OFCCP Week in Review: June 2022 #2 | Direct Employers Association
Friday, June 10, 2022: Home Depot employee posting of Black Lives Matter/BLM on the work apron was not a protected activity; Employer’s enforcement of dress code did not violate NLRB, ALJ finds
A retail employee’s display of Black Lives Matter/BLM (“BLM”) on their work apron was not an activity protected by Section 7 of the National Labor Relations Act (NLRA) , said USDOL Administrative Law Judge (ALJ) Paul Bogas (Home Depot c. morals). Therefore, the company applying its dress code policy to this posting did not violate section 8(a)(1) of the Act.
The use of an individual employee’s “they/them/their” pronouns would be confusing when a concerted activity might be involved
The ALJ explained in the first footnote of its decision that the use of the individual complainant/employee’s pronouns – “they/their/theirs” – would be “unacceptably confusing” because the case included disputes as to whether certain activities were “concerted” and referring to actions taken by the employee alone as actions taken by “they” or “them” could give the erroneous impression that these actions were taken by more than one person . As a result, the ALJ said it avoids using pronouns to refer to the employee. All they/them/their pronouns in this ruling are plural and should be understood to refer to more than one person.
The employee was given suggestions and an opportunity to find a way to express the desired sentiment without violating company policy – to no avail
In addition to pre-printed customer service messages, Home Depot employees were encouraged to personalize their required orange work aprons by adding their own written messages. However, the retailer’s dress code policy prohibits employees from using the apron – or any other attire – for “[display] causes or political messages unrelated to workplace affairs. Although the policy does not explicitly state that “Black Lives Matter” and “BLM” are prohibited, the parties have agreed that the company interprets this policy to include those terms.
The complainant employee, who identified as Mexican, Hispanic and a person of color, worked at a store in the Minneapolis-Saint Paul area, located “about six and a half miles from where George Floyd, a unarmed black man, was murdered on May 25. , 2020, by one or more officers of the Minneapolis Police Department,” the ALJ noted, noting the civil unrest that occurred in the wake of this event. In an effort to save the worker’s job, a district manager suggested other ways the employee could express support for diversity, people of color and/or black colleagues without violating the dress code, but the employee ultimately rejected these suggestions. The District Manager repeatedly emphasized to the worker his view that the employee was a valuable asset to the company and offered the employee the opportunity to consider an alternative that would allow for the expression of desired support without violating the dress code. Although he agreed to do so, the employee quit instead. Providing a resignation letter, the employee referenced allegations of racial harassment and discrimination by a colleague, which were already being investigated by the company. No mention was made of the dress code.
Proof of interference in a concerted activity – an essential element of the claim – was entirely absent
Arguing on behalf of the employee, the NLRB General Counsel’s Office did not allege that the dress code violated the NLRA on its face (that’s to say, by the language in the policy), but rather that the company broke the law by classifying BLM as a message falling within the code’s prohibition. Explaining that Section 8(a)(1) of the NLRA prohibits employers from interfering with the right of Section 7 employees to engage in “concerted activity” for their “mutual aid and protection,” The ALJ first noted that the attorney general did not even attempt to demonstrate that the retailer banned displays that constituted concerted activity.
Instead, the General Counsel claimed that employees’ BLM postings are so essential to their efforts to improve employment conditions that such postings should be added to the list of topics the National Labor Relations Board is considering. as “inherently concerted”. The ALJ, however, explained that it was up to the Council, not it, to decide whether or not to adopt this designation. As such, the judge found that the company’s enforcement of its dress code to prohibit BLM messages did not interfere with employees’ protected concerted activity in violation of Section 8(a) (1 ).
Although there had been concerted activity, there was no indication of a direct link to the efforts of employees to improve their terms of employment.
“[ ]BLM messaging was not intended as an effort to address employee working conditions, nor was it reasonably perceived to be such,” the ALJ observed. “Rather, the record shows that the message was primarily used, and generally understood, to address the wrongful killings of black people by law enforcement and vigilantes,” he continued. Acknowledging that the message was “a matter of profound societal importance”, the judge pointed out that it was “not directly related to the terms, conditions or number of employees of Home Depot as a employees (underlined by the judge). While general messages of political and social justice may ultimately have an impact on the terms of employment, the BLM message at issue here did not address the concerns of employees as employees and any connection to the terms. of work was simply too remote and too vague to satisfy the mutual commitment of Article 7. need for assistance or protection.
Further, there was no evidence that the complainant employee’s BLM posting was more directly related to working conditions than BLM postings in general. None of the witnesses, including the complainant, said his BLM posting was related to the complaints about the co-worker or any other incidents and conditions at the store. The fact that the posting took place at a store near the site of George Floyd’s murder and on a date close to the incident, supported the conclusion that the complaints were unrelated to the workplace’s working conditions. employee.
Management’s application of the policy was not related to protected activities regarding complaints of racial discrimination and harassment
The ALJ also rejected arguments that the company violated the NLRA Section 8(a)(1) by selectively and patchily enforcing its dress code against the employee in retaliation for communications made to the management and co-workers about the biased and harassing actions of a particular co-worker towards other employees and customers. Although the judge agreed that these actions were protected concerted activities, the evidence did not show that the dress code was selectively enforced against the complainant employee. Indeed, management investigated the complaints (eventually firing the co-worker) and otherwise supported the employee’s concerns. Additionally, store management witnessed instances of themselves and other company officials disciplining other employees for “BLM” messages, as well as “Blue Lives Matter” and “ Thin Blue Line” for violating the dress code.
The district manager’s instruction to keep the conversation about employee complaints of racial harassment and vandalism in the break room confidential did not violate the NLRA as it was specifically related to an investigation
Finally, the ALJ ruled that the district manager’s instruction to the employee – to continue their discussion at a meeting about the employee’s complaints of racial harassment and vandalism of a break room during the Month of employer-sanctioned black history – was intended to protect the integrity of the employer’s investigation. Accordingly, the direction was “categorically lawful” under 8(a)(1) of the NLRA because it was limited to the duration of the investigation.