A recent National Labor Relations Board decision is a reminder that consistency is an important factor in determining whether an employer has committed an unfair labor practice. In the case of two Kroger subsidiaries, the NLRB held that the National Labor Relations Act protects an employee’s right to wear buttons and masks in support of Black Lives Matter.

Section 7 and protected speech

In Eastex, Inc. v. NLRB (1978), the Supreme Court held that Section 7 of the National Labor Relations Act protected employee speech on political issues that have an impact on their well-being as workers. However, the court held that the scope of Section 7 is not unlimited and at some point the relationship between political speech and an employee’s work interests becomes too attenuated.

Kroger’s public messaging related to BLM 

In Summer 2020, after the murder of George Floyd, Kroger publicly expressed its support for the Black Lives Matter movement. Kroger produced a video, in which CEO Rodney McMullen declared that the Company was “against racism and injustice against the Black community.” The video prominently featured “Black Lives Matter,” “BLM” and other protest slogans supporting the ongoing racial justice protests around the country.

Employees show their support for BLM  

Around the same time, employees at locations in Washington began wearing homemade Black Lives Matter and BLM buttons and masks. Initially, their messaging appeared to align with Kroger’s public endorsement of Black Lives Matter. But, when customers began to complain, management told the employees their homemade buttons and masks violated Kroger’s dress code. Management then floated the idea of company-issued BLM buttons. But before Kroger could act, the Union distributed BLM buttons with the Union’s own insignia. Management initially permitted employees to wear the Union-distributed BLM buttons but, in the face of negative media attention, Kroger began enforcing its dress code and prohibiting all BLM buttons.

Consistency matters

The NLRB held that through “the ‘Black Lives Matter’ message on their work uniforms, the employees in this case acted to advance their interest—as employees—to an affirmatively anti-racist, pro-civil rights, and pro-justice workplace.” Fred Meyers Stores, Inc., 2023 NLRB LEXIS 207, *73 (NLRB May 3, 2023). This decision could have been reached by direct evidence that the employees faced workplace racism—whether from customers, co-workers or management. Thus, the pro-Black Lives Matter messaging by the employees was collective action protected by Section 7’s “mutual aid or protection” clause. But instead, the NLRB emphasized what it considered a lack of consistency by Kroger, including:

• Kroger’s public support for the Black Lives Matter movement and their encouragement of employee action (including as “disrupters”) did more than promote its own brand—it held itself out as a pro-BLM employer. Similarly, Kroger previously encouraged stores to be “accountability spaces” for other social justice movements. Therefore, the employees reasonably believed that they were celebrating their employer’s established workplace message.

• When management changed its position to prohibit the BLM messaging, then the employees protested the lack of corporate authenticity by continuing to wear the BLM buttons. This protest against “virtue signaling” created a “reasonable and direct nexus between the BLM message” and the employees’ interests.

• The NLRB rejected Kroger’s claim of “special circumstances” to limit the protected employee conduct. It found that management failed to consistently enforce the dress code, including allowing provocative messages such as PRIDE and pronoun pins. Also, three other store locations continued to allow the same BLM insignia. “This failure to follow through speaks volumes in terms of how necessary Respondents’ BLM ban actually was.” The NLRB also noted that Kroger failed to demonstrate that the employees’ protected BLM message interfered with Kroger’s professed corporate image.

Conclusion

The Fred Meyer Stores case should not necessarily discourage companies from engaging with difficult social issues. Rather, it serves as a reminder that best practice is to maintain clarity and consistency in employee policies. If a company maintains an employee policy, it should be enforced—and enforced in a consistent manner, both in terms of subject matter and geographically. Employee engagement is worth encouraging, but it is important to also consider possible secondary effects, especially regarding political issues.