Home Depot in trouble after Black Lives Matter dispute with worker

A Minnesota Home Depot Store broke the law when it told an employee to remove a “BLM” marking from their work apron, the National Labor Relations Board (NLRB) has ruled.

In a decision that provoked a strong dissent, the board majority said Home Depot also violated federal law by banning the employee from wearing the marking and constructively discharging him after he refused to remove it.

The ruling warns employers that when it comes to enforcing workplace dress codes (and treatment of employees in general), the current board majority takes a broad view of employer conduct that is prohibited by the National Labor Relations Act (NLRA).

Black Lives Matter and work aprons

In August of 2020, Antonio Morales began working as a sales specialist in the flooring department at a Home Depot in Minnesota. About three months earlier and less than seven miles away, Minneapolis police officer Derek Chauvin killed George Floyd.

Soon after the killing, several store employees wrote “BLM” on their work aprons, and Morales joined them when he started working there.

Morales, who identifies as Hispanic, Mexican and a person of color, said co-worker Allison Gumm subjected them, other co-workers and customers to racial discrimination. (The board’s decision uses “they/them/their” to refer to Morales, and we will do the same.)

For example, Morales said Gumm told Morales to keep a close eye on a Black customer because he was more likely to steal than others. Gumm also allegedly refused to help Morales with a rug and turned off their work computer for no reason. Morales and co-workers repeatedly complained to supervisors and managers about Gumm’s alleged misconduct.

Black History Month display gets vandalized

In February and at the store’s request, Morales and other employees put together a display to observe Black History Month. After the display was vandalized, a manager sent an email saying that the damaged items would be replaced, while adding that “intolerance and disrespect will not be tolerated.”

Morales did not think the email went far enough, and they told the manager that a “storewide conversation” was needed so that people of color would feel safe at the store.

The manager disagreed, and the display was vandalized again in mid-February. This time, a manager sent an email telling employees to be “aware of the pictures” on the display.

Morales and other employees continued to believe that management was not doing enough, and Morales emailed a manager encouraging him to “open the floor for a wider discussion.”

On the same day that they sent that email, Morales was called to meet with management. At that meeting, a manager told Morales that the BLM initials on their work apron violated the store’s dress code for employees. The manager told Morales that they could not return to work until the initials were removed.

Management: Take it off

A district manager and a human resources manager followed up with Morales the next day, repeating that Morales could not work unless they removed the initials from the apron. Morales refused to do so and resigned.

When the matter reached the NLRB for consideration, an administrative law judge ruled in Home Depot’s favor. The matter then advanced to the full board for further review.

A majority of the board decided that Home Depot violated the NLRA by telling Morales to remove the BLM marking from their work apron, applying its dress code policy to ban Morales from displaying the BLM marking, and constructively discharging them from employment.

Morales’ refusal to remove the BLM marking from their work apron was “protected concerted activity,” the majority decided. The NLRA protects employees engaged in concerted activities for “mutual aid or protection,” it said, and Morales’ conduct fit that bill.

Protected activities

Morales and co-workers engaged in protected activities when they discussed Gumm’s alleged discriminatory conduct and complained to management about it, the majority said, and Morales acted for mutual aid or protection when they discussed Gumm’s alleged misconduct with co-workers, complained about it to management, and insisted on displaying the BLM marking.

Morales’ refusal to remove the marking, the majority said, “was directly related to their broader effort to improve terms and conditions of employment or otherwise improve their lot as employees.” (Internal citation omitted).

Home Depot did not show there were any special circumstances that justified its ban on the markings, the majority added. It also rejected Home Depot’s argument that being forced to allow the markings was compelled speech in violation of the First Amendment.

The board ordered Home Depot to offer Morales reinstatement and pay them for any loss of earnings and other benefits that resulted from their constructive discharge from employment. Home Depot was also ordered to pay Morales for any other monetary harm, such as search-for-work expenses and “interim employment expenses.”

Dissent: Context matters

A strong dissent argued that Home Depot did not violate the NLRA because Morales’ BLM display was about the George Floyd killing – and was not directly related to the alleged discrimination at work.

“[A] reasonable person with knowledge of the relevant facts would have been far more likely to link Morales’s display of ‘BLM’ with that organization or movement than with improving terms and conditions of employment within the [store where Morales worked],” the dissent said.

Home Depot U.S.A.  Inc. and Antonio Morales Jr., No. 18-CA-273796 (NLRB 2/21/24).