In a little bit of a surprise from the National Labor Relations Board (NLRB), an NLRB judge upheld a Whole Foods’ ban on Black Lives Matter (BLM) wear/gear in its workplace. Some may remember that in 2020 Whole Foods was challenged by civil and labor rights activists for prohibiting the wearing of BLM insignia on its uniforms while at work. Whole Foods had a policy that banned “any visible slogan, message, logo or advertising” on its uniforms.

When some employees showed up to work wearing BLM attire, Whole Foods told them to remove the BLM messaging and disciplined any employee who did not. Employees brought their grievance to the NLRB under the theory that they were acting collectively and for the safety and security of their fellow employees and also that Whole Foods policy was racist and therefore discriminatory. NLRB’s pro-worker General Counsel Jennifer Abruzzo supported this complaint.

NLRB judge Ariel Sotolongo did not see it that way. He ruled that the policy was not protected activity because it was not connected to the employee’s job and therefore did not fall under the NLRA. He stated that “workers acting in concert with one another does not give employees ‘carte blanche’ to disobey an otherwise valid rule, nor make that rule unenforceable.” Thank you, Judge Sotolongo for demonstrating some independent thinking at the NLRB.

Almost concurrently at the time, a group of Whole Foods employees brought a lawsuit against Whole Foods stating its dress code policy was discriminatory and a violation of Title VII of the Civil Rights Act of 1964. This case is under appeal at the First Circuit Court of Appeals (Whole Foods Market, Inc. NLRB, No 01-CA-263079) because the complaint was dismissed by the Boston federal court Judge who said, “Whole Foods had legitimate business reasons to strictly enforce a dress code banning visible slogans or logos.”

Employers are advised to carefully (and consistently) administer their dress code policies when it comes to union organizing wear/gear. This type of “protest” is considered different and legal by the NLRB if the gear/wear supports union organizing.

In 2022 Tesla, Inc. sought to enforce its facially neutral dress code prohibiting non-conforming attire including union insignia and logos by its employees while at work. The NRLB held against that policy, stating that rule violated Section 7 of the National Labor Relations Act (NLRA). The current NLRB is reviewing dress code prohibitions under a pro-union rule that employers do not have the right to “interfere in any way” with an employee’s right to display union logos or icons unless they can demonstrate “special circumstances” justifying the interference.” Republic Aviation Corp v. NLRB 324 US 793 (1945).

Sources: Rueters. Whole Foods Beats NLRB Case Over Ban on Black Lives Matter Apparel (12/21/2023).

HR Dive Whole Food’s Ban on Black Lives Matter Gear Did Not Violate Workers’s Rights, NLRB Judge Says (12/21/2023)

AGC Newsletter NLRB Tightens Restrictions on Workplace Dress Codes (9/14/2022)