A National Labor Relations Board judge has ruled to dismiss a case filed by a Home Depot employee who alleged the company wrongly banned workers from wearing the Black Lives Matter slogan on their aprons.

An employee at a Minnesota store first filed a complaint against the home improvement company in March 2021, after allegedly being suspended, and later resigning, for having the phrase on their uniform.

NLRB lawyers became involved in August 2021, arguing that Black Lives Matter should not fall under The Home Depot's uniform policy, which bans political or religious messages "unrelated to workplace matters" from employees' aprons, or elsewhere on their clothing.

The employee was "required to choose between engaging in protected concerted activity, including displaying the 'BLM' slogan, and quitting employment," the complaint said.

The NLRB defines concerted activity as any action taken with coworkers in an effort to improve working conditions, including talking with coworkers about earnings, petitioning for more hours and speaking with media or government agencies about workplace issues.

Judge say lawyers representing worker did not support their argument

Lawyers representing the former Home Depot employee did not argue whether BLM was political messaging, but rather that not allowing employees to display the slogan on their aprons interfered with their right to concerted activity.

NLRB Judge Paul Bogas wrote in his opinion that the plaintiffs had not sufficiently reasoned their argument. In order to meet the standard of concerted activity, the prohibited messaging has to be a group effort and a means of improving working conditions, he said.

"Rather, the record shows that the message was primarily used, and generally understood, to address the unjustified killings of Black individuals by law enforcement and vigilantes," Bogas wrote. "A message about unjustified killings of Black men, while a matter of profound societal importance, is not directly relevant to the terms, conditions, or lot of Home Depot's employees as employees."

However, the company does encourage employees to personalize their aprons with names, doodles and other additions.

"The record shows that the additions employees make to the aprons are sometimes extensive," Bogas said.

The employee, who worked at the store from August 2020 to February 2021, wore the slogan on their apron for the duration of their employment, Bogas said.

The store is located in New Brighton, Minnesota, nearly 12 miles from Minneapolis, where George Floyd, an unarmed Black man, was killed by police in May 2020, sparking nationwide protests.

The employee said that Floyd's death, as well as racist behavior from a coworker — such as making stereotypical remarks and being unhelpful to Black and Hispanic customers — sparked the donning of Black Lives Matter on the apron.

"It's a symbol of alliance," the employee testified. "I have never seen it as something political myself. It's something that I put on so that people know to approach me. I am a person of color myself, so it's a form of solidarity. It's a way...for people to feel safe around me."

Judge says documents submitted represent the BLM discourse

Lawyers for both The Home Depot and the NLRB submitted documents and news articles with different interpretations of what the Black Lives Matter saying and movement means.

Home Depot, Inc. said the BLM movement has caused infighting within the company and "occasioned civil unrest in the vicinity of the New Brighton store and elsewhere," according to Bogas' opinion.

Bogas wrote, though, that none of the documents submitted "are representative of the public discourse on the meaning of Black Lives Matter/BLM or were authoritative regarding either what that phrase encompasses or everything the Black Lives Matter organization or movement does, or does not, support."

The employee said they were told by a district manager that if she allowed them to keep BLM on the apron, she'd also have to allow employees to wear a swastika in fairness.

Two other employees at the store were asked to remove BLM messaging, and one employee was asked to remove "Thin Blue Line" messaging. They all complied and returned to work.

The employee in the complaint refused to remove the messaging, and the district manager offered up alternative wording, such as "diversity," "equality" or "inclusion."

That employee, "... agreed that there were 'plenty of other ways' to express support for racial justice, but that insisting on continuing to wear the BLM message was 'the best way,'" Bogas wrote.

The employee said he was willing to be fired and later resigned.

Home Depot has said it interprets its policy of not allowing political messaging on its uniforms to include Black Lives Matter, but that the rule was not communicated to management at the Minnesota store, according to Bogas.

Bogas did say the employee engaged in protected activity by discussing and emailing with team members about racist allegations about a coworker.

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