The National Labor Relations Board (NLRB) has ruled that a Minnesota Home Depot Store broke the law by telling an employee to remove a “BLM” marking from their work apron. The NLRB has recently decided in Home Depot USA, Inc. and Antonio Morales Jr that conditioning continued employment upon removal of a BLM mark on its orange apron was an unfair labor practice finding, contrary to Home Depot’s argument, that no special circumstances were present to justify Home Depot’s action.
Board Finds that Facts Matter
Previously, we addressed the NLRB’s finding of an unfair labor practice against Tesla, Inc. for banning union insignia on employee apparel during a union drive. The finding stated that employees displaying union badges engaged in protected concerted activity under Section 7 of the National Labor Relations Act. In this decision, the NLRB overruled its previous decision in Wal-mart Stores, Inc. and reinstituted its former standard that an employer can only interfere with employee rights to display insignia, badges or buttons, in “special circumstances” that would justify interference. Under this standard, all such bans are presumptively unlawful, and employers have a heightened burden to demonstrate that their attempts to curtail employee rights under Section 7 are justified.
Case Details
The facts are important to the Board’s determination. Morales was employed by Home Depot on the retail floor. Shortly after he was hired in late Summer, he wrote BLM on his orange apron. Home Depot’s dress code provided that the apron:
“Is not an appropriate place to promote or display religious beliefs, causes or political messages unrelated to workplace matters.”
No one in management objected to the BLM mark. Shortly thereafter, Morales and other employees who had observed another floor department employee exhibit racial bias towards customers and other employees of color, complained to supervisors and management. Although the employee was disciplined on several occasions, the conduct continued for several months.
With the advent of Black History Month in February, management asked Morales and others to prepare appropriate materials, which they hung in the store. An unidentified person tore them down and destroyed them. Morales put them back up, and again, an unknown person removed them. The assistant store manager (ASM) issued an email stating he would replace the materials and further stated in bold “Intolerance and discrimination will not be tolerated.” Morales and other employees told the ASM that was an insufficient response and expressed the need for a storewide conversation on racism “so that people of color feel safe in the store.” The ASM disagreed stating the email would suffice. Morales then sent a reply email to management asking for an investigation, which led to an in-person discussion. In the discussion, management admitted failure in ending the discriminatory conduct but admonished Morales for the email and asked that the employees leave this issue to management to address. Management then told Morales to remove the BLM mark he had written on his orange apron – six months ago. (Other employees also wrote BLM on their aprons and were not admonished.)
After a lengthy discussion, including management’s belief that allowing a political mark, such as BLM, would lead to requests to post swastikas on aprons, and Morales response in opposition, management informed Morales that he could not continue to work at Home Depot unless he removed the BLM mark from his apron. Morales submitted a written resignation.
Mutual Aid or Protection of Employees
The Board found that the employees’ activities in protesting racial injustice at work was a protected concerted activity under the Act and that Home Depot, in directing Morales to remove the BLM mark from his apron, committed an unfair labor practice in violation of section 8(a)(1). The Board emphasized that the core component of Section 7 rights – the mutual aid or protection of employees – as satisfied as the activity furthered the goal of improving their “lot as employees.”
The Board held that Home Depot committed an unfair labor practice when it:
- Directed Morales to remove the BLM mark from his apron.
- Constructively discharged him by conditioning future employment on forfeiting his right to wear the BLM mark.
- Applied dress code to prohibit the BLM mark.
Home Depot’s Defenses Not Sufficient to Avoid Unfair Labor Practice on the Facts.
Among other noteworthy defenses, which met with short shrift by the Board, Home Depot argued that:
- Morales was not engaged in concerted activity as he acted alone, without authorization or endorsement of other employees, in deciding to mark his apron with the BLM mark, and
- Home Depot was justified by special circumstances.
The Board disagreed.
Understanding the Board’s Decision on Concerted Activities and Home Depot’s Dress Code Dispute
What is a Concerted Activity?
