Dive Brief:
- The National Labor Relations Board erred when it determined Home Depot violated the National Labor Relations Act by requiring an employee to remove a Black Lives Matter display from their apron, the 8th U.S. Circuit Court of Appeals determined Thursday.
- Appealing to the 8th Circuit, Home Depot argued — and the circuit court agreed — that the “special circumstances” exception to the NLRA applied due to the context of the message. The doctrine permits employers to bar otherwise protected messages when they conflict with legitimate business interests.
- The 8th Circuit vacated the NLRB’s opinion and order and sent the case back for further proceedings.
Dive Insight:
Home Depot petitioned for the 8th Circuit’s review following the NLRB’s Feb. 21, 2024, decision, which held that the worker’s BLM marking was tied to previous employee protests about racial discrimination in the workplace and employees’ working conditions.
The 8th Circuit disagreed, finding that the context of the situation warranted Home Depot’s decision. The store in question is located in New Brighton, Minnesota, fewer than seven miles from the spot where George Floyd was murdered, the court pointed out. The employee was asked to remove the marking in early 2021, when protests were ongoing and around the time of the Minneapolis trial of police officer Derek Chauvin, who was convicted for the murder.
The 8th Circuit drew on the description of an administrative law judge who sided with Home Depot before the Board took on the case, pointing out that unrest related to the murder was “visible directly outside the store,” and that another store in the same shopping center was looted. On two occasions, Home Depot had to close the store due to unrest.
“Context matters,” the court said, arguing the worker’s insistence on wearing the message “posed a clear risk to customer and employee safety.”
While the court acknowledged the racial problems at the store — including issues with a specific employee who engaged in “racially discriminatory conduct” and someone’s vandalization of a Black History Month display in the break room — it pointed to “substantial evidence” that Home Depot attempted to “root out racism at the store.”
The problematic employee, for example, was confronted, corrected and ultimately fired. Management also “expressed a desire to retain [the worker’s] unique perspective and passion for improving the workplace regarding racial sensitivity” and encouraged them to help create DEI working groups.
The store also suggested a variety of other, similar messages the worker could wear on their apron, including a diversity, equity and inclusion pin or a “respect for all” pin, the 8th Circuit said. It also similarly barred divisive messaging that countered the BLM message, including “Blue Lives Matter” and “Thin Blue Line” messages, the court said, suggesting hot-button political messages were “evenly restricted” across the board.
Ultimately, “conditions facing the New Brighton Store at this time gave rise to legitimate safety concerns,” the court said. “This was a business decision made to preserve the store’s apolitical face to customers and safeguard employee safety in a risk-filled environment.”
