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?
This week, American Airlines issued a public apology for a pilot who had a “Let’s Go Brandon” sticker on his personal luggage. If the pilot had a BLM sticker, would the NLRB consider it protected?
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.
One could make a very strong argument that the U.S. Supreme Court’s interpretation of the “Supremacy Clause” [Article VI of the U.S. Constitution] is somewhat flawed. The letter & spirit of the Supremacy Clause makes the U.S. Constitution – not the federal agencies – the “supreme law of the land” and local, state & federal law subordinate to the U.S. Constitution. It would only grant the federal government jurisdiction if they were NOT violating constitutional rights.
It seems the accurate interpretation of Article VI of the U.S. Constitution should mandate that any official has a duty to protect constitutional rights, of all persons within their jurisdiction. If any official is derelict in their constitutional duty, another level of government or another branch could check & balance that dereliction of duty.
For example: during the Jim Crow era, if a local sheriff was not protecting the constitutional rights of African-Americans or Jewish-Americans, it was perfectly proper for state or federal officials to check & balance that local official. Especially since the federal government embraced torture and war crimes after 9/11 (no longer a protector of rights), it should allow state or local officials to check & balance federal officials if they are violating a person’s constitutional rights. That view actually matches the wording of Article VI.
Never liked the “Citizens United” ruling but it’s current law. Under this ruling Whole Foods has First Amendment rights that can’t be infringed upon by any government agency. Even if Citizens United were overturned (as it should be) employees of Whole Foods don’t have First Amendment rights, if censored by a non-government organization.
Anything that puts a woke company out of business is fine by me. Let’ em wear Stalin University masks for all I care. I love it when the enemy wears a uniform. Easier to see who to boycott. Only folks who enjoy overpriced, fru-fru organic groceries are really affected and likely not for long as demand drops and prices increase.
As someone else said, I love it when the Revolution eats their own. Kinda like when the Monster turns on its creator. Sometimes you gots to let the idiots devolve to their natural, inevitable, predictable and poetically just conclusion. Makes ’em humble or at least not so arrogant. Go square-head, Go!
The NLRB position is a stretch. It’s not really surprising, however, in the context of the current administration. Even the SEC seems to be affected by the focus of the current administration. Hopefully, this will be an easy win for Whole Foods. The Whole Foods enterprise should be troubled by the image of the frog in the bag of lettuce that we saw on TV last week. Margins are small in the grocery business and market participants need to develop a competitive strategy.
We have already dealt with this issue…..our blue collar grocery store chain had a policy about the wearing of all things political.
This happened at their store right outside of Cherry Point Marine Corps Air Station in Havelock, NC.
It did not gain Food Lion any new customers I can assure you.
https://www.breitbart.com/politics/2020/09/03/air-force-veteran-quits-job-claims-food-lion-banned-usa-flag-mask/
@S. Meyer
Didn’t Comrade Lenin say, you cannot make an omelet without breaking eggs? Don’t worry, they see us as ideological enemies and would be justified in whatever is done.
antonio
Lenin broke a lot of eggs but never produced the omelet.
@anonymous
I am a bit disappointed at your response. As a morally superior, erudite s@@tlib, I was expecting an explanation of why BLM masks are allowable (even necessary) in a workplace to advance “social justice” but a Let’s Go Brandon mask is not. Surely you can come up with an explanation. BUt if you are like most leftists, they never debate just shriek and name call.
antonio
@upstatefarmer
if logic applied I would agree but see my post above. It isn’t an even playing field.
antonio
Those advocates seeking Social Justice in a Free Democratic country can only achieve their ends by killing off those that disagree.
Change one letter. BWM. Black Wives Matter.
But how many African Americans have black skin? Mostly brown or tan or lightly tan.
This is an easy call. Does it advance “social justice” or it does it perpetuate the system of “white supremacy”? All right thinking progressives know that BLM is a sacred, holy institution so wearing a BLM mask would advance the former. But of course an employee wearing a “Let’s Go Brandon” mask, would advance the latter and should be banned. And if some irate customer assaults the latter employee, it would be excusable because it’s ok to punch a “nazi”.
Just waiting for some erudite s@@tlib to write something in an attempt to explain the above.
I WANT A DIVORCE, let them create their “woke” utopia and make them live with the actual results.
antonio
,
I hope the NLRB wins. I want to get a job where I I can wear my “Stop the Steal” mask.
If by some chance NLRB were to “win” this complaint, then it goes to reason that an employee can wear a Blue Lives Matter mask.
It cannot be one way and not the other.
When employees in the workplace engage in political speech with customers, they speak for the company. This is forced speech for the business owners.
Forcing Whole Foods to allow employees to wear BLM garb while at work compels WF to promote a political movement that supports criminals, is bigoted against cops, racist against whites and Asians, anti Semitic, and responsible for riots that gripped the country for a year. They have promoted the false narrative, completely contrary to facts, that the police are murdering black people in large numbers every year.
