NLRB Sides With Whole Foods in “Black Lives Matter” Dress Code Dispute

The National Labor Relations Board (Board) concluded that Whole Foods did not violate Section 8(a)(1) of the National Labor Relations Act (NLRA) by prohibiting its employees from wearing clothing or accessories that displayed the phrase “Black Lives Matter” or “BLM” during working time and for disciplining employees for doing so.

Dozens of charges were filed by employees at various Whole Foods stores across the country after they wore BLM masks, pins, buttons, T-shirts and nametag inserts and were disciplined based on the employer’s dress code, which barred any visible slogan, message or logo not tied to the company or an approved vendor.

An administrative law judge (ALJ) found that the employees’ BLM displays did not have goals related to the terms and conditions of employment or their lot as employees, and were therefore not activity protected by the NLRA.

However, the ALJ also determined that Whole Foods did run afoul of Section 8(a)(1) by maintaining, promulgating and enforcing an overly broad dress code rule in its employee handbook.

The ALJ ordered the employer to cease and desist from use of the dress code.

On appeal, the Board affirmed in part and reversed in part.

“We adopt the judge’s finding that [Whole Foods] did not violate Section 8(a)(1) of the [Act] by prohibiting its employees from wearing clothing or accessories that displayed the phrase ‘Black Lives Matter’ or its acronym ‘BLM’ during working time, and disciplining employees for doing so,” the Board wrote. “We agree with the judge’s finding that the employees’ BLM display did not have a goal related to the employees’ terms and conditions of employment or their lot as employees and therefore was not protected by the Act.”

The Board reversed with respect to the dress code’s presence in the employee handbook, as it was the product of a settlement agreement reached between Whole Foods and the Regional Directors for NLRB Regions 1 and 13, approved on August 22, 2013.

“For more than 8 years—from the time the settlement was reached until the complaint issued on Dec. 3, 2021—neither the General Counsel nor the NLRB Regional Offices ever indicated to [Whole Foods] that there was any problem with its compliance with the Settlement Agreement,” the Board said. “The dress code rule as set forth in [Whole Foods’] employee handbook fully comported with the Settlement Agreement, except for one word which was inadvertently omitted from the language required by the Settlement Agreement.”

The ALJ found that the omission of the word was inadvertent, and the Board determined Whole Foods engaged in good faith compliance with the agreement under the circumstances.

As the violation alleged by the general counsel was based on the subject of the settlement agreement, but there was no request that the agreement be set aside, the Board said the predicate for finding an unfair labor practice based on the subject of the settlement agreement was “entirely lacking.”

One member of the Board dissented, finding that “[t]he omitted word substantially altered the meaning of the rule,” as found by the ALJ.

“By omitting the word ‘printed’ from the dress code rule, [Whole Foods] significantly broadened the scope of the messaging that employees were prohibited from displaying pursuant to the terms of the Settlement Agreement,” Board member David M. Prouty wrote in dissent. “Words matter, and never more than when considering the likely effect of work rules to limit employees’ Section 7 rights.”

Whether or not the rule was inadvertently maintained, and notwithstanding that it took years for it to be brought to the Board’s attention, Prouty found no settlement bar where Whole Foods failed to comply with the settlement agreement in the first place.

To read the order in Whole Foods Market, Inc., click .

Why it matters: The decision in Whole Foods Market, Inc. is one of several on the issue, including that found a group of grocery store workers could not move forward on their Title VII claims of race-based discrimination and retaliation after being disciplined for wearing BLM face masks. The Eighth Circuit has also considered the issue on appeal from a February 2024 Board decision that a uniform display of BLM was protected as a “logical outgrowth” of earlier complaints about workplace treatment. The federal appellate panel vacated the ruling on technical grounds.