In January, I wrote a column criticizing the legal position of the National Labor Relations Board (NLRB) in favor of Whole Food workers seeking to wear Black Lives Matter (BLM) symbols or clothing at work. Now a judge has rejected a similar claim brought by employees at Home Depot despite a decision in their favor earlier by the NLRB General Counsel.
According to the complaint, the controversy began with a worker donning a Black Lives Matter logo in August 2020. The NLRB quickly dismissed objections about compelled speech by the company if the government were to order the company to allow such political and social expression in the workplace.
NLRB Regional director Jennifer Hadsall said in a statement that issues of racial harassment “directly impact the working conditions of employees” She added “[t]he NLRA protects employees’ rights to raise these issues with the goal of improving their working conditions. It is this important right we seek to protect in this case.”
It was the analysis of the NLRB’s general counsel that was particularly surprising. The General Counsel found that the company was violating federal law by preventing staff from wearing BLM imagery on their aprons. In doing so, the General Counsel claimed that the BLM speech was indistinguishable from other speech like union insignia that is also protected. There is obviously a distinction between showing a protected union identification and displaying a statement in support of a political or social cause.
The General Counsel offered a rather abridged account of the free speech cases in this area on compelled speech. That includes the Supreme Court’s unambiguous statement that “[w]hen an employee engages in speech that is part of the employee’s job duties, the employee’s words are really the words of the employer.” Janus v. Am. Fed. of State, County, and Mun. Employees, Council 31 (2018).
Despite such decisions, the NRLB continues to push these claims. 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.”It is a problem faced by other companies with other political expressions. Earlier, 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 is ambiguous on whether 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?
Moreover, 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 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 or Home Depot 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 is whether the government can require companies to allow speech deemed unacceptable or offensive.
My greatest concern with these cases is the dismissal of the free speech rights and prior cases supporting the companies by the NLRB. Of course, people can protest or boycott businesses for such policies. Much like social media companies engaging in extensive censorship, they have a right to do so but not a right to be free from criticism or campaigns opposing their policies. Yet, the NRLB is seeking to compel the companies to allow employees to express support for different political causes in the workplace. In my view, that position is legally unsustainable but continues to be advanced by the General Counsel and the NRLB.
The very minute I drop all I’m buying at the checkout line and I see a BLM Or a, ANTIFA “Anything”, on any employee, is when I say BRB And I walk out behind me and go look at another employee, head to toe. Ok. Good. This one. Then I go back and I get everything I’m buying and put it right back in my cart. And if this thing asked me why am I doing it? I am going to say,
“I DON’T SUPPORT SUCH VILE DESTRUCTIVE SOCIAL TERRORISTIC ORGANIZATIONS. THAT’S WHY.” But that, is never going to happen here in Wyoming.
It’s plain and simple bad business to alienate a portion of your customer base. Remaining politically neutral is the only way to exercise fiduciary responsibility.
We flourish as we flail.
Some, Select [Black] Lives Matter’s adoption of diversity [dogma] (i.e. color judgment, class-based bigotry), inequity, and [selective] exclusion (DIE) doctrine under the Pro-Choice “ethical” religion of the Progressive Cult didn’t help their standing, and invading neighborhoods to intimidate families and residents to take a knee, beg… recalled the Rainbow-colored optics of Democrat past. That said, Baby Lives Matter (BLM).
Jonathan: Speaking of “free speech rights” and “social media companies engaging in extensive censorship” did you see what is happening over at Trump’s Twitter knock-off “Truth Social”? Trump touted TS as “open, free and honest global conversation:. TS’s CEO Kevin Nunes says the platform is “inviting people on and not censoring them”. Don’t tell that to some TS account holders.
When it comes to discussion of the Jan. insurrection that subject is verboten on TS. One account holder said in a Tweet ( that permits such discussion) : “I was banned from Truth Social for posting about the Jan. 6th hearing last night. Donald Trump is scared of free speech”. Another Tweeted: “Just put out my first post on [about Jan. 6] on Truth Social and they deleted it. Real freedom of speech champs there”.
So when it comes to free speech you won’t find much on TS–unless you are willing to provide an echo chamber for Trump’s nonsense about the 2020 election. Otherwise, there will be a lot of censorship. I don’t expect you will be discussing TS anytime soon. So for all those in this chatroom who still think Turley is a free speech “purist” and a “never Trumpster” think again.
As if you owning a computer proves the accuracy of anything you type.
The insurrection was 11/3. J6 was a party compared to the death and damage done to cities from the George Kirby (thank Pelosi) Floyd riots, not peaceful protests. Glad TS banned J6 talk. It’s a setup of epic proportions.
Protest on your own time. Period.
That includes the kneelers, all those virtue-signaling, sanctimonious morons who ‘take a knee.’ Gag, puke, vomit.
So I have a right to wear MAGA on my Home Depot apron? I can wear a red MAGA face mask at Whole Foods? Can I wear FJB on my work apron? And NLRB will come to my defense?
Hahaha
As a Home Depot shopper, how am I to know if that BLM logo on the workers’ clothes signifies a genuine feeling for Black civil rights, support of riots for that cause or support for a Marxist based organization that advocates for the de-funding of police? In this contentious environment, Home Depot rightfully should keep political speech off workers’ attire. Allowing it will antagonize a segment of its shoppers.
The NLRB is unconstitutional in its actions.
The NLRB is constitutional in its institution.
The sole arbiter of duties and compensation of employees is the owner of private property, duties and compensation which employees may accept or reject.
Legislation which favors labor is unconstitutional, and constitutes unconstitutional intercession by Congress in private free enterprise.
Congress has no power to favor citizens who operate a free private enterprise, or to favor citizens who hire on as employees of an enterprise.
