Can You Display "Black Lives Matter" On Your Work Uniform?

The NLRB's recent Home Depot decision does not actually do what its critics have claimed.

On February 21, 2024, the National Labor Relations Board (NLRB) released a decision that found that a Home Depot employee who wrote “BLM” (Black Lives Matter) on their uniform at work was engaged in protected concerted activity and that Home Depot violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by directing that employee to remove the marking and then constructively discharging the employee for failing to do so.

The NLRB leadership was proud of this decision and highlighted it in a press release issued on the same day. Naturally, this has generated some backlash, but that backlash has mostly overstated the actual scope of the NLRB’s finding. The NLRB did not find that all workers have a right to display “BLM” or other sorts of political slogans on their uniforms. Rather, it found that such a display was protected because of the unique circumstances of the Home Depot case.

Home Depot Case

In the case, the charging party, Antonio Morales Jr., witnessed a slew of racially discriminatory conduct in the workplace and engaged in concerted discussions with coworkers about that conduct. Those coworkers also concertedly brought their concerns about this conduct to management.

By displaying “BLM” on his uniform, Morales was engaged in protected concerted activity insofar as he was protesting against racially-discriminatory working conditions and insofar as it was a “logical outgrowth” of the concerted discussions Morales had with coworkers and management about these instances of workplace discrimination. Some of his coworkers had also written the phrase on their uniform.

Of course, the challenge with something like “BLM” is that, in the society, it has a much broader meaning that is not primarily understood as being about racial discrimination in the workplace. Indeed, this is why the administrative law judge (ALJ) initially found that writing “BLM” on a uniform is not protected.

However, under Board law, the meaning of a message like this is not drawn solely from the society, but may also be derived from the particular workplace context and circumstances surrounding the message. Here, that context and those circumstances make it clear enough that “BLM” was at least in part a protest against specific racial discrimination in this specific Home Depot store, which is protected activity.

Home Depot is appealing the decision in the Eighth Circuit. But so far no arguments have been filed in that proceeding.

GC Wanted a More Expansive Decision

The actual Home Depot decision does not appear to be all that significant as far as the development of Board law goes. Perhaps it slightly stretches what counts as the “logical outgrowth” of concerted activity. Perhaps it slightly stretches how ambiguous a worker’s message is allowed to be while still receiving protection. But mostly it just applies well-established Board law.

What the General Counsel of the NLRB actually hoped to get out of the case was a finding that any employee, even one acting alone, that displays something like “BLM” on their uniform is engaged in protected activity under the NLRA. The GC released a guidance memo to this effect in 2021 (GC 21-03), released an advice memo for the Home Depot case that made this argument, and raised the argument in the Board proceeding.

The GC’s argument for why such conduct should be protected is that it is “inherently concerted.” Under the inherently-concerted doctrine, employee messages about certain topics vital to workplace conditions are deemed concerted, even when done alone, because they are indispensable first steps to initiating collective action. Put differently, it would make no sense to say that two or more workers acting together to protest some workplace condition is protected activity but that one worker attempting to initiate conversations with coworkers about workplace conditions, which is a necessary precondition for organizing such a protest, is not.

Under this theory, a worker wearing a “BLM” insignia on a uniform is inviting other workers to talk with them about racial discrimination in the workplace and thereby lay the groundwork for collective activity.

It’s a fun theory, but the NLRB declined to rule on it because “the record evidence here makes clear that Morales’ refusal to remove the BLM marking was concerted under well-established precedent.”

The NLRB did however tease that it would be open to reaching such a conclusion in a subsequent case, writing that:

In declining to take up this issue, we do not suggest that protesting workplace racial discrimination is any less central to the exercise of Sec. 7 rights than seeking to improve wages, to obtain desirable work schedules, or to protect job security, all of which we have found inherently concerted, and we express no view as to whether, in a future appropriate case, we would find protests of workplace racial discrimination to be inherently concerted.

History of BLM at the NLRB

In my comprehensive NLRB database, the phrase “Black Lives Matter” appears in 22 different documents, including two Board decisions, 13 ALJ decisions, and three advice memos.

In the ALJ cases, the phrase commonly comes up in the context of trying to prove that an employer cracking down on union messages in the workplace is discriminatory (e.g. these four cases involving Starbucks: I, II, III, IV). If an employer generally allows workers to display the BLM message on bulletin boards or uniforms but then discriminates against union messages in the same venue, that violates Section 8(a)(1) of the NLRA.

There have been four ALJ cases that specifically dealt with the question of whether displaying “Black Lives Matter” is itself protected activity (SFR, Home Depot, Whole Foods Market, and Fred Meyer Stores). In each case, the relevant question is whether the message has a close connection to workplace conditions such that it can be deemed protected activity in the same way that messages about wages or job safety are.

In SFR, Home Depot, and Whole Foods, the answer was no, though the Home Depot decision was later overturned, as discussed above. In Fred Meyer, the answer was yes, but the reasoning in Fred Meyer, though a bit scattered at times, did specifically mention unique workplace-specific circumstances where the employer itself initially released a statement in support of Black Lives Matter and then later asked the employees not to display the phrase. In those circumstances, the continued displaying of the phrase was arguably a protest against workplace racism, or at least against the employer’s disingenuousness about workplace racism.

From Judge Anzalone’s colorful opinion:

In June 2020, amid the Floyd demonstrations, public support for the Black Lives Matter movement was at 67%, including 6 in 10 white Americans overall. By September, however, support had dipped to 55%. Corporate embrace of Black Lives Matter was no longer necessarily in vogue. Respondents’ associates, however, had taken Kroger’s words to heart; when FM 667 management tried to reign in their workplace BLM speech, associates resisted. They questioned Kroger’s BLM “bona fides,” rejected its corporate wristbands as insufficiently authentic, and demanded to know why BLM was being treated differently than PRIDE. Openly casting doubt on CEO McMullen’s professed support for BLM, in light of Respondents’ refusal to allow them to show their own support, the associates effectively told Respondents to “get off their soapbox” and tend to their own stores. Finally, assisted by Local 21, they began putting Respondents “on blast” for using images of smiling Black associates in publicity shots while denying their real employees the right to speak up for Black lives.

“Virtue signaling” is defined as “the act or practice of conspicuously displaying one’s awareness of and attentiveness to political issues, matters of social and racial justice, etc., especially instead of taking effective action.” Regardless of whether, by curating an adamantly anti-racist and pro-Black Lives Matter public image, Respondents can be accused of this tactic, their conduct created a reasonable and direct nexus between the BLM message and the advancement of mutual aid and protection of the associates at their stores.

This history and the Home Depot decision should not lead anyone to believe that the NLRB is now protecting any and all workplace displays of political messages. If a particular messages is not closely related to a workplace issue, and if it is not being displayed in a collective way with some coworkers, it is not likely to be protected under current Board law.