Friday, June 10, 2022: Home Depot Employee’s Display of Black Lives Matter/BLM on Work Apron Was Not a Protected Activity; Employer’s Enforcement of Dress Code Did Not Violate NLRB, ALJ Concludes
A retail employee’s display of Black Lives Matter/BLM (“BLM”) on his work apron was not an activity protected by Section 7 of the National Labor Relations Act (NLRA), USDOL Administrative Law Judge (ALJ) Paul Bogas ruled (Home Depot v. Morales). Therefore, the company enforcing its dress code policy as to that display did not violate Section 8(a)(1) of the Act.
The use of individual employee’s “they/them/their” pronouns would be confusing where concerted activity may be at issue
The ALJ explained in the first footnote of his decision that using the pronouns of the individual complainant/employee – “they/them/their” – would be “unacceptably confusing” because the case included disputes as to whether certain activities were “concerted” and reference to actions taken by the employee alone as actions taken by “they” or “them” could give the mistaken impression that those actions were undertaken by multiple persons. Accordingly, the ALJ stated he avoided using any pronouns to refer to the employee. All they/them/their pronouns in this decision are plural and should be understood to refer to more than one person.
The employee was given suggestions and an opportunity to come up with a way of expressing the desired sentiment without violating company policy – all in vain
In addition to pre-printed customer service messages, Home Depot employees were encouraged to personalize their required orange work aprons by adding their own written messages. However, the retailer’s dress code policy prohibits employees from using the apron – or any other attire – to “[display] causes or political messages unrelated to workplace matters.” While the policy did not explicitly state that “Black Lives Matter” and “BLM” were prohibited, the parties agreed that the company interpreted this policy to include those terms.
The complainant employee, who identified as Mexican, Hispanic, and a person of color, worked at a Minneapolis-Saint Paul area store, located “approximately six and a half miles from where George Floyd, an unarmed black man, was murdered on May 25, 2020, by one or more officers of the Minneapolis Police Department,” the ALJ pointed out, noting the civil unrest which occurred in the aftermath of that event. In an effort to save the worker’s employment, a district manager suggested other ways in which the employee could express support for diversity, people of color, and/or Black coworkers without violating the dress code, but the employee ultimately rejected those suggestions. The district manager repeatedly emphasized to the worker her view that the employee was a valuable asset to the company and offered an opportunity for the employee to consider an alternative that would allow for the desired expression of support without violating the dress code. Although agreeing to do so, the employee instead resigned. Providing a resignation letter, the employee referred to allegations of racial harassment and discrimination by a coworker, which were already under investigation by the company. No mention was made of the dress code.
Evidence of interference with concerted activity – an essential claim element – was entirely lacking
Arguing on behalf of the employee, the NLRB’s General Counsel’s office did not allege that the dress code violated the NLRA on its face (i.e., by the language contained in the policy), but rather, that the company ran afoul of the law by classifying BLM as a message that came under the code’s prohibition. Explaining that Section 8(a)(1) of the NLRA bars employers from interfering with employees’ Section 7 right to engage in “concerted activity” for their “mutual aid and protection,” the ALJ first noted that the General Counsel did not even attempt to show that the retailer prohibited displays that constituted concerted activity.
Instead, the General Counsel asserted that employees’ BLM displays are so vital to their efforts to improve terms and conditions of employment these displays should be added to the list of subjects that the National Labor Relations Board considers “inherently concerted.” The ALJ explained, however, that it is for the Board, not him, to decide whether to adopt that designation. As such, the judge found that the company’s enforcement of its dress code to prohibit BLM messages did not interfere with employees’ protected concerted activity in violation of Section 8(a)(1).
Even if there had been a showing of concerted activity, there was no indication of a direct connection to employee efforts to improve their employment terms and conditions
“[ ]BLM messaging neither originated as, nor was shown to be reasonably perceived as, an effort to address the working conditions of employees,” the ALJ observed. “Rather the record shows that the message was primarily used, and generally understood, to address the unjustified killings of Black individuals by law enforcement and vigilantes,” he continued. Acknowledging that the message was “a matter of profound societal importance,” the judge pointed out that it was “not directly relevant to the terms, conditions, or lot of Home Depot’s employees as employees (judge’s emphasis). While broad political and social justice messages may ultimately impact employment conditions, the BLM message at issue here did not relate to employees’ concerns in their capacity as employees and any connection to working conditions was simply too far afield and vague to satisfy the Section 7’s mutual aid or protection requirement.
Moreover, there was no indication that the complainant employee’s BLM display was any more directly related to working conditions than BLM displays in general. None of the witnesses, including the complainant, testified that his BLM display was related to the complaints about the coworker or any other incidents and conditions at the store. The fact that the display occurred at a store located near George Floyd’s murder site and close in time to the incident, buttressed the conclusion that the complaints were not related to the employee’s working conditions.
Management’s enforcement of the policy was not related to protected activities regarding racial discrimination and harassment complaints
The ALJ also rejected arguments that the company violated the NLRA at Section 8(a)(1) by selectively and disparately enforcing its dress code against the employee in retaliation for communications made to management and coworkers about a particular coworker’s biased and harassing actions to other employees and customers. Although the judge agreed that these actions were protected concerted activities, the evidence did not show that the dress code was selectively enforced against the complainant employee. Indeed, management investigated the complaints (ultimately terminating the coworker) and was otherwise supportive of the employee’s concerns. Moreover, store management testified as to examples of themselves and other managers within the company disciplining other employees for “BLM” messages, and also for “Blue Lives Matter” and “Thin Blue Line” messages for violating the dress code.
The district manager’s instruction to keep the conversation about employee’s complaints of racial harassment and break room vandalism confidential did not violate the NLRA because it was specifically related to an investigation
Finally, the ALJ ruled that the district manager’s instruction to the employee – to keep their discussion during a meeting about the employee’s complaints of racial harassment and vandalism of an employer-sanctioned Black History Month break room display – was meant to protect the integrity of the employer’s investigation. Accordingly, the instruction was “categorically lawful” under the NLRA’s Section 8(a)(1) because it was limited to the duration of the investigation.