By Michael Z. Green
A Home Depot store violated labor law when it disciplined Antonio Morales, the National Labor Relations Board ruled on Feb. 21, 2024.
Morales, a Home Depot employee in the Minneapolis area, had drawn the letters BLM on a work apron and refused to remove them. BLM stands for the Black Lives Matter movement, which campaigns against violence and systemic racism aimed at Black people. Morales ultimately quit because of pressure to end the use of BLM messaging.
The NLRB has now ordered Home Depot to rehire Morales based on the legal right U.S. employees have to engage in “concerted activity” for the purpose of “mutual aid or protection.”
As a legal scholar who has studied issues of race in the workplace for more than 20 years, I believe the Home Depot decision establishes an important precedent for workers who express broad concerns about systemic racism.
This decision indicates that employees have a right to demonstrate their support for the Black Lives Matter movement on the job if they are seeking to improve their own working conditions with respect to racial discrimination. And this right persists even if the messaging arguably has political connotations that some workers or customers might disagree with.
Right to display slogans
The National Labor Relations Board is the federal agency that conducts elections when employees seek to be represented by a union. It also prosecutes and adjudicates complaints filed against employers and unions based upon unfair labor practices as defined by the National Labor Relations Act.
Workers have the right to display slogans related to working conditions when they’re on the job under Section 7 of that law, which was enacted in 1935. Section 7 “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.”
In this Home Depot case, the NLRB reviewed a preliminary decision issued in 2022 by Paul Bogas, an NLRB administrative law judge. Bogas found that Home Depot’s ban on manifestations of support for the Black Lives Matter movement didn’t violate labor law.
The NLRB disagreed with the decision by Bogas in a 3-1 decision that cited a 1978 Supreme Court precedent.
In that case, Eastex Inc. v. National Labor Relations Board, the court found that workers distributing materials related to their terms and conditions of employment are protected by Section 7 when there is a reasonable and direct connection to the advancement of mutual aid and protection in the workplace.
That ruling held that this protection exists even when political messages may be involved in the workers’ communications. “Moreover, what may be viewed as political in one context can be viewed quite differently in another,” the Supreme Court held.
At the Home Depot in question, Morales and other employees had previously discussed concerns about racial misconduct by a supervisor and two separate incidents of destroying a display of Black History Month materials the workers had created to celebrate Black culture.
Employees had a right to express their support for BLM messaging in the workplace because they had already objected to working conditions based upon racial concerns, the NLRB’s majority ruled.
One of the NLRB’s four members, Marvin Kaplan, based on his different view about the purpose of Morales’ display of the BLM messaging. Morales was expressing support for the Black Lives Matter movement’s “goal of combating police violence against Black individuals – not with improving terms and conditions of employment,” Kaplan wrote.
Discussing racial justice at work
Morales’ show of support for the Black Lives Matter movement in the workplace was hardly an outlier.
Many Black Americans began to speak out about racism and discrimination by discussing BLM in their workplaces amid the widespread protests that followed George Floyd’s murder by police officers on May 25, 2020, in Minneapolis.
A year after Floyd was killed, a poll found that 68% of Americans thought that employees “should be able to discuss racial justice issues at work.”
Employees who wanted to show their support for BLM at work have in recent years met resistance from other employers besides Home Depot, including the Publix and Fred Meyer supermarket chains.
Some companies have said their bans on workers displaying BLM insignia were intended to prevent disruptive responses by other workers and customers who may not agree with the movement’s message.
Mixed decisions
Legal decisions about this issue have been mixed so far.
A court found that a Pennsylvania government agency violated the First Amendment when it prohibited workers from wearing face masks emblazoned with BLM messaging during the COVID-19 pandemic.
But Whole Foods has prevailed against workers in similar cases. An NLRB administrative law judge found that its employees had worn BLM insignia merely as a political statement unrelated to their working conditions.
That preliminary decision is now in question after the NLRB’s final ruling about the same issue in the Home Depot dispute.
Whole Foods workers asserted in a separate legal challenge that their employer’s ban on wearing BLM insignia represented racial discrimination under federal law. In that case, the court found that the employees had failed to prove that the ban had a racial motivation.
