appeal to action that would directly impact their working conditions, either by requesting or imploring employer or governmental action on a grievance or concern, or by appealing for opposition to a proposed law or regulation that would have a direct and immediate impact on their working conditions or their lot as employees.” In this case, the BLM apparel did not. The employees contended that the apparel was intended to support their Black co-workers, to encourage the employer to address and root out racial inequality in the workplace, to discourage police presence in the stores (which made employees of color feel unsafe), to encourage the implementation of plans to deal with racist customers, and various other reasons. Rejecting this litany of reasons as a “helter-skelter, throw-mud-at-the-wall” attempt to establish a mutual aid and protection goal, the ALJ found these rationales “defective and unsupported by the factual record.” These rationales were proffered post-hoc well after the employees started wearing the BLM apparel and were told that it violated the dress code. In addition, the employees clearly wore the apparel in sympathy with the George Floyd demonstrators, “without any apparent or objectively discernable goal connected with their employment or working conditions”; it was only after the employer began enforcing the dress code that the employees tried to allege a nexus with their employment. The ALJ noted that there were no complaints or concerns about racial inequality in the workplace prior to the BLM apparel.
The ALJ also rejected the contention that violating the rule was permissible because employees were protesting a rule they considered invalid, noting that “Acting in concert with one another does not give employees cart[e] blanche to disobey an otherwise valid rule, nor makes such rule unenforceable.” The ALJ also found nothing to show that the rule was racist or enforced in a racially discriminatory manner. And the ALJ rejected the wildly overbroad argument that the BLM movement “is all about opposition to ‘systemic racism’” throughout all of society, with every employer “presumed to be engaged in it.”
Notably, while several other ALJs have come to similar conclusions in other cases, at least one has found to the contrary. This matter will likely be escalated to the Board itself for a decision, so employers should stay tuned for future developments on this issue.
