NLRB Finds BLM On Work Apron Protected And Employer’s Dress Code Rule Unlawful

Yesterday, the National Labor Relations Board (“NLRB” or “Board”) issued a decision finding that The Home Depot violated the National Labor Relations Act (“NLRA” or “Act”) when it applied its dress code policy and directed an employee to remove a handwritten BLM marking on their work apron. The Board determined that the employee engaged in protected concerted activity because this employee and others had objected to racial discrimination in their workplace. This case is an example of how non-unionized employers can face liability under the NLRA as well as how broadly the current Board is applying the law. 

All employees have a right under the NLRA to engage in “concerted activities” for the purpose of “mutual aid or protection” – whether or not they are represented by a union. This means that when two or more employees join together seeking to improve their terms and conditions of employment, their behavior is likely protected by the Act. Behavior may also be “concerted” when it is engaged in by one employee with, or on the authority of, other employees. As we have previously discussed, the Board’s current General Counsel has an extremely expansive view of protected concerted activity which the Board applied in yesterday’s decision. 

In this case, a group of employees believed another employee was discriminating against customers and employees of color. They made numerous complaints to supervisors and managers about the employee. The Home Depot addressed the employee’s behavior through counseling and discipline, but the complaining employees were unaware of the Company’s actions. 

When materials displayed for Black History Month were twice vandalized, the employees did not agree with their manager’s response. One employee pushed for a storewide discussion on race via an email. When meeting about this employee’s email, the store manager noticed the BLM initials the employee had handwritten onto their work apron. The manager directed the employee to remove the display because the dress code policy prohibited displaying “causes or political messaging unrelated to workplace matters” on work aprons. The employee refused to remove the BLM marking and eventually resigned. 

The Board determined that the employee’s BLM display and refusal to remove it was protected concerted activity because it was a “logical outgrowth” of the employees’ complaints about racial discrimination. The Board also applied its new dress code rule for union insignia and found that the employer’s refusal to allow the employee to work until the marking was removed from their apron was presumptively unlawful. Because the employer encouraged employees to personalize their aprons, the Board rejected The Home Depot’s argument that a ban on BLM markings interfered with its public image. The Board ultimately determined that The Home Depot’s unlawful conduct in demanding the removal of the BLM marking caused the employee to be constructively discharged. 

Board Member Kaplan dissented, in part, from the decision. He argued that the employee’s display of BLM on their work apron was an individual (not concerted) act and was not a logical outgrowth of protected conduct. Moreover, he argued that a reasonable person would conclude the BLM marking was in support of the then-ongoing movement that grew from the death of George Floyd within close vicinity of the store in which the employee worked, pointing out that other employees at the store placed BLM on their aprons after Floyd’s death. Member Kaplan also rejected the Board’s willingness to find protected activity in advancing social or political issues and wrote that the Act should only protect employees seeking to improve their lot as employees, not those seeking to address wrongs to non-employees. 

This messy and complicated case demonstrates the impossible position in which employers find themselves under the current political makeup of the Board. While this employer tried to appropriately respond to the employees’ complaints and concerns, it also sought to enforce its policies in a reasonable and rationale way. Unfortunately, under the Biden Board, employers find themselves between a rock and a hard place. 

The takeaway? First, as always, all employers (whether unionized or not) need to pay attention to the NLRA in evaluating employee conduct. Consideration of whether an employee could be engaged in protected concerted activity under the Act is always necessary. Second, employers cannot rely on the Board to be reasonable. If there is a way to find conduct protected or a rule unlawful, this Board will find it. As such, employers must proceed carefully and with due consideration for the risk of an NLRB charge. 

KZA attorneys are well versed in the NLRA and the Board’s ever-changing standards. We can assist you in evaluating employee conduct and workplace rules in this difficult area. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.