Divya Nimmagadda is a student at Harvard Law School.
In today’s labor news, NLRB orders Home Depot to reinstate employee fired for wearing BLM logo, and Senate headed to another vote on acting Secretary Su’s nomination.
Antonio Morales was working as a sales specialist at the New Brighton, Minnesota location of Home Depot in 2021. During his time at Home Depot, Antonio and their coworkers were subject to discriminatory action by a coworker, and their efforts to raise awareness about Black history and culture during Black History Month were met with repeated vandalism. Morales and others persistently asked management to respond to these incidents by pursuing a private investigation and opening up a “store wide discussion” about the company’s values and policies. In the midst of these requests to management, Morales was called into the store manager’s office and told that the “BLM” initials on the orange uniform apron was against the dress code and company policies. After being told that they could not return to work if they continue to sport such an apron, Morales resigned. The Minneapolis regional office of the NLRB filed a complaint against Home Depot.
The administrative judge that heard this case determined that the worker’s action was not protected because it was not specifically tied to or being used to protest a workplace grievance. On Wednesday, the NLRB reversed this earlier judgement, holding that Section 7 of the NLRA guarantees the right of workers to take part in “concerted activities” for “mutual aid and protection.” Given the history of racially targeted incidents at the location, the Board characterized the worker’s refusal to remove the BLM initials as “concerted activity,” to protest against racial discrimination in the workplace. Therefore, Home Depot was held to have violated Section 8(a)(1) by using their dress code to make Morales’ employment contingent on removing the marked apron. The Board ordered Home Depot to reinstate Morales, provide backpay, and cease-and-desist from applying their dress code policy in a manner restricting NLRA protected activity. Home Depot has the option to appeal the Board’s ruling to a federal appeals court. It remains to be seen whether the holding of this case will be confined to its facts or held to create a new level of protection on employee concerted activity at work, especially given the number of other cases in front of the Board on this matter. Not too long ago, an administrative judge held that Whole Foods had not violated employee labor rights by disciplining them for wearing accessories with the “BLM” slogan since wearing such apparel was not connected “with their employment or working conditions.”
In other news, the Senate Committee on Health, Education, Labor and Pensions will vote on Feburary 27th on Julie Su’s nomination as Labor Secretary. Her nomination has been stalled – since February, 2023 when President Biden first nominated her to the role – in large part due to Republican and Senator Manchin’s public opposition.
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April 24
NLRB seeks to compel Amazon to collectively bargain with San Francisco warehouse workers, DoorDash delivery workers and members of Los Deliveristas Unidos rally for pay transparency, and NLRB takes step to drop lawsuit against SpaceX over the firing of employees who criticized Elon Musk.
April 22
DOGE staffers eye NLRB for potential reorganization; attacks on federal workforce impact Trump-supporting areas; Utah governor acknowledges backlash to public-sector union ban
April 21
Bryan Johnson’s ULP saga before the NLRB continues; top law firms opt to appease the EEOC in its anti-DEI demands.
April 20
In today’s news and commentary, the Supreme Court rules for Cornell employees in an ERISA suit, the Sixth Circuit addresses whether the EFAA applies to a sexual harassment claim, and DOGE gains access to sensitive labor data on immigrants. On Thursday, the Supreme Court made it easier for employees to bring ERISA suits when their […]
April 18
Two major New York City unions endorse Cuomo for mayor; Committee on Education and the Workforce requests an investigation into a major healthcare union’s spending; Unions launch a national pro bono legal network for federal workers.
April 17
Utahns sign a petition supporting referendum to repeal law prohibiting public sector collective bargaining; the US District Court for the District of Columbia declines to dismiss claims filed by the AFL-CIO against several government agencies; and the DOGE faces reports that staffers of the agency accessed the NLRB’s sensitive case files.