Whole Foods did not break the law by banning Black Lives Matter apparel, judge rules

Whole Foods did not act unlawfully by banning employees from wearing items with Black Lives Matter messaging, a judge ruled Thursday.

In late spring and summer of 2020, the United States was engulfed in Black Lives Matter protests in the wake of George Floyd’s murder.

Whole Foods team members at various stores began wearing buttons, clothing items, and mainly face masks with BLM messaging.

Whole Foods informed these team members that they were violating the store’s dress code, and they could either remove the BLM items or “clock out” and go home. Team members who chose to clock out racked up violations, or what the store calls “points,” leading some to get “discharged,” a term Whole Foods called resignations.

The first occurrence was at a store in Bedford, New Hampshire, followed by stores in Maryland, Indiana, Massachusetts, Pennsylvania, New Jersey, Virginia, Georgia, Washington and California.

“In many instances employees started donning BLM messaging, by wearing masks, pins or jewelry, after learning that employees in other stores were doing so — and in response to learning that employees were being told by (the store) that they could not do so,” NLRB administrative law judge Ariel Sotolongo wrote in the ruling.

The dispute isn’t about the dress code’s existence or whether employees were acting concertedly, but about whether this conduct is protected under Section 7 of the National Labor Relations, the judge said in his ruling.

Section 7 “protects the rights of employees to wear and distribute items such as buttons, pins, stickers, t-shirts, flyers, or other items displaying a message relating to terms and conditions of employment, unionization, and other protected matters.”

The NLRB General Counsel argued that the BLM movement extended to solidarity against systemic racism, which meant the employees were also standing with Whole Food’s Black employees and opposing systemic racism at work.

The judge ruled that it is not protected because employees were showing solidarity with the Black Lives Matter movement, without any goal related to their working conditions at the store.

“The fact that BLM may be a movement of great significance to African Americans, and that its goals are valid, does not mean that a rule prohibiting the displaying of such message at work is ‘racist,’ as some employees implied,” the judge wrote.

The judge added that even though Whole Foods had allowed, and even encouraged, donning messages in support of the LGBTQ rights movement, that doesn’t mean a separate crackdown on BLM wear was racially motivated.

“The evidence persuades me that the employer was merely trying to avoid controversy and conflict at its stores, which it believed BLM messaging would invite,” he wrote.

In a statement Whole Foods Market said, “our diverse culture continues to be a source of great pride for Whole Foods Market and we remain focused on creating both a safe and inclusive workplace for all. We are pleased with the outcome of this case.”

Attorney Shannon Liss-Riordan, who represented the Whole Foods Workers who filed the NLRB complaint, said they are exploring other options.

“We are disappointed in this decision. Unfortunately the ALJ did not take note of the charging parties’ argument that the workers were protesting Whole Foods’ negative response to their concerted activity,” she said.

However, Sotolongo did rule that the Whole Foods dress code in effect from 2013 to 2020 was unlawfully broad, because banning “any visible slogan, message, logo or advertising” could apply to union attire like pins and buttons.

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