REGARDLESS OF WHETHER THEY ARE REPRESENTED BY A UNION, THE NLRB PROTECTS THE RIGHTS OF EMPLOYEES

The National Labor Relations Act (NLRA) is a federal law administered by the National Labor Relations Board (NLRB). Established in 1935, the NLRB is a federal agency that protects employees from unfair labor practices and protects the rights of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions.

The NLRA applies to most private-sector employers and protects most non-management employees, with few exceptions.

Section 7 of the NLRA guarantees employees “the right 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 ... ."

On February 21st, the NLRB (commonly referred to as the “Board”) issued a decision against Home Depot USA, Inc., holding that the company violated the NLRA when it threatened to terminate an employee for refusing to remove the hand-drawn letters “BLM” — the acronym for “Black Lives Matter” — from their work apron. The employee resigned after refusing to remove the marking and filed a complaint with the Board. Several other employees at the same store also displayed “BLM” markings on their work aprons at about the same time. The employees were protesting alleged race discrimination at Home Depot’s New Brighton, MN store. (Recall the tragic George Floyd murder in Minneapolis, MN.)

Applying prior decisions, the Board decided that the employees’ refusal to remove the BLM marking was “concerted” because it was a “logical outgrowth” of prior concerted employee protests about race discrimination in their workplace and because it was an attempt to bring those complaints to the attention of Home Depot managers. The Board also decided that the employees’ conduct was “for mutual aid or protection” because the issue of race discrimination involved employees’ employment and working conditions.

In other words, the employees’ actions were not mere political speech, but an outgrowth of prior internal complaints about workplace race discrimination, connected with their employment and working conditions. As reported by SHRM, “The employee had a right to display the handwritten insignia under federal law because it came amid complaints from a group of employees about racial discrimination at the New Brighton, Minn., store.”

The Board said that when an employer interferes with employees’ right to display insignia like the BLM marking, that interference is presumptively unlawful. But the employer can refute the presumption by showing that a company policy or rule – like prohibiting the display of a BLM marking – is supported by special business circumstances and is necessary to maintain production or discipline.

The majority of the NLRB (3 of 4 members) found that Home Depot failed to meet its burden of proof, or special circumstances, to prohibit employees from displaying the BLM marking. Accordingly, the Board decided that Home Depot violated the NLRA when it conditioned the employees’ continued employment on removal of the BLM marking.

“It is well-established that workers have the right to join together to improve their working conditions — including by protesting racial discrimination in the workplace,” said NLRB Chairman Lauren McFerran. “It is equally clear that an employee who acts individually to support a group protest regarding a workplace issue remains protected under the law.”

Home Depot was ordered to:

• Reinstate the employee.
• Provide back pay to the employee.
• Compensate the employee for any adverse tax consequences.
• Stop prohibiting its workers from taking part in “protected concerted activities.”

What are at least two bottom-line lessons?

1/An employer must actively listen to the concerns and complaints of employees about their employment and working conditions, take appropriate actions to address those concerns and complaints, communicate the actions taken, and follow-up with employees to flush out additional questions, concerns and complaints. Aside from legal compliance, doing this is a business best practice to foster positive employee relations and employee engagement.

2/An employer must take care to ensure that a company policy or rule does not violate employees’ legal rights (e.g., Section 7 of the NLRA, or applying a policy or rule in an inequitable and inconsistent manner). The employer must ensure that the HR team (and employment law counsel) are competent, accessible, and accountable and – as important – consistently enrolled in “people business” problem-solving and decision-making.

Respectfully, Darryl