Whole Foods was instead seeking to stop expression of a “politically charged” and “controversial message by employees in its stores,” according to the court.
Erin Clark/The Boston Globe via Getty Images
One interesting aspect of these cases is the apparent contradictions involved.
After Floyd’s death, many big companies proclaimed their commitment to fight racism and promised to do a better job of supporting diversity, equity and inclusion efforts.
Home Depot, for example, expressed its “anguish over the senseless killing of George Floyd” and “other unarmed Black men and women in our country.” The company explained how it had established worker programs “to facilitate internal town halls to share experiences and create better understanding.”
Amazon, which owns Whole Foods, made a similar statement, along with a pledge to donate US$10 million to “organizations that are working to bring about social justice and improve the lives of Black and African Americans.”
Possible aftermath
To be sure, this NLRB decision isn’t the final word on this issue, because Home Depot has filed an appeal.
Regardless of how the courts respond, the NLRB’s decision is historic. The labor panel has established that a worker’s support for Black Lives Matter in the workplace isn’t merely an expression of their political beliefs.
Michael Z. Green is Professor of Law and Director in the Workplace Law Program at Texas A&M University.
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Ed P says
BLM was and is a scam. It had little to do with racism. Black Lives Matter (the 3 words) were not congruent with the movement. Fooled a lot of people.
The Home Depot apron is a “uniform” of sorts and the employer provides. If the only markings are to be a name, an employee should comply.
If a supervisor is an issue, file complaints with HR and the states labor board. If the issue is not resolved, why would he want to work for anyone who offends him?
If we determined that corporal punishment doesn’t work with children or criminals, how can anyone force change? There are better alternatives to effect change.
endangered species says
it all began as police murdered black people and tried to cover it up. since then absolutely nothing has changed. If george floyds friends didnt video the murder that cop would still be policing and choking people to death with his knees.
So trump can run around telling lies about his election loss and attempt to overthrow the government, but a black man can’t support less discriminatory policing?
Haha change? the only change Americans will be getting is more fascism, more poor people, and more pollution( its profitable that way).
Ray W. says
If BLM is an organized political movement, then perhaps the term, “scam”, can apply to the issue. If BLM is a decentralized idea interpretable by individuals, can the phrase, “freedom of speech”, better apply?
I don’t have an answer to this amorphous issue. I suggest to FlaglerLive readers that Ed P doesn’t have an answer, much less the answer, either. The final sentence in his comment supports but does not conclusively prove my position. He argues that there are better alternatives to effectuate change, but this statement does not prove that an individual writing letters on an apron to express a possible non-political point is bad; it only proves that the act is, in his opinion, less good an approach than is his approach, which is to complain about workplace conditions to the employer and, if workplace conditions don’t improve, to quit.
The NLRB opinion reflects a split on the issue. It seems that if an act of expression solely is political speech unrelated to workplace conditions, then an employer can take action against it. If it is solely a personal expression in opposition to perceived discriminative workplace conditions already known to the employer, 1st Amendment (incorporated into a statue) issues might apply. In this arena, thus far, it seems apropos to argue that the law is what a judge says it is on the day that the judge says it, and one should never forget it.
Can an employee, acting alone, be right and wrong at the same time? More right than wrong? Less right than wrong? Can an employer applying a previously established corporate policy be right and wrong at the same time? Does a demarcation line exist for every case? Does it shift in every case? Oy, vey!
Ed P says
A clarification is in order, referencing the BLM movement as a scam may be a bit harsh. The movement started back in 2012-2013 around the time of Trayvon Martins shooting death.
It started out as a social media hash tag movement for a just cause but it eventually grew into a BUSINESS.
Only about 1/3 of funds donated ever went to the cause. Most of the money went to expenses such as exorbitant salaries and lifestyles. Sharon Osborne agrees with Kanye (Ye) West that it’s a scam. Sharon wants her $900,000 back! Sir Maejor Page the president of the Black Lives Matter of Greater Atlantic Inc is currently on trial for misappropriating funds to buy a home along with a lavish lifestyle. BLM founders bought a 6 million dollar California mansion.
