A National Labor Relations Board (NLRB) administrative law judge recently ruled that a Washington grocery store chain’s prohibition against Black Lives Matters (BLM) buttons was a violation of Section 7 of the National Labor Relations Act (NLRA).  Section 7 protects workers’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .”

A 1978 Supreme Court decision held that Section 7 protects employee speech on political issues that affect their well-being as workers.  The Supreme Court qualified its ruling, however, by indicating that at times the connection between the political speech and workers’ rights may become too “attenuated” and Section 7 will not apply.

In this case, the grocery store’s employees began wearing homemade buttons and masks to express support for the BLM movement following the death of George Floyd in 2020.  The grocery store voiced support for BLM by releasing a video featuring BLM and other protest slogans, with its CEO declaring that the company stood “against racism and injustice against the Black community.”

The union to which the grocery store workers belonged issued its own BLM buttons, and its members began wearing them to work.  After receiving negative media attention and customer complaints, the grocery stores banned the buttons in accordance with its dress code and began sending home employees who wore them at work. The company’s dress code prohibited unauthorized buttons and logos on the job, with limited exceptions for approved themes such as holidays, sports logos, and LGBTQ-related buttons during Pride month.

The Administrative Law Judge found that the employer had not consistently enforced its dress code. For example, it tolerated the wearing of Pride buttons year-round and did not discipline employees for wearing buttons stating their choice of pronouns.  And in some stores employees were not subject to discipline for wearing the BLM pins at issue in this case.

In concluding that the discipline of the employees was an NLRA violation, the judge cited the selective enforcement of the dress code.  She agreed with the employees that they were advocating collectively for a more equitable workplace, a protected activity under Section 7 of the NLRA.

This case is a good reminder to consistently enforce workplace policies.  Failure to do so can give momentum to a challenge by employees.

AIM members with questions about policies or any other human-resources matters may call the AIM HR Helpline at 800-470-6277.