Article 1, Section 8, enumerates NO power to Congress to regulate, dominate, control or direct any aspect or facet, any form or fashion of private enterprise operations.
Citizens enjoy the right and freedom to accept or reject employment, as proffered by the private property enterprise owner.
The sole arbiter regarding hypothetical and counterfactual, phantom and false “labor relations,” is the owner of the private property and private free enterprise.
Private property is distinctly not public property under the dominion of Congress.
The NLRB has no power or authority to nullify and deny the absolute right to private property.
The right to private property is absolute, or the right to private property does not exist, and all property is public property, as per the Communist Manifesto.
Congress has the authority to create the NLRB.
Congress has no power or authority to “claim or exercise” dominion over private property and no power or authority to hire, fire, pay, direct or otherwise supervise employees.
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“[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
There is a glimmer of hope when Netflix tells their employees who are wokesters to take a hike if they don’t like the companies policies. As a business Netflix did the right thing when it realized that the bottom line was being effected. Home Depot understands that the hard working construction workers who frequent their stores are not of the same mind as the snowflake crowd. Perhaps Disney may also realize that it’s customers are not made up of just the misdirected social justice warriors. Perhaps we are beginning to see the glimmer of rationality.
There is a federal case from Missouri back in the 1980s. A state employee was disciplined for wearing a tag which said PTL. That did not refer to Praise The Lord. But to Pay The Lobbyist.
She won her First Amendment case in the 8th Circuit. Her name was Doris Bauer’s.
I apologize, this is not aimed solely at your grammar error. WTH is it with people no longer knowing the purpose and proper use of an apostrophe?
Most of the NLRBers I encountered while practicing labor/employment law were either lefties – or had to follow the left-leaning politics of their supervisors, managers and higher-ups. The “law’ is not the guideline in these kinds of matters; the political bent of the NLRB is, notwithstanding the law.
Why should a business allow n employee to wear something that will make a customer mad? If I go into my bank and the teller is wearing a BLM mask or button I will remove my money from the bank and move it to another bank. I am sure that a lefty customer would feel the same if the teller was wearing a pro-life mask. This is why companies have the right to restrict such nonsense.
The nerve of the employees suing for the right to cause a loss in business is stupidity upon stupidity.
Having said the above I think the most important issue at hand is that THE NLRB SIDED WITH THE EMPLOYEES!!!! This is more of the radical appointments being made in government by so called moderate Democrats. Think about ALL of Biden’s appointees and try to name even one that is mainstream. All Biden cares about it color, gender and sexual orientation…and it shows.
“The question is whether the government can require companies to allow speech deemed unacceptable or offensive.”(JT)
Their business, their property — their rules. If you don’t like their rules, then work elsewhere.
P.S. Less time proselytizing; more time on customer service. (Yet another skill that’s vanishing.)
As a veteran and long as I get my discount I don’t care if the employees are buck a*s naked or have BLM stamped to their forehead it doesn’t bother me.
Political comments do not belong at work or on a field. Do your protesting somewhere else. Roger Goodell screwed that up in a big way. He wouldn’t allow socks to be worn to honor 9.11 heroes and then backed down to political, actually monetary, pressures for his own financial gain.. ‘Follow the money’ is usually the great reveal.
I stop using products of companies who HATE AMERICA and Science!
If it’s a woke company or if it is implementing the ECG protocols, I switch brands. I will not be part of that indoctrination. There are plenty of products on the market, I am not enslaved to a particular brand – I’m not that much of a sheeple yet.
In light of the questions regarding the whereabouts of BLM money, how it’s been spent and the groups intent, why would anyone where that logo? Why would any employers allow it in the work arena unless pressured by the government? You’d have to be pretty desperate to announce to the world how socially woke you are if you’re wearing that logo.
An employee manual is an historic document. In the life of a business or organization because situations arise that require clarity, so a new policy is written. In time, if done right, the policies become clearer.
Experienced business owners and HR leaders will agree that without concisely written and fairly executed policy, a business or organization cannot properly function. It always comes down to policy.
This has nothing to do with freedom of expression. It has to do with running a business and serving customers who come in every shape, size and form or political standing.
One my cashiers at the big chain hardware is Angie. Angie could have been an NFL linebacker. Angie has long purple hair, polished fingernails and wears the neutral store uniform. They are not imposing cultural values on the employees like Angie such as how a person wears their hair, unless it is a safety or sanitation issue. Angie is an awesome and knowledgeable employee.
Home Depot won this case because they had existing and reasonable policy. It is about running a business and nothing more.
Home Depot is an extraordinary place. One of the original owners noticed that autistic people had trouble finding employment. He had a whole program set up which I believe is still there. He has actual trained teachers work with the autistic people they hire and for the first three months they are trained by the qualified staff to fit in. The Home Depot man said he found they were extraordinarily hard workers but did need to learn how to socialize better with their customers and other employees. Here is a man who has gone out of his way to help and I do think the answer is plain tee shirts and hats so no one’s point of view becomes an issue.
Good for the ALJ – I’m sure that the agency heads were trying to impose some degree of pressure to find differently, regardless of the APA provisions. Kudos, Judge Bogas, for honoring your oath
Can a private employer compel political speech by requiring an employee to stand or place their hand over their heart during the playing of the national anthem? Can a private employer require promotion and/or support for the military by employees who oppose war for religious reasons or reasons of conscience?
Some, Select [Black] Lives Matter is a rabid diversity [dogma] (i.e. color judgment, class-based bigotry) front that over multitrimesters carried out nationwide insurrections, and invaded neighborhoods to intimidate and force families and residents to take a knee a la Democrat KKK. One step forward, two steps backward.