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.
Americans enjoy rights, freedoms, privileges and immunities provided by the Constitution.
Workers are provided no several rights, freedoms, privileges or immunities by the Constitution.
No false, phantom right of a “worker” has any weight or force to nullify the rights provided to Americans.
Congress is provided no power to nullify the rights of Americans through legislation.
Americans are free to create an enterprise.
Americans are free to accept employment and to refuse employment.
The owners of the private property, Whole Foods, are the only entity that may “claim and exercise” dominion over the aforementioned private property.
The owners of Whole Foods shall not be deprived of their right to “claim and exercise” dominion over their private property.
The owners of Whole Foods have the immutable right to compel or deny speech among employees, to direct employees, and to hire and fire employees.
_________________________________________________________________________________________________________________________
“[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”
– James Madison
______________
5th Amendment
No person shall…be deprived of…property,…nor shall private property be taken….
It’s the mark of the beast.
How many stories have the media censored as conspiracy theories, that turned out to be true?
For a start:
The Wuhan Institute of Virology being a credible source of SARS-CoV2
China covering up the origin and first two months of the pandemic, allowing it to go global
Hunter biden’s Laptop
Ashley Biden’s diary
Many cases reported as hospitalization or death for Covid turned out to be hospitalizations or deaths with Covid.
Cuomo put Covid positive patients into nursing homes, wiping out the elderly who lived there
Breaking…
The FBI representative refused to answer Ted Cruz’s questions about whether FBI agents or sources participated in, incited, or encouraged the January 6th protest turned riot at the Capitol.
https://youtu.be/DZQRetozhSY
Off topic. Supreme Court will get a case preventing fire fighters from having to wear life vests.
@anonymous
Black lives only matter if one is killed by a White police officer. Blacks kill each in massive numbers on a regular basis and none of the woke crowd gives a d@@n.
antonio
Isn’t this just one of those, “what goes around, comes around” deals? As Yosemite Sam would say, “Democrats is sooooooo stupid!”
I have worked on jobs where no such things are allowed. Even stickers on toolboxes ,carts etc. Alot of it stems therein from the mindset that if they allow anything it would lead to potential union propaganda to be allowed and all the trouble that ensues. It truly is saddening to see so many people duped by charlatan orgs like BLM. The perps at the top have cashed in and made millions off this divisive racist bunk.
People are so freakin brainwashed these days.
Whole Paycheck will instantly lose an enormous chunk of their customer base if they capitulate on this issue. I would go out of my way to avoid ever shopping in that store again. I would do the same for Amazon – which I already try to avoid using as much as possible.
All Black Lives Do Not Support Corrupt Marxist Organizations.
It takes all my discipline to not rip up all those BLM yard signs off lawns in front of million dollar homes of virtue-signalling wealthy whites.
Virtue signalling churches prominently displaying their BLM propaganda are awful too. They do not understand what this corrupt organization is really doing. They all disgust me.
All those prosperous people with lawns dotted with SOMEblmSOMETIMES signs and the churches similarly using their signs and pulpits are the very “folks” who voted for obama BECAUSE he is (partly) of AfricanAmerican heritage. They felt so good about themselves and so proud of themselves that they were voting for such a person; unfortunately, using someone’s race or heritage as the basis for a vote is nonsensical … and leads to consequences like the notAffordableCA.
Our nation is falling to the old tune, divide and conquer.
May we work to find those places where we agree, respecting others’ opinions.
And may a private business have the freedom to select the dress code they think best for their establishment. And may the employee understand that requirement before accepting a job.
Black Lives Matter Unless You Vote Republican
Black Lives Matters Unless You Are Clarence Thomas
Black Lives Matter Unless You Are A Black Cop
Black Lives Matter If You Vote/Think/Speak/Live/Believe What We Say You Should
Some Black Lives Matter To Us: (Most Don’t)
I am fed up with companies and/or their employees whose politics are in my face and will not do business with them.
Agreed. I want politic-free zone when shopping. I have enough on my mind!
Let me get this straight. Our government is demanding that an enterprise based on capitalism must allow its employees to advertise for a group that embraces Marxism? (Not to mention bigotry toward white people, rioting, looting, arson, and murder). Only in Biden’s America does this make sense.
Diversity [dogma] (i.e. color judgments, class-based bigotry) denies individual dignity, individual conscience, intrinsic value, and normalizes color blocs (e.g. “people of color”), color quotas (e.g. “Jew privilege”), and affirmative discrimination (e.g. Some, Select [Black] Lives Matter) under the Pro-Choice religion of the Progressive Cult/Church/Synagogue/Temple/Mosque/Agency/Corporation/College/Clinic/etc. Anything in the pursuit of capital and control, and forcing your competing interest to take a knee, beg, good boy, girl a la Xhosa vs Zulu, Hutu vs Tutsi, Kenyan elites vs deplorables. All’s fair in lust and abortion, I suppose.
leftist politics infest everything. imagine getting $$ to work somewhere and then demanding that company let you spew all your loony political beliefs at work getting paid somebody elses $$ get to work quit yapping about politics thanks
Why does a federal administrative agency even have a say in this?
The administrative state needs to be pared well back. It’s flooding over its banks.
Meanwhile, if political gear is allowed, permit a few employees to wear ‘Don’t Vaccinate’ gear and see how long this b.s. lasts.
Young,
I am thinking of having a tee-shirts made with,
” I
Self-Identity
as
Naturally
Immune”
Upstate,
Good idea.
Maybe “No Fauci! I Am Not Your Lab Rat!”
In keeping with my 100% Lithuanian heritage, I want a t-shirt that identifies me as a “person of NO color.”
Oh, no! Advertising “black” issues is a-ok, but advocating for a health issue is not at all protected. Learning that NFL games are preceded not only by the National Anthem of the USA, but also by something identified as as “black” anthem, dissuaded this household and others from watching the NFL – even if the tv broadcasts cut out both. NFL “players” wear helmets with pithy slogans dreamed up, I am certain, by SOMEblmSOMETIMES.
Or, Let’s go Brandon gear!!!
When you are on the job you are representing the company. Whether the appropriate attire is business like or a uniform that is part of being an employee. It is very reasonable for your employer to not want political slogans that will drive away some customers. On your own time wear your politics as you see fit. If you don’t like it start your own company and make your own dress code.
Yes….but Marxists are not “reasonable”…..they are authoritarian…..there is no ‘reasoning’ with them.