8th Circuit sides with Home Depot in ‘BLM’ apron dispute

Listen to this article

A Home Depot employee filed an unfair labor practice charge after being asked to remove the letters “BLM” from their apron. Disagreeing with the NLRB, the 8th U.S. Circuit Court of Appeals found in an opinion filed Nov. 6 that the company had a legitimate business reason for prohibiting the display of the slogan.

Home Depot employees wear orange aprons that they are allowed to customize with pins, illustrations, and written messages. However, they are prohibited from displaying causes or political messages that are unrelated to the workplace.

Former Home Depot employee Antonio Morales (who now goes by Caro Linda Bo and uses they/them pronouns) worked at the New Brighton, Minnesota, store. Three months before Bo was hired, George Floyd was murdered just a few miles away from the store. Bo, joining other Home Depot employees, wrote “BLM” (Black Lives Matter) on their apron. They stated that they did this because they wanted to be “approachable” by displaying a “symbol of solidarity” against racism.

Additionally, other events at the store caused Bo and other employees to be concerned. A Home Depot employee had engaged in racially discriminatory behavior toward both customers and employees of color. Additionally, a Black History Month display was vandalized twice.

Bo felt that the store’s response to the vandalism—an email reporting the incident to supervisors—was inadequate. Rather, Bo felt that there should be a storewide conversation to make employees feel safe. After the second vandalism incident, Bo again raised a call for a storewide discussion.

Management met with Bo to discuss their concerns. During that meeting, the managers noticed “BLM” on Bo’s apron. They let Bo know that this violated the dress code policy because it was a social or political cause and needed to be removed. Instead, management floated wearing a diversity, equity and inclusion pin.

In a subsequent meeting, Home Depot’s district manager informed Bo that writing BLM on the apron was unacceptable and that permitting Bo to do so would mean that the store would have to allow swastikas to be drawn on aprons. Home Depot had also barred employees from displaying “Blue Lives Matter” on aprons and clothing in the workplace.

Bo refused to remove the BLM lettering from their apron. The next day, Bo resigned. Bo filed an unfair labor practices charge with the NLRB.

Employees have a legal right to engage in “concerted activities” for the purpose of “mutual aid or protection” under Section 7 of the National Labor Relations Act. Bo asserted that Section 7 protects the activity of displaying “BLM” on an apron.

Home Depot, as well as an administrative law judge (ALJ), found that writing BLM on the apron was not “concerted activity.” The National Labor Relations Board’s general counsel filed exceptions to the ALJ’s decision.

In a 3-1 decision, the NLRB expanded protection of employee speech. It maintained that Bo’s refusal to remove the writing was “concerted” and that it was a “logical outgrowth” of previous employee protests of racial discrimination.

“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,” NLRB then-Chairman Lauren McFerran stated. “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 offer Bo reinstatement and provide back pay, as well as compensate Bo for any adverse tax consequences.

But in his dissent, Marvin Kaplan, who is now Board Chairman, reasoned that there was not a connection between displaying “BLM” on an apron and the store’s working conditions, but was rather a response to Floyd’s murder. He found that Bo’s conduct was focused on “combating police violence against Black individuals” rather than “improving terms and conditions of employees.”

The 8th Circuit assumed without deciding that the board correctly determined that Bo’s actions were protected under Section 7. However, it found that Home Depot had a legitimate and substantial business justification when it ordered Bo to remove “BLM” from the apron. It determined that allowing the apron was a “clear risk to customer and employee safety.”

“Home Depot did not attempt to prohibit the substance of Bo’s message,” Judge James Loken wrote for the panel. “It sought to limit display of Bo’s opinions on the employer-required uniform to less politically charged messaging.”

“Context matters,” Loken added. “The activity in dispute was not a display at a random location in the United States; it was not at a normal moment in time.”

Serving on the panel with Loken were Judges Ralph Erickson and Jonathan Kobes.