Whole Foods may gain some customers, but they will lose others. So it’s not only compelled speech for a business, but a compulsion to lose a customer base.
If I see BLM infest Whole Foods, I’ll never shop there again. There are companies who are gleeful about losing customers like me, who judge people based on their character and who support police…and facts. If they have enough customers who support them, they’ll do fine. If not, they go out of business.
Amazon is already an issue for me, because they keep deleting the pages of self published authors, and they are slow to respond to rampant piracy of published works.
If Amazon and Whole Foods go full BLM, I’m done. No more smiley boxes.
“If Amazon and Whole Foods go full BLM, I’m done. No more smiley boxes.”
If one believes that a person has no voice, except if part of the elite or billionaire class, then one has to look at Amazon as a profit machine and the billionaire as a person who could subvert the nation’s own interests for his own gains.
If the billionaires and elites call for shutdowns that discriminate against smaller businesses (i.e., not permitted to sell things like the big box stores), then the smaller businesses go out of business and companies like Amazon flood the market replacing them. Such regulations were passed by the elites and the billionaires. Amazon profited at the expense of millions of workers and owners of small businesses, many of which lost their jobs and companies.
Karen says:
“If Amazon and Whole Foods go full BLM, I’m done. No more smiley boxes.”
Good for you. When good speech fails, by all means open our social toolbox to boycott bad companies, shun hateful people and shame intolerable speech.
Why don’t these companies grow a backbone? Why don’t they tell those spoiled brats: “You want to protest, while at work, while I’m paying you? Fine. You can protest — while standing in the unemployment line.
Some of the slippery slope arguments were touched on, but not my favorite. This is the one I never saw concerning the NFL kneeling idiocy.
What about the commandeering of others property to spout you political message? Whole Foods own their property. An employee has no right to use that property to advance there own agenda. Could an employee use warehouse space in the off hours to run a side business?. NO. Advocate for whatever cause your heat desires. But, you do not have the right to hijack another persons property to advance your view.
How about this? Could a Whole Foods truck driver put a 4X8ft message on the truck they are driving?
I’m one who supports the concept of Black Lives Matter and opposes the organization that took this important phrase as their name so they can, in my opinion, raise funds, gain legitimacy and shield themselves from criticism. If I ever need to comment on the topic I use “All Black Lives Matter.”
I would never ask my employer for the permission to comment or display this or any political point of view at work unless others were also permitted. It’s all or nothing, everyone or no one for me and a fascinating, important distinction>
I get the concept of civil disobedience. What’s missing from this era’s civil disobedience is the embrace or at least the acceptance of the consequences of civil disobedience. Everyone wants their rights protected no matter who else’s rights are trampled or disregarded. No one wants to get dirty or miss their warm bed. Everyone wants to go to heaven but no one wants to die.
“What’s missing from this era’s civil disobedience is the embrace or at least the acceptance of the consequences of civil disobedience.
Clay, that is my opinion as well.
Civil disobedience can exact a penalty for its use. There is no law or moral reason why civil disobedience, itself, cannot exact such a penalty.
Socrates drank hemlock
This should not be a difficult issue. Indeed, if we didn’t have a woke administration, this wouldn’t be an issue at all. It is amusing only because it involves a woke corporation. Whole Foods apparently understands that its wokeism doesn’t translate to profits when it is shoved in the face of its customers.
The simple solution the business implement a uniform requirement. That would include masks provided by the business. The company I retired from had a uniform mandate. Provided $200/year to order from the company catalog. Part of the rules required the ubiquitous baseball cap must be one of dozens that carried the company logo.
Iowan – that could be the loophole that saves them. A uniform complete with mask and hat.
“that could be the loophole that saves them. A uniform complete with mask and hat.”
Can a business force an employee to espouse a political or religious position on their uniform if there is no relationship to the position of the job being held?
Would the answer change based on the size of the organization and how it impacts the well-being of the people or society?
I don’t think a company could force an employee to wear a message. They could make it a condition of employment.
Could you mandate attendance at morning prayer? Not say anything. Just be present.
Iowan, we can line draw the questions until the answer is so thin we can see one side through the other.
I agree, but the court has ruled out banning all messages at work. I fail to see how treating all employees the same violates the constitution.
I am not exactly sure of the limits that the courts have set.
Start with a company having a message on clothing they supply. ‘We want to please. -name of company”.
I think a major distinction will be if the messaging has to do with the company’s business.
The revolution always eats its young.
Whole Foods is one of the “politically correct” and yet is no longer woke enough.
Lefties ignore that being left is not a philosophy; it is a road to power.
Unless they want food fights in the produce aisle, there should be no hint of political advocacy in businesses that are open to the public. And if a Whole Foods employee with a BLM mask delivers anything to my house, you can be sure he/she will have forfeited their tip…in the name of law and justice.