New England Biz Law Update
The NLRB has issued a decision in Home Depot USA, Inc., holding that an employer violated the National Labor Relations Act when it discharged an employee for refusing to remove the hand-drawn letters “BLM” — the acronym for “Black Lives Matter” — from their work apron.
Several other employees at the same Home Depot store also displayed “BLM” markings on their work aprons at about the same time.
The National Labor Relations Act protects the legal right of employees to engage in “concerted activities” for the purpose of “mutual aid or protection,” regardless of whether they are represented by a union.
The Board applied existing precedent and said that the employee’s refusal to remove the BLM marking was “concerted” because it was a “logical outgrowth” of prior concerted employee protests about racial discrimination in their workplace and an attempt to bring those group complaints to the attention of Home Depot managers.
The employee’s conduct was also “for mutual aid or protection” because the issue of racial discrimination involved employees’ working conditions, the Board found.
Further, the Board said that an employer’s interference with its employees’ right to display protected insignia, such as the BLM marking, was presumptively unlawful, and that the employer had the burden of establishing special circumstances making a rule about insignias necessary to maintain production or discipline.
The Board found that Home Depot failed to establish such special circumstances in this case. Therefore, the Board held that the company broke the law when it conditioned the employee’s continued employment on removal of the BLM marking.
“It is well-established that workers have the right to join together to improve their working conditions — including by protesting racial discrimination in the workplace,” said Chairman Lauren McFerran. “It is equally clear that an employee who acts individually to support a group protest regarding a workplace issue remains protected under the law.”
