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NLRB Finds That Wearing BLM Shirts Does Not Constitute Protected Activity
In the days and weeks that followed the death of George Floyd, beginning in early June and until sometime in August 2020, Whole Foods employees throughout the country started wearing Black Lives Matter (BLM) messaging, primarily on face masks, but also on buttons or pins, or printed on t-shirts or other clothing items. Soon after the employees started wearing BLM messaging, Whole Foods informed them that such messaging was a violation of Whole Foods’ dress code. Employees were generally given the option of removing the BLM messaging or clocking out and going home. Those who chose to go home incurred time and attendance or dress policy violations. In some cases, this led to employees’ discharge or resignation. Some employees sporadically continued to wear BLM messaging without incurring discipline, other than being instructed to remove the messaging.
In most cases, employees wearing BLM messaging were acting concertedly, since often these employees engaged in the conduct around the same time, often after consultation with one another or in support and solidarity with others doing the same.
The question presented to the National Labor Relations Board (NLRB) was whether the employees who donned BLM messaging while at work were engaged in protected activity within the meaning of Section 7 of the National Labor Relations Act (NLRA).
The Administrative Law Judge (ALJ) concluded that there was no dispute that wearing the BLM messaging was concerted—employees were wearing masks, pins or jewelry often after learning that employees in other stores were doing so, and in response to learning that employees were being told by Whole Foods that they could not do so.
The central issue in this case was whether the conduct was protected by Section 7 of the NLRA. The ALJ concluded that it was not. Section 7 of the Act protects the rights of employees to wear and distribute items such as buttons, pins, stickers, t-shirts, flyers, or other items displaying a message relating to terms and conditions of employment, unionization, and other protected matters. Here, the ALJ found that the collective decision to wear BLM messaging was in sympathy with the BLM demonstrations in the wake of Floyd’s murder. These actions were not related to workplace or working conditions, or to employees’ interests as employees.
The ALJ was not persuaded by expert testimony that discussed the long historical connection between civil rights movements, such as the BLM movement, and employment issues. This testimony did not establish a nexus connecting the employees’ display of BLM messaging to a goal related to their terms and conditions of employment.
The ALJ also considered Whole Foods’ dress codes. Whole Foods’ 2013-2020 dress code prohibited employees from displaying any visible slogan, message, logo, or advertising on their workplace attire. Prior to 2013, Whole Foods only prohibited messaging that was “printed” on the attire, thus allowing union pins, buttons, and other types of messaging attached to the clothing. The ALJ concluded that the removal of the word “printed” impliedly meant that employees could not wear Section 7 protected messaging, which the ALJ concluded is a violation of the NLRA.
In response to the ALJ’s findings, Whole Foods was required to stop enforcing dress codes that inform employees that they cannot wear shirts/tops without any visible slogan, message, logo, or advertising and must remove the language from its dress code that states this. The ALJ required Whole Foods to add the word “printed” back into their dress code.
Note: This topic has only been addressed by a handful of ALJ’s but this is a topic that will continue to come up. Here, there was a lack of nexus between BLM messaging and employees’ rights to unionize. Schools should keep in mind that overly strict dress codes that prohibit employees from engaging in protected activity could run afoul to the NLRA.
Whole Foods Markets, Inc., 2023 NLRB LEXIS 601 (N.L.R.B. December 20, 2023).