As Ray W pointed out the BLM non profit has multiple tentacles and is not centralized, which many people are unaware that fact. I suggest that is by design, a smoke screen of sorts.plausible deniability.
Here’s my answer, my bullshit meter is bouncing like a Geiger counter at Chernobyl. My suggestion is find some other deserving charity that actually spends 90% of donations on your cause.
Ray W. says
While I don’t agree with everything Ed P writes in this comment thread, in that the author of the article focuses on the difference between an individual expressing himself for 1st Amendment reasons for non-political gain and a movement expressing itself for political gain, I have to admit that I dislike this Ed P far less than the old one. Maybe I have even a little liking for the old man. Thank you.
Again, I don’t really care whether I agree with Ed P, only that he is trying harder than he used to try. Far too often, certain FlaglerLive commenters engage in action without thought.
By definition, a Home Depot worker can be decentralized from an organized movement, so t0 focus on any centralized movement is just so much hot air, at least in the context of the NLRB ruling at issue. If an individual can act on his own volition, by definition, no one can “win” the centralized issue, because it didn’t even apply to individuals acting alone.
There are enough commenters in Flagler County who try to ride the coattails of the Republican Party. Doing so doesn’t make them Republican, nor does it make them conservative. They are, in many instances, just individuals out to achieve personal goals who might be willing to distort a message, any message, to win their point. After all, the conservative movement began when Parliament stood up to King James II after the king insisted that God had created him to rule Parlaiment. Parlaiment forced the king to flee to France. The first thing Parliament did was insist that the king had limited powers and Parlaiment had its limited powers. Separation of powers became one of the central planks of the conservative platform. The next thing Parliament did was pass a Bill of Rights. Thus, individual rights became central to the conservative movement. The next thing Parliament did was choose a Hanoverian royal prince to become England’s king, establishing King George I as the first of the House of Hanover to rule, but with his agreement that he would not violate Parlaiment’s authority. After all, men must be governed, which established the rule of law above all other rules. Any political movement that does not adhere to separation of powers, to individual rights, to the rule of law, is not conservative. It can be many other things, but it is not conservative. Conservatism cannot mean tyranny; it cannot mean all power in a centralized executive. Conservatism cannot mean attacks on freedom of speech and thought.
I repeatedly point out to FlaglerLive readers that when I was in college, the verb “to run” had 105 different meanings in the dictionary of the day; it has many more today. Like perhaps all languages, the English language has a seemingly immeasurable amount of fluidity, but the verb “to run” can never mean “to stop.” Conservatism, likewise, cannot mean authoritarianism. Dictators need not apply.
The idea that a Home Depot employee can complain about perceptions of workplace discrimination and later privately adopt the BLM lettering to express his discontent with his employer, without bringing politics into the dispute, and then find relief with the NLRB, is plausible under the law. That the idea can be completely separate from the ideas of a larger more centralized political movement is also plausible.
Samuel L. Bronkowitz says
Support for palestine should be next
jake says
Employers have the right to control dress codes for any number of reasons, including safety. This ruling will surely be overturned by appeal.
Sherry says
Ah. . . those who are “legends in their own minds’ think they know better than the courts. The biased diatribe simply goes on and on.
Laurel says
Oh, no, no, no, no, no! It is not reasonable to wear political/protest sayings or acronyms on company uniforms (or business attire) on company time. While you are at work, you represent your company. If just you, or you and your coworkers, have an issue with the company, take it up with the company. If that doesn’t work, take it up legally or find another job.
I remember when I worked for an Engineering firm, and a couple of employees, using a company car with the company logo, went straight from work to a bar, and were chewed out for it. We had a standing joke about where we should stop first, like a convenience store, then go to the bar. It wouldn’t be direct! Well, we didn’t do that for obvious reasons.
Should we open the door for this? What about Nazis? Should a person who wholeheartedly believes in the Nazi ideology, come to work with SS on their lapels, maybe throw in a swastika on the breast? How about a religious viewpoint that I, the shopper, will go to hell if I don’t agree with the employee’s beliefs? No thanks, when I do to Home Depot, I don’t want to see it. I’m there for the daisies, not the mind f**k.