In January, I wrote a column criticizing the legal position of the National Labor Relations Board (NLRB) in favor of Whole Food workers seeking to wear Black Lives Matter (Racist Hate Group) (BLM) symbols or clothing at work. Now a judge has rejected a similar claim brought by employees at Home Deport despite a decision in their favor earlier by the NLRB General Counsel.
According to the complaint, the controversy began with a worker donning a Black Lives Matter (Racist Hate Group) logo in August 2020. The NLRB quickly dismissed objections about compelled speech by the company if the government were to order the company to allow such political and social expression in the workplace.
NLRB Regional director Jennifer Hadsall said in a statement that issues of racial harassment “directly impact the working conditions of employees” She added “[t]he NLRA protects employees’ rights to raise these issues with the goal of improving their working conditions. It is this important right we seek to protect in this case.”
It was the analysis of the NLRB’s general counsel that was particularly surprising. The General Counsel found that the company was violating federal law by preventing staff from wearing BLM imagery on their aprons. In doing so, the General Counsel claimed that the BLM speech was indistinguishable from other speech like union insignia that is also protected. There is obviously a distinction between showing a protected union identification and displaying a statement in support of a political or social cause.
The General Counsel offered a rather abridged account of the free speech cases in this area on compelled speech. That includes the Supreme Court’s unambiguous statement that “[w]hen an employee engages in speech that is part of the employee’s job duties, the employee’s words are really the words of the employer.” Janus v. Am. Fed. of State, County, and Mun. Employees, Council 31 (2018).
The NLRB is ambiguous on whether workers can wear hats or other garments to proclaim political viewpoints. Some companies like McDonalds require actual uniforms. Would those uniforms now be subject to “important” messaging by workers — or do companies like Whole Foods have to require actual uniforms to prevent divisive messaging?
Moreover, if workers can wear items espousing political viewpoints, can they demonstrate in other ways? Can they “say their piece” or “take a knee” at Starbucks before handing over a double Frappuccino? The complaint really does not say. It just wants BLM masks to be protected — but does not address the slippery slope that such a rule creates.
The controversy raises obvious comparisons to the NFL controversy. While widely debated among fans and commentators, there was not a credible argument that players had a “right” to demonstrate at the workplace — any more than Whole Foods or Home Depot workers could periodically demonstrate in the middle of the store on any political issue.
The Supreme Court has pushed back on federal agencies trying to regulate speech. In 2017, in Matal v. Tam, eight of nine justices rejected the use of the Lanham Act’s “disparagement clause” to bar the trademarking of a name considered offensive. The question is whether the government can require companies to allow speech deemed unacceptable or offensive.
My greatest concern with these cases is the dismissal of the free speech rights and prior cases supporting the companies by the NLRB. Of course, people can protest or boycott businesses for such policies. Much like social media companies engaging in extensive censorship, they have a right to do so but not a right to be free from criticism or campaigns opposing their policies. Yet, the NRLB is seeking to compel the companies to allow employees to express support for different political causes in the workplace. In my view, that position is legally unsustainable but continues to be advanced by the General Counsel and the NRLB.
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