It would seem at first blush that an employer would have certain prerogatives as to directing the attire worn by employees on the job. But Jennifer Abruzzo, general counsel of the NLRB, disagreed when it came to Whole Foods employees wearing Black Lives Matter masks.
In a Dec. 17 filing with the National Labor Relations Board, Whole Foods denied the agency general counsel’s allegations that the company violated federal labor law by banning employees from wearing “Black Lives Matter” insignia and punishing staff around the country who did. The filing is a response to the labor board’s accusation that by prohibiting Black Lives Matter messages at work, the company interfered with employees’ rights under the National Labor Relations Act to engage “in concerted activities for their mutual aid and protection.”
The rationale was that the message on the masks was protected concerted activitiy under Section 7 of the Wagner Act.
Abruzzo, appointed by President Joe Biden, has argued that “racial justice advocacy” by workers such as displaying a BLM slogan at work falls squarely within the scope of what she called the “group action to improve their lot as employees” that the 1935 labor law protects. “The employer certainly can control whether people of color get harassed and discriminated against at their workplace,” she said in an interview last month. Workers, Abruzzo argued, can say, “We’re about a broader movement. But that broader movement flows into our smaller workplace universe.”
In opposition, Whole Foods, which is owned by Amazon, contends that this not only violates its copyrighted uniforms, but forcing the company to allow its employees to wear this political message is compelled speech.
Whole Foods counters that it’s the one whose rights are being violated. The company’s filing, obtained via a Freedom of Information Act request, accuses the labor board’s general counsel, Jennifer Abruzzo, of trying to unconstitutionally “compel” speech by Whole Foods in violation of its First Amendment rights. The upscale grocer also accuses her of “unlawfully infringing upon and/or diluting WFM’s protected trademarks” by trying to mandate that it allow the display of a “political message in conjunction with” its trademarked uniforms and logos.
More to the point, Whole Foods argues that while Section 7 permits employees to take collective action on matters relating to pay and working conditions, the BLM message is not protected actvity.
Whole Foods contends that Section 7 of the NLRA, which protects employees’ right to take collective action related to working conditions, doesn’t extend to workers’ BLM messages, which it calls “political and/or social justice speech.” The company’s filing argues that “BLM” and related phrases “are not objectively understood to relate to workplace issues or improving working conditions at WFM’s retail grocery stores” or employment terms and conditions in general. “Employees do not have a protected right under Section 7 of the Act to display the phrase ‘Black Lives Matter’ or ‘BLM’ in the workplace,” the company’s attorneys wrote.
Is Whole Foods wrong to want its staff to wear its chosen work attire unadorned by political messages? Is the workplace the right place for employees to offer their racial justice views? Section 7 provides:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….
While wearing BLM masks has nothing to do with collective bargaining, it could well be construed as concerted activity for mutual aid or protection. Of course, the same argument could be made if employees wore NRA or KKK masks, political party masks or any mask conveying a message that could arguably serve the employees’ interests.
If the message on the mask was pro-union, it would still conflict with the employer’s desired uniform appearance, but there would be little question that it was protected activity under Section 7. Is BLM of the same sort, or does this go too far? If employees are allowed under the Wagner Act to wear BLM masks in conflict with their employers’ uniform choices, what limits would there be as to other political or ideological messags? And if it’s fine on masks, is there any reason it wouldn’t be just as acceptable elsewhere on the employees’ clothing?
*Tuesday Talk rules apply.
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So, hypothetically, if I worked for Whole Foods I should be able to wear a “White Lives Matter” face mask? What about a White Power face mask? Or are only politically correct slogans allowed?
Seems like the Law Of Unintended Consequences would come into play — All we wanted was to protect OUR peoples’ right to free speech, and now we’re up to our asses in lawsuits.” (Or alligators, for those who remember the original quote). ?
It is difficult to have much sympathy for those burned by flagrantly obvious unintended consequences.
“We want to wear this ‘Blue Lives Matter’ mask because it signals to police that they are welcome here, which clearly improves our safety in the workplace”.
If a cashier can wear a BLM mask (or button), why not a flight attendant? Or Mickey Mouse while walking around Disney World?
I can’t believe I’m about to say this, but I’m going to take Amazon’s side on this one. But also, this story reminded me of one of the best movies of all time.
Hope my video will be permitted for Tuesday Talk:
[youtube https://www.youtube.com/watch?v=_ChQK8j6so8&w=560&h=315%5D
And this is consistently collective how? Naturally, I’m taking the employees’ side of things. BLM being as non-descript as it is very well could be the same as wearing a pro-union message. It would take more words to connect the ideas, but you didn’t offer me any grist as you admitted you’d submit to our new overlords who will stop at nothing more than complete control. I’d have them all wearing Eugene Debs’s face on their masks to make the situation clearer, but I don’t speak for these employees.
My response is likely to be unsatisfying as it does not wade into the question of Labor vs. Capital in spite of my own collectivist leanings.
First, I’m responsible for a corporate brand identity and it takes a tremendous amount of thought, effort, and money to manage. Whole Foods uniforms are part of their brand identity and if working at Whole Foods means you agree to wear a Whole Food uniform, Whole Foods shouldn’t have to litigate compliance.
Second, as pointed out, it’s likely people I disagree with will figure out how to use this to spread messages I don’t like.
