Display of BLM Insignia = Protected Concerted Activity

By Fiona W. Ong and J. Michael McGurie - Shawe Rosental LLP

February 23, 2024

This is true in the context of existing race discrimination concerns and complaints in this particular (non-union) workplace, according to the National Labor Relations Board in a case involving Home Depot. Notably, the Board asserted that, “Insofar as BLM has become a well-known abbreviation, and the phrase ‘Black Lives Matter,’ when displayed in the workplace, could reasonably be understood as referring to issues of racial equity and equality at work, it is arguable that displaying the phrase in the workplace, standing alone, would support a mutual aid or protection finding.” However, the Board stated that it was not deciding that issue here (and we add, “yet.”).

Regardless of an employer’s union or non-union status, Section 7 of the National Labor Relations Act protects employees’ rights to engage in concerted (i.e. group) activity for their mutual aid or protection (i.e. “protected concerted activity” or PCA), while Section 8 makes it unlawful for an employer to interfere with those rights. Here, Home Depot was charged with an unfair labor practice for violating an employee’s Section 7 rights when it prohibited the employee from wearing a Home Depot apron with a handwritten “BLM.”

In this case, an NLRB administrative law judge (ALJ) found that Home Depot had not violated the Act when it prohibited the employee from wearing the apron with the BLM marking, on the grounds that the employee had not discussed the BLM marking with other employees, and thus this action was not concerted. (Other ALJs have made similar findings, while at least one has held to the contrary, as discussed in our December 2023 E-Update). On appeal, however, the Board adamantly disagreed with the ALJ.

The Board noted that the employee and several co-workers had engaged in PCA when they discussed another co-worker’s racially discriminatory conduct towards customers, which impacted their employment because they stepped in to serve customers of color in order to protect them from the co-worker. They repeatedly raised these concerns to management over a period of months, without any apparent result. This was followed by several incidents of vandalism of a Black History Month display, which led to the employee, with the support of several co-workers, to send an email to management requesting a meeting for a “wide” discussion of racism.

In a meeting that day, managers questioned the BLM initials on the employee’s apron, which had been there for the past 5 months. The employee refused to remove the marking. The following day, in another meeting with district management, the employee discussed the co-worker’s discrimination and the vandalism. The employee told them that the BLM marking was a way to protest the continued workplace discrimination. The employee subsequently resigned after being told that they (for you grammar nerds, the employee uses they/them pronouns) could not return to work until the marking was removed.

The Board noted that several employees had BLM markings on their aprons around the same time as they engaged in the PCA of discussing and raising concerns about their co-worker’s racist conduct and the vandalism. The ALJ had found that the BLM display was not concerted because the employees had not discussed it with each other. However, the Board found that this display was PCA because it was a “logical outgrowth of prior group activity” that did not require a group consensus. Moreover, the employee specifically connected the BLM marking to supporting co-workers of color and protesting the continuing issues with workplace discrimination (which the Board found to be for the employees’ mutual aid and protection). And the employee began using the BLM marking around the same time that the group discussions about the co-worker’s racist conduct were occurring.

Despite its long and detailed analysis on this point (which we kindly boiled down for you to the few sentences above), the Board then went on to assert, however, that the relevant inquiry was not whether the BLM display was a logical outgrowth of other PCA at the time it was added, but whether it was a logical outgrowth of PCA at the time the employee was directed to remove it! And the Board concluded that, based on the employee’s linkage of the display to the continued issues of workplace discrimination, it was.

Now, as we have previously discussed in our November 2023 E-Update, an employer’s interference with an employee’s display of union or other protected insignia on their apparel is presumed to be unlawful unless the employer can demonstrate “special circumstances” to justify the interference. Special circumstances are found when the display jeopardizes employee safety, equipment or product safety, or unreasonably interferes with a public image that the employer has established as part of its business plan.

In this case, the Board found that there were no special circumstances that would justify the employer’s prohibition of the BLM marking. As to the public image argument, the Board noted that Home Depot “encourages employees to personalize their aprons by adding written messages, images, and other elements.” The Board rejected the contention that the BLM marking is controversial, noting that other permitted markings (e.g. LGBTQ+, Pan-Africa, sports teams, etc.) are also controversial – but also that the lawfulness of any display “does not turn on upon the pleasure or displeasure of an employer’s customers.”

Home Depot further argued that the BLM display posed a safety risk, citing instances in which customers of other retailers engaged in altercations with employees over BLM. But the Board stated that “there must be evidence of nonspeculative, imminent risks” to support a safety argument. Here, that did not exist, particularly since employees had been displaying BLM on their aprons for many months without incident.

The Board also summarily rejected the contention that the BLM ban was required to prevent employee dissension, (rather snarkily) stating, “Obviously, an employer cannot meet its special circumstances burden simply by showing that some employees disagree with a particular message. Few, if any, messages would be protected by the Act if that were the case.” Moreover, in this case, according to the Board, there was no evidence of such employee dissension. (The cited acts of workplace discrimination and vandalism apparently did not qualify).

The (somewhat) good news for employers here is that the Board has not (yet) adopted the position that the display of BLM in the workplace is automatically protected. At least in this case, there was some connection to existing issues of workplace discrimination. Although, realistically, in many cases employees would be able to point to their own concerns about general workplace discrimination, whether valid or not, to potentially extend protection to such displays. It will be illuminating to see what happens with the Whole Foods case discussed in our December 2023 E-Update, referenced above, since the ALJ in that case found that there were no existing concerns about workplace discrimination in determining that wearing BLM masks was not PCA…

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