Legal Updates

NLRB Finds Employee's Individual Protest Protected Under NLRA

In a recent decision, Home Depot, Inc., the National Labor Relations Board (“NLRB” or the “Board”) held that Home Depot violated the National Labor Relations Act (the “Act” or “NLRA”) by instructing an employee to remove a “BLM” — the acronym for “Black Lives Matter” — marker from their work apron. The Board found that the employee’s conduct was a “logical outgrowth of [Home Depot] employees’ prior concerted activities” in protest of discrimination, and therefore protected under the NLRA.

The Board’s ruling serves as a reminder to employees that actions undertaken by an individual employee may nonetheless be protected under the NLRA, if they bear a sufficient connection to group activity.

Legal Framework

Under Section 7 of the Act, employees – whether unionized or non-unionized – have the right to engage in concerted (i.e., joint) activity aimed at improving the terms and conditions of their employment. This includes, for example, initiating or supporting a union-organizing campaign, as well as speaking with co-workers for the purpose of garnering their support for requested changes in terms and conditions of employment.

Additionally, the Board has long recognized that the Act protects concerted efforts by employees to protest perceived racial discrimination in the workplace.

Employee conduct is “concerted,” for purposes of the NLRA, when it is “not solely by and on behalf of the employee himself.” However, in some circumstances, an action taken by a single employee may qualify as concerted (and thus protected) – such as when the employee is seeking to initiate group action, or when the employee’s seemingly individual action has a clear connection to previous concerted activities.

Background To Home Depot

Home Depot requires its customer-facing employees to wear orange aprons over their clothing. At the store at which the charging party, Antonio Morales Jr., worked, employees were encouraged to personalize their aprons, and employees wore LGBTQ Pride pins, Pan-African flags, sports team insignias, and various other symbols.

Morales (who identifies as non-binary) and some other employees wore BLM markers on their aprons. In light of controversies surrounding the BLM organization, Hope Depot became concerned that customers might react negatively to employees’ display of the insignia, perhaps even to such a degree as to create safety risks for employees at Morales’s store.

Home Depot supervisors first asked Morales to remove the BLM insignia from their apron during meetings in which Morales “voice[d] group concerns” about perceived discriminatory working conditions. These conditions allegedly included employees exhibiting racial bias toward customers and other employees, a more experienced co-worker asking an employee to closely watch customers of color, and Black History Month posters repeatedly being found torn down.

In response to Home Depot’s requests, Morales explained that the BLM marker was a way for Morales to “show . . . support for people of color or [B]lack associates.” Morales added that they would not remove the insignia because “this is the best way” to show such support.

Instead of agreeing to remove the marker, Morales decided to resign from Home Depot. (Other employees who were also wearing BLM insignias opted to remove the symbol from their aprons.)

NLRB’s Decision

The Board found that Morales’s insistence on wearing the BLM symbol was a “logical outgrowth of the employees’ prior concerted activities” and, therefore, protected under the Act. The NLRB explained that if there is evidence of a group complaint, the Board does not require evidence “of formal authorization in order to find that steps taken by individuals in furtherance of the group’s goals are a continuation of activity protected by Section 7.”

The Board acknowledged that, in special circumstances, employees may be prohibited from displaying their chosen symbols as part of otherwise protected concerted activity. Specifically, an employer may be justified in enforcing such a prohibition if it can show that employees’ display of the symbols would “jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees.”

The NLRB concluded, however, that Home Depot had failed to establish any such special circumstances to justify its ban on BLM markings on employee aprons. In this regard, the NLRB stated that because Home Depot “does not require employees to wear standardized aprons, but instead encourages employees to extensively personalize them, its public image defense necessarily fails.”

Similarly, the Board noted that to support a “‘safety’ justification, there must be evidence of nonspeculative, imminent risks.” The NLRB found no evidence of any such risks.

Further, while Home Depot asserted that banning the BLM marking would prevent employee dissension, the Board responded that “an employer cannot meet its special circumstances burden simply by showing that some employees disagree with a particular message.”

Finally, the Board concluded that Morales had been constructively terminated (i.e., effectively forced to quit) due to Morales’s refusal to comply with Home Depot’s unlawful instruction to cease wearing the BLM insignia.

Implications For Employers

As the Home Depot decision underscores, actions by individual employees may be protected under the NLRA if they bear a connection to group action. Moreover, protected concerted activities need not be focused on economic issues such as wages and benefits, but can extend to broader issues affecting the workplace, such as unlawful discrimination.

Accordingly, employers confronted with protest activities by employees – whether collective or individual – should proceed with caution and consult legal counsel before taking action to stop the activity or discipline the employee(s) involved.

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If you have questions about the Home Depot decision or the NLRA in general, please feel free to reach out to one of our experienced labor attorneys.