The phrase “corporate brand identity” is vulgar. I have nothing nice to say about that entire paragraph and will type this instead of what I really think because I’m a mean jerk and it’s more about me than you.
What Jake doesn’t like shouldn’t factor into matters of policy.
Your response is dissatisfying in the extreme. You didn’t even try to say anything about being consistently collectivist a mere week after declaring yourself so. Here, I expected to have to defend Bezos which might have been interesting, but instead you offer this idiosyncratic nonsense. I’m trying to find a silver lining but can’t.
Ah well, I had a feeling you’d be disappointed. I’m sorry an organization’s brand is meaningless to you. Despite having to think about the topic in my career, I find it somewhat ephemeral too, though not vulgar.
I just don’t see how an individual’s decision to take a job where one of the requirements is to be a brand ambassador factors into the eternal struggle. It’s the wrong venue and cheapens the discourse.
An organization’s brand and its efforts to maintain it are repugnant to me, not the efforts of the individuals paid to do the work required to make it happen. I didn’t mean to insult you and your work by attacking the idea and seeming hyper focus on “brand identity”. I am sorry.
Wage slaves must work to survive. If you have skills in demand, great. I wouldn’t stop anyone from using what they have to make the best life they can. For all my negativity and doom and gloom, I would still encourage everyone to make the best of what they’ve got.
Back to the topic, I was trying to get you to say something about how the BLM expression could be tied to labor organization even if it wasn’t in as lawyerly a fashion as Skink might have wanted. I didn’t really want you to just give up on that point by saying that the connection was so weak that even people Jake doesn’t like would get to wear whatever they wanted too.
Eugene Debs? Okay then…so David Dukes face on a mask will be okay, too?
An employee’s political leanings should never be emblazoned on any work attire, be it t-shirts, hats or masks. Don’t corporations have a right to protect their public image?
What’s next, having to allow employees to plan their next protest on company time?
Yes. That’s next and more. David Dukes is fine if that’s what people want to wear, though his connection to labor organization is more tenuous than with Debs. A pro-union stance is a political leaning which is already allowed and we should protect workers right to organize vigorously or else any hope of bargaining collectively will be crushed. This is how to be consistently collectivist.
What’s next after that?
It will hit twitter, Amazon will reverse course, and “social justice” movements will continue their drift toward becoming the latest conservative institutions.
Pen and phone strikes again.
Most immediately, it seems like this would require employers to allow anti-vax employees to wear anti-vax messages at work, since vaccination status in the workplace is currently a highly contested topic and concerns the rights of employees vs. the rights of employers. This is a separate matter, of course, from whether the employer can require the employee to be vaccinated. But regardless of whether an employee is actually vaccinated, customers are likely to interpret employees with anti-vax messages as the employee in question being unvaccinated, causing issues with customers.
I sympathize with commenters’ points about corporate identity and unintended consequences. But Abruzzo’s interpretation of the language in section 7 seems like a reasonable reading to me. I’m not really sure why those five words were inserted into a section that is otherwise entirely about collective bargaining rights, but that’s what the statute says. Surely the legal issue is the correct interpretation of the statute, and not all that other stuff.
The issue is more that, if Abruzzo’s reading is a reasonable interpretation of Section 7, it doesn’t have much of a limiting principle, and administrations can’t pick and choose what’s ok to force employers to accept (BLM in this case) and what’s not (MAGA hats, anti-abortion apparel, etc), due to the First Amendment. Non-lawyer Skink has the right reaction down below, that this is a very expansive reading that would allow for selective enforcement. This seems like the NLRB general counsel behaving similarly to the “progressive prosecutor” DAs we’ve seen, where they take laws they like, read them expansively and/or creatively, then enforce selectively, coupled with not enforcing the laws they don’t like, or at not enforcing them against parties and causes they like.
Rengit–Nice to see you. Ima lawyer. I’m okay at what I do, most days.
Sorry Skink, I was a little surprised because I had thought you were a lawyer based on your past comments, but I misread your comment about “non-labor lawyer” as “non-lawyer.” Reading too fast, thank you for the correction.
As a free speech libertarian I’d love to be against Amazon on this one, but it seems pretty obvious that employees can’t advertise divisive political slogans while on duty, especially if they are customer-facing.
It appears that the proponents of this haven’t thought it through. Do they really want to go to all of this trouble to give Trump (or the next boogeyman) supporters the right to wear MAGA hats at the Whole Foods cash register?
It seems lawyers are taking the day off. For this non-labor lawyer who went reading the Act, two things stick out. First, no lawyer that ever interpreted a statute could conclude as does the general counsel. The rules of statutory interpretation exist with just cause. At least three would have to be pretzelized to come to her conclusions. Even the policy statement in the Act and NLRB’s own position statements and explanations are counter to an such an expansive reading of a law that applies to union activity and working conditions in the ordinary sense. Again, no labor lawyer, so I’m open to learnin’.
Second, I get that the Board is appointed by the President and there is A&C by the Senate, but it’s the same cabinet-like procedure for the general counsel. That’ll make me go looking for why.
And this is what our tax dollars pay for. Woke bureaucrats mandating workplace attire. SMH
The filed complaint smacks of the worst kind of jailhouse lawyering imaginable. It offers an interpretation so expansive as to be well outside the realm of the statute’s focus on collective organizing.