Whole Foods grocery workers claiming they were unfairly disciplined for wearing Black Lives Matter-themed pins, masks and other items in 2020 have lost a round in their complaint to the National Labor Relations Board.
Administrative Law Judge Ariel Sotolongo ruled that because wearing Black Lives Matter items was not connected to their jobs, punishment for doing so when Whole Foods managers said they could not was not a labor law violation, according to CNN.
The decision can be appealed to the board.
The ruling covered 14 employees in four states who said disciplinary actions Whole Foods claimed were violations of its dress code were retaliation.
“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,” the ruling said.
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The NLRB General Counsel argued that because Black Lives Matter was a movement opposing all racism, Whole Foods workers supporting it were opposing racism at work.
But Sotolongo said support for the movement was not linked to specifics at the various stores where employees worked.
“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,’” he wrote.
“The fact that WFM in the past had permitted and even supported employees donning messages [in support of] other social-political causes, such as the LGTBQ movement, does not support the implication that the banning of BLM messaging was racially motivated.
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“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.
Sotolongo said arguments that workers were supporting a goal related to their employment were a “helter-skelter, throw-mud-at-the-wall attempt at objectively establishing the mutual aid and protection goal of employees wearing BLM messaging by impermissibly weaving in multiple subjective motivation statements from a few select individuals.”
“Moreover, there are multiple reasons why these provided rationales are defective and unsupported by the factual record. First, most, if not all, of these rationales were proffered post hoc, days or even weeks after the employees started donning BLM messaging and the employer had informed employees that it was in violation of the dress code,” he wrote.
“As many of the on-line communications among employees contained in the record show, it wasn’t until after the employer started cracking down on such conduct that they started searching for a nexus to their employment that might provide legal cover,” he wrote.
The judge did rule that Whole Foods’ dress code from 2013 to 2020, which prohibited workers from wearing “any visible slogan, message, logo or advertising on them,” was too broad, CNN reported.
Whole Foods praised the ruling, while the lawyer representing the workers did not.
“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,” the company said in a statement, according to The New York Times. “We are pleased with the outcome of this case.”
Attorney Shannon Liss-Riordan said the ruling was wrong.
“If employees have a good-faith belief that they are taking an action to promote and to improve the terms and conditions of their workplace, that is protected activity,” she said.
