A recent National Labor Relations Board (NLRB) decision provides an important perspective on the boundaries of what constitutes “mutual aid and protection” under Section 7 of the National Labor Relations Act (NLRA).

In the recent case Home Depot USA, Inc. (Home Depot), the NLRB reversed an Administrative Law Judge decision that found the employer had not violated employee Section 7 rights when it enforced its uniform policy and required employees to remove ‘BLM’ – the Black Lives Matter acronym – from their uniforms.[i]

In a 3-1 decision reversing the prior ruling, the NLRB found that the employer’s actions had violated Section 7 rights because adding the acronym to their uniforms – an act viewed as being undertaken for mutual aid and protection – was a logical outgrowth of concerns expressed by employees in support of themselves and others who had made allegations of race discrimination over the preceding months.

Section 7 protects employees when they engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Individual motivations are irrelevant in terms of determining the scope of Section 7 protections; what is crucial is that the purpose of the conduct relate to collective bargaining, working conditions and hours, or other matters of ‘mutual aid or protection’ of employees.

In defending its position, Home Depot first argued that adding the BLM acronym violated its uniform policy. This argument was found to be unpersuasive because it could not show how adding the acronym was any different from the other ways employees were encouraged to personalize their work uniforms.[ii] Other arguments associated with non-specific threats to the safety of employees and the public as well as allegations that the acronym had the potential for controversy were also ineffective. When it comes to assessing the potential for controversy, the NLRB has long held that the lawfulness of the exercising of rights under the NLRA, including issues as controversial as union-button wearing, does not depend on its acceptance by others.

What Does it All Mean

Although the NLRB’s Home Depot decision seems to broaden existing limits on what constitutes concerted activity, it does stop short of an expansion that would see the protesting of civil rights issues on the job as inherently concerted under Section 7. Instead, with Home Depot’s fact-based emphasis, the NLRB seems to signal a move toward a more case-by-case focus when it comes to deciding future civil-rights focused complaints.

Key Take Away

As we head into an election year and with union organization activities on the rise, it is important for employers to proceed with caution and seek legal counsel before strictly enforcing any company policies that outright prohibit or could be perceived as prohibiting potentially controversial messages.

[i] Home Depot uniforms consist of an orange apron worn over the employee’s clothing.

[ii] Employees are encouraged to personalize their aprons by adding written messages, images, and other elements. Mentioned in the case were examples of extensively personalized aprons with large, colorful, and expansive designs, including LGBTQ Pride symbols, the Pan-African flag colors, holiday symbols, and insignia and slogans of professional or college sports teams.