On Nov. 6, the 8th Circuit Court of Appeals in Home Depot U.S.A. Inc. v. NLRB found Home Depot’s restriction of Black Lives Matter (BLM) messaging on its signature orange aprons was permitted under the “special circumstances” defense to restricting protected concerted activity under Section 7 of the National Labor Relations Act (NLRA).
This decision sheds light on times when an employer may restrict certain conduct pursuant to a well-established policy in order to advance the employer’s legitimate business interests.
Sections 7 and 8 of the NLRA
Section 7 of the NLRA protects employee rights to self-organize, join or assist labor organizations, bargain collectively, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection — protected concerted activity.
Section 8(a)(1) prohibits employers from taking actions that “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” in Section 7. In the past five years, the National Labor Relations Board (NLRB) has issued decisions expanding the definition of protected concerted activity, making it more difficult for employers to understand their obligations under the law.
The Facts
Home Depot requires employees to wear an orange apron to work. While Home Depot’s uniform policy allowed employee customization of aprons with pins, illustrations, and written messages, they prohibited displays of “causes of political messages unrelated to the workplace.”
A worker employed at Home Depot’s New Brighton, Minn. location, just miles from George Floyd’s murder, wrote “BLM” in black marker on his apron. Management, while supporting the message, asked the employee to remove the lettering pursuant to the company’s uniform policy. The employee could not return to work until he removed the lettering.
Management suggested the employee wear a general diversity, equity, and inclusion pin or a “respect for all” pin. The employee refused and returned the next day donning the BLM lettering, and after discussion on a variety of topics, the employee was asked not to return until he found another way to express his beliefs.
The employee resigned the next day and filed an unfair labor practice charge claiming Home Depot violated Sections 7 and 8(a)(1) of the NLRA by prohibiting employees from displaying “BLM” on their aprons.
In other words, the employee alleged that Home Depot disparately enforced its uniform policy. Home Depot argued the BLM messaging was not, in fact, protected concerted activity and that requiring the removal of the messaging was justified under the “special circumstances” doctrine — allowing employers to bar protected messaging when it conflicts with legitimate business interests.
The Court Finds Prohibition on Wearing BLM Messaging on the Uniform Justified
The 8th Circuit vacated the NLRB’s decision finding Home Depot violated the Act when it prohibited the BLM messaging on the employee’s apron. The court reinforced that there must be an “accommodation” between the employee’s Section 7 rights and protecting management interests.
“To ensure proper accomodation, it is necessary to examine whether there are special circumstances present which rebut the presumption of work rule invalidity.”
The court held there were, “‘special circumstances [that] justify a prohibition on wearing’ this kind of message in a customer-facing job at this location during this period of time.”
The court first determined Home Depot did not outright ban the message, but only limited the display of the messaging on the employer-required uniform pursuant to a well-established and consistently applied uniform policy.
As the court explained, “it is for the employer, not the Board [NLRB], to determine whether personalization will be allowed because it is apolitical, appropriately demonstrates the company’s values, or is related to the workplace.” Home Depot demonstrated that it consistently applied the policy.
The court then turned to its “special circumstances” analysis, finding that the restriction of the BLM display on the apron was warranted. The conditions surrounding the BLM movement facing this particular store gave rise to legitimate safety concerns.
The New Brighton location is in proximity to the site of George Floyd’s murder and the employee’s conduct occurred just after the events. The heightened tensions in Minneapolis contributed to unrest in the area. Home Depot made a “business decision…to preserve the store’s apolitical face to customers and safeguard employee safety in a risk-filled environment,” and the NLRB failed to balance these interests.
Takeaways
- The NLRB must weigh the interests of the employer and the employee when determining whether a work rule is valid.
- Consistent policy application is key to a successful defense in these circumstances. Policies that may restrict Section 7 rights must have a legitimate business reason for doing so.
- The court did not condone an employer’s outright prohibition of political messaging, only a limited restriction in connection with a consistently applied uniform policy. Employers should not rely on this case to support bans on political messaging in all circumstances.
- The court did not determine whether writing BLM on an apron and refusing to remove the language pursuant to an employer policy and directive was considered “protected concerted activity.” The Board may take up this issue on remand. Employers should stay tuned for updates on this issue.
- While a significant win for Home Depot, the facts of this case may limit its value for employers in the future. The 8th Circuit’s reliance on the specificity of the location of the store and the proximity in time to George Floyd’s murder may limit any future application of this decision. At least, until the NLRB rules whether the BLM writing constitutes protected, concerted activity.