On February 21, 2024, the National Labor Relations Board (NLRB) issued its decision in Home Depot, Inc., finding that an employer violated the National Labor Relations Act (NLRA) when management told an employee that they must remove the phrase “BLM” from their apron to continue working. “BLM” is the abbreviation of “Black Lives Matter.” At the start of his employment in October 2020, the employee and others approached management to complain of a supervisor’s discriminatory conduct. In February 2021, the employees raised complaints about the vandalism of the Black History Month materials they created for the store.
Employees are required to wear orange aprons as part of their uniform. The employee in question handwrote “BLM” on his apron sometime in October 2020. His manager first approached the subject of the “BLM” marking in February 2021. The manager instructed the employee that the initials were contrary to the dress code and violated a policy that prohibited “displaying causes or political messages related to workplace matters” on the aprons. The employee refused to remove the marking.
The next day, the employee met with the district manager and district human resources manager. They also reiterated that the employee could not work with the “BLM” initials on his apron because it was a violation of the dress code. During this conversation, they also discussed the employee’s prior complaints about the discriminatory actions by the supervisor and their frustration with the lack of response to the vandalism of the Black History Month displays. The employee explained that he believed keeping “BLM” on his apron was the best way to show his support for people of color and black associates.
While the employer did not fire the employee, they reminded him that he could not work with “BLM” on his apron. The employee resigned two days later, noting ongoing racial harassment and discrimination during his employment and explained the “injustices, micro-aggressions, and blatant racism experienced will not go un-noticed.”
The NLRB determined that the employee’s refusal to remove “BLM” from his apron constituted protected, concerted activity under Section 7 of the NLRA. “To be protected by Section 7, employee activities must be both ‘concerted’ and engaged in for the purpose of ‘mutual aid or protection.’”
Board precedent “establishes that an individual employee’s action is ‘concerted’ within the meaning of Section 7 if it is a ‘logical outgrowth’ of employees’ prior or ongoing protected concerted activity.” The NLRB explained that the relevant inquiry was whether the refusal to remove the “BLM” initials was a logical outgrowth in February, when he was instructed to remove the initials, not when he added them to his apron. His action was concerted because it was closely linked to the prior complaints and protest of a racially discriminatory working conditions. The Board also noted that even if it was not a logical outgrowth, it would find that the actions were concerted as an act of bringing “truly group complaints to the attention of management.”
The actions were also for mutual aid or protection when “they discussed their concerns about [the supervisor’s] racially discriminatory conduct toward employees of color, the vandalism of the Black History Month materials, and the manner in which the Respondent had addressed those matters, as well as when they brought those concerns to management’s attention.” Importantly, the Board will look at “the particular workplace context and the circumstances surrounding the display of a message may inform whether a message falls within the statutory ambit of mutual aid or protection.”
Finally, the employer could not demonstrate special circumstances justifying the prohibition of the “BLM” marking on the apron. The defense requires that an employer show its interest in banning insignia that outweighs an employee’s Section 7 rights. This rule must be narrowly tailored to the special circumstances justifying the rule. Home Depot failed to prove it had a special circumstance of public image, safety, or employee dissention.
Takeaways:
After the Tesla, Inc. decision in 2022 and Stericycle decision in August 2023, employers may want to review their uniform or dress code policies to ensure that they are narrowly drafted as to not infringe on employee Section 7 rights. In Tesla, the Board determined that the company violated the NLRA when it prohibited employees from wearing a black union t-shirt when the dress code required a black t-shirt with the Tesla logo on it. Tesla had allowed the employees to wear union buttons. On appeal, the Fifth Circuit denied enforcement of the decision. However, the NLRB reiterated that the proper analysis is under the U.S. Supreme Court decision in Republic Aviation Corp. v. NLRB, which allows employers to impose restrictions on insignia when there are special circumstances. The NLRB analyzed Home Depot under the same standard.
The Stericycle decision revised the standard for employee work rules and policies. Work rules and policies, like uniform and dress code policies, will be subject to increased scrutiny. Now, the General Counsel must show the work rule has a reasonable tendency to chill employees from exercising their Section 7 rights. Then, the burden shifts to the employer to prove the rule advances a legitimate business interest and it is advance the interest with a more narrowly tailored rule.
Employers may also consider retraining managers on how to handle employees in violation of these policies. Employers should reach out to legal counsel as we expect to see more cases focusing on violations handbook policies and rules.