NLRB Rules Home Depot Worker Was Illegally Fired for Wearing Black Lives Matter Insignia
The National Labor Relations Board (NLRB) has ruled that Home Depot must reinstate Antonio Morales, an employee who resigned after being told that wearing a “Black Lives Matter” (BLM) insignia on Home Depot’s work apron violated company policy. The NLRB ruled that Morales’ actions were legally protected and that Home Depot violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by applying its dress code and apron policy to prohibit Morales from wearing the insignia and constructively discharging Morales for declining to remove it.
The ruling centers around Home Depot’s New Brighton, Minnesota, store. Morales began wearing the BLM insignia on the work apron in the fall of 2020, in violation of Home Depot’s dress code and apron policy’s ban on “displaying [on an apron] causes or political messages unrelated to workplace matters.” The violation was brought to Morales’ attention after Morales and several other employees complained to management about another employee’s alleged racially discriminatory conduct.
An administrative law judge had previously ruled that BLM insignia lacked “an objective, and sufficiently direct, relationship to terms and conditions of employment” and thus was not legally protected.
In reversing that decision, the NLRB found that Morales and other employees engaged in protected concerted activities in late 2020 when they complained of racial discrimination by a co-worker and about two incidents of vandalism of a Black History Month display. The Board further found that these complaints were for the purpose of mutual aid or protection. Since Morales and two other employees began wearing the BLM markings around the same time as these complaints, the wearing of the insignia was a “logical outgrowth” of the prior concerted activities and was displayed for the purpose of mutual aid or protection.
In a footnote, the Board’s decision declined General Counsel Jennifer Aburzzo’s request to hold that protests of workplace racial discrimination are “inherently concerted,” but left the issue open for a “future appropriate case.”
A dissenting opinion noted that the majority’s decision “open[s] up a Wild West frontier of concerted activity by individual employees, contrary to the obvious intent” of Board precedent.
It is also worth noting that this decision appears to conflict with a recent Fifth Circuit opinion holding that the NLRB overstepped its authority when it held that Tesla committed an unfair labor practice by enforcing its dress code and prohibiting employees from wearing pro-union clothing. We discussed the Fifth Circuit’s decision here. The Home Depot decision also follows the NLRB’s stated intention to extend its enforcement authority and to include discussion about racial discrimination as a basis for what constitutes protected concerted activity under Section 7 of the NLRA, which is further discussed here. In light of the NLRB’s current stance regarding purported conflicts between dress codes and protected concerted activity, employers should review their current policies with an eye toward compliance with the National Labor Relations Act.
Please contact Mallory Bland or any member of the Phelps Labor and Employment team if you have questions or need advice or guidance.