The Board found that Morales was in fact engaged in “concerted” activity when he marked his apron, noting that concerted activity can include the activities of individual employees if it is a “logical outgrowth” of prior or ongoing concerted activity with or by other employees. The Board found “logical outgrowth” when determining that the protected concerted originated from group complaints about bias against people of color. The Board found that Morales did not need to show that the other employees authorized or endorsed him marking up his apron. Despite initially marking his apron six months prior, Morales was asked to remove it during a meeting addressing racism in the workplace. The request came at a time when the marking was displayed for the purpose of mutual aid and protection of employees and customers against race-based treatment. This action was taken because Home Depot had not addressed the workplace issue, allowing it to fester. Further, the Board pointed out that Morales writing BLM on his apron had commenced around the same time as the initial employee complaints regarding racism toward customers. Although the Board found the dress code not facially unlawful, it did find Home Depot’s application of it unlawful.
Special Circumstances Argument
The Board found that Home Depot could not prove there were any special circumstances justifying the prohibition against the BLM mark. Noting that the allowance for special circumstances was very narrow, the Board identified those that may be considered, which include:
“Safety, damage to machinery or products, exacerbate employee dissension, or unreasonable interference with a public image established as part of a business plan through appearance rules for its employees.”
Taking the public image argument first, the Board stated that Home Depot must show “a carefully cultivated public image that is so consistently preserved that the non-conforming symbol, button, or other insignia would jeopardize the image.” Although the orange apron is undoubtedly part of the Home Depot brand and image, having been registered as a federal trademark, the evidence indicated that Home Depot allows and encourages employees to personalize their aprons by adding written messages and images, like the names and logos of favorite sports teams, holiday symbols and flags, including LGBTQ pride symbols. Writing BLM on one’s apron did not appear to the Board a flagrant violation of that practice.
Although special circumstances may include an employer’s desire to remain neutral on a political issue, this desire – and practice – must be substantiated. That was not done here. In this case, there was no indication that Home Depot had taken a stance on BLM. Additionally, given the variety of messages on aprons, including some of which were newsworthy or even controversial in some circles, the Board felt that a customer is not likely to perceive the BLM mark to signal a company-wide position.
Safety and Dissension Concerns
Home Depot’s arguments that special circumstances existed because the BLM mark jeopardized employee safety and fueled dissension did not bode well either. Home Depot offered that an employee displaying the BLM mark could be assaulted by customers who may be offended by the mark, therefore jeopardizing the safety of its employees, but the Board found this risk to be speculative and not imminent. Additionally, the Board disagreed that there was any risk of exacerbating employee dissension, which had so far involved only possible disagreements that were insufficient to support a special circumstance. Even in the event of elevated or abusive dissension, the Board found that the employer must first explore other methods of deflating the dissension before eliminating section 7 rights.
Voluntary Resignation
Lastly, Home Depot argued that it should not be liable to Morales because he voluntarily resigned. The Board found that Morales’ resignation, prompted by Home Depot’s requirement to submit to an unlawful directive to maintain his employment, constituted discharge.
Importantly, the Board not only ordered reinstatement of Morales with all back pay and benefits restored, but also further applied its “make whole remedy.” The Board ordered that Home Depot pay Morales for all lost benefits suffered as a result of the unlawful constructive discharge, including compensation for any adverse tax consequences for receiving a lump sum back pay award and expenses incurred in seeking temporary employment.
Where Home Depot Went Wrong
Employers that are considering limiting employees from wearing certain insignia or messaging on their apparel should heed the Board’s definition of “special circumstance” and be ready to provide evidence to justify their decisions. Home Depot’s missteps include:
- Failed to act consistently with its dress code and address violations timely.
- Failed to treat all employees similarly for violations of the dress code.
- Delayed response to the dress code violation until the employee was involved in protected concerted activity.
- Failed to institute a sufficient “public image” campaign to support a special circumstance justification.
- Failed to act consistent with the campaign by allowing other marks on the aprons.
- Failed to take efforts to actually market the “public image” consistently and pervasively.
Employers Can Learn from Home Depot
Employers can learn valuable lessons from this case and integrate them into the workplace. Below are our recommendations:
- Draft a dress code tailored to that public image – do NOT rely on generic dress code polices.
- Monitor all apparel to assure compliance with policy – do NOT pick and choose the battles – confront all of them.
- Take immediate action for any violations – do NOT wait until a union drive or until employees are engaged in concerted activity.
- If the employer wishes to preclude certain insignia due to conflict with its position on public issues, make sure the company’s position on these issues is actually public.
If you are considering a ban on insignia or badges in your dress code or you are faced with a complaint by the NLRB, KJK is here to help you work through it. Please contact Maribeth Meluch (614.427.5747; MM@kjk.com) or one of our other partners in our Labor and Employment Practice Group.