National Labor Relations Board Rules that Ban on BLM Marking Violated National Labor Relations Act3/31/2024
The National Labor Relations Board recently ruled that a Home Depot store has violated the National Labor Relations Act by insisting that one of its employees remove a "BLM" marking from their uniform. The NLRB determined that mandating the employee to remove the marking from Home Depot's orange apron constituted an unfair labor practice. In a separate recent NLRB decision, the NLRB reinstituted a former rule in which an employer's interference with insignia, banners, or badges is presumptively viewed as unlawful, unless there are special circumstances for the interference. In this present matter, Home Depot insisted that its employee remove a BLM logo from his apron, which the employee had drawn on the apron six months before this request, and told the employee that they feared allowing this logo could lead to other employees to request to put swastikas on their aprons. This eventually led to the employee being forced to resign. The NLRB determined that there were no special circumstances permitting Home Depot to prohibit the BLM writing, that Home Depot had forced the employee to resign, and that the employee had engaged in concerted activity because his behavior was a logical outgrowth of other employee complaints of bias against people of color. Such alleged actions are a violation of the National Labor Relations Act, which protects employees who engage in protected concerted activity to improve workplace conditions. See Home Depot USA, Inc. and Antonio Morales Jr Case 18–CA–273796.
An appellate court ruled in favor of employee claims under the National Labor Relations Act (“NLRA”) and against MikLin Enterprises, Inc. doing business as Jimmy John’s (“Jimmy John’s”). The ruling came after a group of employees who put up posters were fired “for being the leaders and the developers” of the posters. The posters were placed in general public areas both in stores and in other public places within two blocks of the store. The posters suggested that, because Jimmy John’s employers were not permitted paid sick leave, the customers eating at those restaurants risked becoming sick from food prepared by sick employees. The National Labor Relations Board held that Jimmy John’s violated the NLRA by firing or disciplining employees who engaged in protected concerted activity and for removing protected material from public places and bulletin boards, among other violations. The Eighth Circuit ruled that the Board’s decisions were supported by substantial evidence and granted the Board’s application for enforcement and denied Jimmy John’s petition for review. See MikLin Enterprises, Inc. v. NLRB, No. 14-3099 (8th Cir. 2016).
The National Labor Relations Act protects workers from being fired or disciplined for discussing or complaining about work conditions with fellow employees. Although the Act generally governs union activities or efforts to form a union, Section 7 of the Act applies to non-union work places as well. It provides: "Employees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
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