Labor Judge OKs Company Restrictions on Political Clothing at Work

An NLRB judge dismissed a complaint filed against Home Depot whose ban on political messaging prevented employees from wearing BLM insignias, saying that BLM lacks a sufficient connection to the employees’ jobs. The case could provide the Labor Board an opportunity to expand protected employee activity to include social and political protests such as BLM messaging. 

NLRB General Counsel Jennifer Abruzzo alleged that by prohibiting employees from displaying “BLM” on their aprons, Home Depot was unlawfully interfering with workers’ rights to protest against racial harassment, which she argued is a form of protected concerted activity under federal labor law. 

An agency judge disagreed, ruling that BLM messaging lacked “an objective, and sufficiently direct, relationship to terms and conditions of employment” to be protected under federal labor law. “To the extent the message is being used for reasons beyond [protesting unlawful and prejudicial police activity against Black Americans], it operates as a political umbrella for societal concerns and relates to the workplace only in the sense that workplaces are part of society.” 

The case could be appealed to the Labor Board, which would then be expected to use it as a vehicle for expanding what is considered “protected concerted activity” under federal labor law to social and political protests, among other activities. 

Meanwhile, Starbucks is the target of a fresh round of unfair labor practice allegations based on comments its CEO, Howard Schultz, made in an interview with The New York Times earlier this week. In the interview, Schultz repeatedly referred to unions as a “third party” and said that “the customer experience will be significantly challenged and less [satisfactory] if a third party is integrated into our business,” along with responding “no” when asked if he could ever see embracing a union as part of his efforts to “reinvent the role and responsibility of our company.” 

Workers United subsequently filed an unfair labor practice charge against Starbucks, alleging Schultz’s comments were evidence that the company will not bargain in good faith with unionized employees, among other allegations. The interview and unfair labor practice allegation underscore both the increasing media coverage garnered by union efforts at high profile companies and the extent to which statements on unionization can quickly land a company in front of the NLRB. 

Outlook: It remains to be seen whether the Home Depot case or the latest round of allegations against Starbucks will make their way all the way up to the Labor Board. Regardless, companies can expect the Board to take an expansive view of employee activity that is protected under federal labor law, and should always exercise caution in statements made regarding ongoing union campaigns, whether to the public or to their own employees. 

We will be discussing this topic and other pressing labor law and policy issues at our virtual Future Workplace Policy Mid-Year Labor and Employment Conference next week, which will feature a keynote discussion with Board General Counsel Jennifer Abruzzo. More information and registration details can be found here.