Employees have a right to express support for Black Lives Matter while they’re on the job, according to a historic labor board decision

The aftershocks of George Floyd’s death are still reverberating for Home Depot. Godofredo A. Vásquez-Pool/Getty Images

by Michael Z. Green, Texas A&M University

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.

People stand in front of a Whole Foods with painted signs depicting a woman in a Black Lives Matter face mask and another one with a Black person's face without a mask.
Whole Foods employees who were dismissed from their shift for wearing Black Lives Matter face masks conduct a protest in 2020.
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.The Conversation

Michael Z. Green, Professor of Law and Director, Workplace Law Program, Texas A&M University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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