By Michael Burns, courtesy of SBAM Approved Partner ASE

Employers on the other hand often have policies that restrict employee communications of political views unrelated to organizing. These policies can prohibit wearing of badges, buttons, tee shirts, and other items that communicate a political message in the workplace.

Wholefoods, a well-known grocery chain, has a company dress code that is intended to reflect their organization’s brand and customer services. It prohibits the wearing of any emblems and such stating a political position. All employees must follow this policy. Enter Black Lives Matter (BLM). Some employees started wearing masks and other items supporting BLM. Wholefoods disciplined those employees for deviating from their company dress and disciplinary policy prohibiting such activity.

Enter the National Labor Relations Board (NLRB). The NLRB, charged with enforcing the NLRA, has taken up the employee claims that the rules prohibiting wearing of political messaging or any other items contrary to the company’s policies is a violation of their right to engage in protected concerted activity. This issue addresses a legal protection that employers may not impinge on employees’ right to organize. However, and per NLRA precedent, wearing of general speech items does not directly apply to political speech.

Under the Biden Administration’s NLRB this agency wants to expand the NLRA to cover racial justice issues as tied directly to an employee’s right to organize and engage in protected concerted activity. More specifically the NLRB and Jennifer Abruzzo, its General Counsel, are trying to conflate employees wearing of emblems with political messages into employees’ organizing rights. Previously considered two different issues under the NLRA.

Not any longer according to Ms. Abruzzo. She argues that workplace relations are often tied to race. Therefore, she argues that if workers’ concerted actions are tied to racial inequality, bias, or discrimination, but their employer enforces a rule such as prohibiting such speech, the NLRB will prosecute such actions.

But how does the NLRB tie general political speech, that employers may have a policy on, to speech that is protected under the NLRA? That is the big question. Racial justice, though an admirable issue to have an opinion on, has not legally been considered a topic tied to the right to engage in labor organizing activity.

General Counsel Abruzzo says that speech that promotes racial justice is protected as “concerted activities for… mutual aid and protection” and therefore acts by employers prohibiting or restricting such activity is illegal.

This runs into a tricky legal issue that case law under the NLRA has not supported in the past. This is important because the NLRB does not have the final word as to interpretation of the National Labor Relations Act. Federal courts do, and they have seen it differently in the past.

“For any of these cases to be successful, there has to be a very clear articulation of the relationship between racial discrimination and employees’ terms and conditions of employment,” said Michael Duff, a University of Wyoming College of Law professor and a former NLRB staff attorney. “If the theory is that because employees have BLM masks, that’s the first step to them engaging in more classic labor activity, I think you’re going to have a problem with that in the circuit courts,” he said. “You need facts to demonstrate that this is a real precursor to activity that is clearly protected and concerted.”

Legal experts believe that in order for the NLRB’s argument that racial justice speech is protected by the NLRB, the facts of the case would have to be very specific. The protected speech addressing racial justice would have to be shown to very closely related to the NLRA’s intent of “reducing the potential of labor strife and maintaining industrial peace in order to protect interstate commerce.” Where the counterargument will be “no you are trying to expand the scope of the NLRA to issues of racial discrimination.” That is not what the NLRA is for. We have other laws to protect against racial discrimination in the workplace.

That would make sense to labor traditionalists; however, the argument to counter the above is, “Yes but the NLRA has been used in the past to prevent and prohibit discrimination by unions and employers against workers belonging to certain races and therefore today protecting worker speech on race is just an expansion of that purpose.”

As ASE has reported in past recent articles, the NLRB is addressing many employer rules/policies that have been seen as having a different purpose than impinging on organizing rights. The above change to NLRB enforcement policy pertaining to dress code rules will again force employers (union and non-union) to review and perhaps modify their policies and practices to avoid an NLRB unfair labor practice charge against them.