Antonio Morales, who identifies as Hispanic, Mexican, and a person of color, using they/them pronouns, was employed at Home Depot as a sales specialist in the flooring department. From the outset of Morales’ employment, coworker Allison Gumm subjected customers and employees of color, including Morales, to racially discriminatory behavior. For example, Gumm erroneously attributed Morales’ difficulty in registering a customer’s credit card in the computer system to Morales’ entry of the relevant data in Spanish. A day later, Gumm advised Morales to watch a Black customer closely because, according to Gumm, people of Somali descent were more inclined to steal.
On numerous occasions, Morales discussed Gumm’s offensive conduct with coworkers in the flooring department. All agreed that Gumm exhibited racial bias towards customers and fellow employees, and that management should deal with her misconduct. The other flooring department employees even made a conscious effort to “intercept” customers of color so they would not be subject to Gumm’s bias.
Morales and coworkers repeatedly complained to managers about Gumm’s conduct. Unbeknownst to Morales and his coworkers, Home Depot held a documented verbal performance discussion with Gumm, and Gumm received disciplinary coaching and counseling in response to these complaints. The employees were not aware of these interventions, seeing only that Gumm persisted in her conduct with no apparent consequences.
A few months later, employees prepared materials for the observance of Black History Month at Home Depot’s request. Shortly thereafter, unidentified persons ripped up the displays on two separate occasions. Management emailed certain store employees and supervisors, advising them of the incident. Morales replied to the email and suggested a wider discussion of the serious underlying issues at Home Depot.
Later that day, Morales was called to meet with an assistant store manager and store manager about their email. The store manager told Morales that Home Depot was taking care of the vandalism incidents, and they should leave the problem to management. Then, the store manager began discussing the hand-drawn BLM insignia that Morales had added to their apron. This was the first time a manager or supervisor had said anything about the BLM marking, even though Morales had worn it continuously for the prior five (5) months, including during face-to-face meetings with supervisors.
The store manager said the BLM insignia was contrary to the dress code’s ban on displaying causes or political messages unrelated to workplace matters. The store manager said Morales could not return to work until he removed the BLM insignia. The store manager explained that if he allowed Morales to wear the BLM insignia, he would have to let other employees wear swastikas. Morales objected to that comparison. The store manager said that “All Lives Matter” was preferable as a slogan to “Black Lives Matter.”
Morales resigned from Home Depot due to the racial harassment and discrimination their coworkers had suffered, and noted that injustices, micro-aggressions, and blatant racism they experienced would not go unnoticed.
Seven days after Morales resigned, Home Depot fired Gumm. Home Depot also, for the first time, posted copies of the dress code and apron policy throughout the store and advised all employees that displaying BLM insignia was contrary to the policy.
Morales filed a complaint with the National Labor Relations Board (NLRB) against Home Depot. He did not argue that Home Depot violated the National Labor Relations Act (NLRA) by maintaining a nationwide dress code policy prohibiting employees from displaying “causes or political messages unrelated to workplace matters.” Rather, he argued that Home Depot violated Section 7 of the NLRA when it classified the BLM insignia as a dress code policy violation.
Section 7 of the NLRA protects employees when they engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection. To be protected under Section 7, the conduct must relate to collective bargaining, working conditions and hours, or other matters of mutual aid or protection of employees. For an action to be concerted, it must be engaged in with or on the authority of other employees, and not solely by an employee acting on behalf of himself.
An Administrative Law Judge (ALJ) heard the case and ruled in favor of Home Depot. The ALJ found that Home Depot’s application of its dress code to prohibit BLM messages did not interfere with employees’ protected concerted activity. The NLRB reviewed and overturned the ALJ’s decision.
The NLRB found that Morales’s refusal to remove the BLM marking from their work apron was protected concerted activity under the NLRA. Morales, along with two coworkers, wore the BLM markings on their aprons around the same time that the flooring department employees were having conversations about Gumm’s behavior. The NLRB found that although there was no evidence that Morales discussed the BLM insignia with other employees before adding it to their apron, or that other employees expressed approval or support for it, it was clear that there was a group complaint about the working conditions. Morales was voicing group concerns about Home Depot’s response to discriminatory working conditions when they sent the email and met with the managers, and wearing the BLM marking was a logical outgrowth of their prior concerted activities.
The NLRB also found that Morales’s insistence on continuing to wear the BLM insignia was for mutual aid or protection. Morales stated that displaying the BLM marking was a way to show support for people of color or Black associates, and Morales said in the meeting that they refusal to remove the BLM because they wanted to lead by example. In other words, they were acting to improve the terms and conditions of their employment.
The NLRB found that Home Depot did not demonstrate any special circumstances to justify the prohibition of the BLM markings, such as concerns about employee safety, damage to machinery or products, interference with an established employer public image, or part of the employer’s business plan.
The NLRB found that Home Depot constructively discharged Morales by conditioning their return to work on removing the BLM insignia from their work apron. The NLRB ordered Home Depot to offer full reinstatement to Morales; provide Morales with any loss of earnings, including back pay; and compensate Morales for any direct and foreseeable monetary harm, such as search-for-work and interim employment expenses. The NLRB also ordered Home Depot to cease and desist from applying its dress code and apron policy to Section 7 activity.
Note: Although the NLRA does not apply to public employers, the California Public Employment Relations Board (PERB) and the California courts can look to NLRA precedents. Both the EERA and the NLRA give employees the right to engage in concerted activities without employer interference. The topic or wearing BLM messaging has been coming up more frequently. In December, an administrative judge for the NLRB found that Whole Foods dress code forbidding BLM messaging was permissible because there was a lack of nexus between BLM messaging and employees’ rights to unionize. Here, the NLRB came to the opposite conclusion because the BLM messaging was in protest to the employees’ working conditions.
Home Depot USA, Inc., 373 NLRB No. 25 (N.L.R.B. February 21, 2024)