In Whole Foods Market, Inc., Case 01-CA-26183, JD(SF)-39-23 (Dec. 20, 2023), National Labor Relations Board (NLRB) Administrative Law Judge Ariel Sotolongo held that Whole Foods did not violate federal law by enforcing its dress code which resulted in banning employees from wearing certain apparel supportive of the Black Lives Matter (BLM) movement. The NLRB’s General Counsel had argued that the BLM movement’s opposition to systemic racism includes opposition to racial discrimination in the workplace, and therefore the Whole Foods employees’ apparel supporting BLM was a form of activity protected by the National Labor Relations Act (NLRA or the Act). The ALJ rejected this argument and held that the General Counsel’s evidence failed to establish a nexus between the BLM apparel worn by employees and “a goal related to their terms and conditions of employment or their lot as employees—a nexus that is necessary to bring such activity within the ‘mutual aid and protection’ requirement under Section 7 [of the Act].” The evidence did not establish that the “employees’ concerted action of displaying BLM messaging was related to workplace or working conditions, or to their interests as employees,” as opposed to broader political or social concerns which are not protected by the NLRA.  

In reaching this conclusion, ALJ Sotolongo joined two other NLRB ALJs who have also found that displaying BLM messaging at work is not protected activity under the NLRA, in SFR, Inc., Case 10-CA- 268413, JD-16--22, March 21, 2022 (Judge Amchan), and in Home Depot, Case 18–CA–273796, JD-34–22, June 10, 2022 (Judge Bogas).  The opposite conclusion was reached by one other ALJ in Fred Meyers Stores, Inc., Case 19–CA–272795, JD (SF)-12–23, May 3, 2023 (Judge Anzalone).  The three prior ALJ decisions were appealed and are already pending before the Board, and it is likely ALJ Sotolongo’s decision will be appealed as well. Decisions by ALJs may be appealed to the Board, and are not binding precedent for anyone other than the parties involved in the case.

Thus, employers continue to wait for a ruling by the Board, which will be binding precedent nationally, as to whether support for BLM in the workplace is entitled to the protection of the Act. One should not assume that the prevailing view among the ALJs who have heard these cases is indicative of how the Board might rule. This Board has been aggressive in expanding employee rights under the Act and the General Counsel has been outspoken in her position that the Act protects BLM messages. Until the Board rules, employers are advised to consult with counsel before taking action given the unsettled state of the law in this area.