Below is my column in The Hill on the NLRB complaint against Whole Foods to force the company to allow workers to wear Black Lives Matter masks. The decision could have sweeping implications for business with uniform policies or bans on political advocacy in the workplace.
Here is the column:
Jeff Bezos has always told his staff to “start with the customer and work backward.” That could now change in a dispute between Amazon-owned Whole Foods and both Black Lives Matter and the National Labor Relations Board (NLRB). NLRB lawyers are arguing that Whole Foods must allow workers to wear “Black Lives Matter” masks at work, suggesting — in effect — that Bezos should start with the worker and work forward by allowing them to advocate for social change. The company is arguing that such a rule would constitute a violation of its own free speech rights.
Whole Foods is fighting for the right to maintain a workplace free of political slogans or demonstrations.
In her consolidated complaint against Whole Foods Market, Inc., San Francisco Regional Director Jill Coffman declared that the company is violating the rights of workers in 10 different states (Massachusetts, New Hampshire, Pennsylvania, New Jersey, Virginia, Maryland, Georgia, Washington, Indiana, and California). Coffman maintained that “through this complaint, we hope to enforce the Act and protect workers’ rights to speak up about these important issues.”
The problem is that there are speech interests on both sides.
The complaint also highlights an increasingly incomprehensible position on corporate speech for many on the left. Democratic politicians (including President Biden) have called for more censorship and interventions from social media corporations to protect customers from their own dangerous proclivities in reading material. When some of us have objected to such censorship, advocates have insisted that these private companies have every right to limit speech under the First Amendment. Of course, the First Amendment argument in support of corporate censorship ignores that the amendment is not the exclusive measure of free speech. These companies, and their government supporters, have created the largest system of censorship in history and its impact on political and social speech is enormous.
Given that support for corporate censorship, you would think that Whole Foods would have support in limiting speech for its actual workers. It’s not censoring its customers, but rather keeping the company neutral on political issues as customers shop for wild caught salmon or organic avocados.
Whole Foods, it seems, does not want to follow social media companies like Twitter and effectively write off whole groups within its customer base.
In claiming workers have the right “to speak up about these important issues,” the NLRB complaint does not grapple with the obvious problem: Can employees wear “Blue Lives Matter” or pro-life or pro-choice masks? How about “Proud Boy” or “MAGA” masks?
The NLRB complaint also does not state if workers can wear hats or other garments to proclaim political viewpoints. Some companies like McDonalds require actual uniforms. Would those uniforms now be subject to “important” messaging by workers — or do companies like Whole Foods have to require actual uniforms to prevent divisive messaging?
Finally, if workers can wear items espousing political viewpoints, can they demonstrate in other ways? Can they “say their piece” or “take a knee” at Starbucks before handing over a double Frappuccino? The complaint really does not say. It just wants BLM masks to be protected — but does not address the slippery slope that such a rule creates.
The fact is that many customers and companies may support the principle of black lives matter, but not the organization. Indeed, Whole Foods might object that BLM called upon customers to boycott Whole Foods and other “white-owned” businesses recently. Others object to the Marxist views of some of the BLM founders, the anti-police rhetoric, or apparent questioning the nuclear family.
The controversy raises obvious comparisons to the NFL controversy. While widely debated among fans and commentators, there was not a credible argument that players had a “right” to demonstrate at the workplace — any more than Whole Foods workers could periodically demonstrate in the middle of the store on any political issue.
The Supreme Court has pushed back on federal agencies trying to regulate speech. In 2017, in Matal v. Tam, eight of nine justices rejected the use of the Lanham Act’s “disparagement clause” to bar the trademarking of a name considered offensive. The question in the Whole Foods case is whether the government can require companies to allow speech deemed unacceptable or offensive.
Last February, U.S. District Judge Allison Burroughs dismissed such a challenge involving a Whole Foods in Cambridge, Mass., after employees claimed that the company was selectively enforcing its dress code by banning “Black Lives Matter” face masks. In her opinion, Burroughs found that this long-standing policy was not strictly enforced until recently, including instances where employees wore “LGBTQ+ messaging, National Rifle Association (“NRA”) messaging, the anarchist symbol, the phrase ‘Lock Him Up’ and other non-Whole Foods messaging,” including a SpongeBob SquarePants mask. The Court ruled that these allegations did not amount to race-based discrimination under Title VII and the law “does not protect free speech in a private workplace.”
The position of the NLRB would negate corporate policies requiring uniformity in appearance and apolitical workplace environments. Whole Foods wants customers to focus on produce, not politics. Employees can cover their cars with slogans and engage in any protests outside of work. However, Whole Foods has every right to dictate the appearance of its stores and staff.
There is an inescapable irony in targeting this corporation despite its $10 million in donations to social justice causes and groups. The “Whole Foods, Whole People, Whole Planet” slogan highlights the common ground with its clientele. Of course, what constitutes “good produce” is not without some political elements. Whole Foods, for example, markets its selection of food from indigenous groups and local farms. Those causes, however, are tied to how food is raised and where it comes from.
It is not surprising that the company wants to reinforce common interests in organic food rather than contemporary politics. It remains focused on produce-related causes.
What is surprising is that the NLRB would radically alter the right of companies to make such decisions in the appearance and messaging in the workplace.
That, of course, could change — the minute an NLRB lawyer shows up wearing a MAGA hat.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.