NEW BRIGHTON, Minn.—In what could be a major ruling on freedom of speech inside the nation’s workplaces, the National Labor Relations Board decided, 3-1, on February 21 that Home Depot in New Brighton, Minn., illegally fired Antonio Morales Jr. for writing “BLM,” for Black Lives Matter, on his work apron.
Morales and several other workers “engaged in protected concerted activity” under labor law and thus could not be fired for it, especially since they were not only expressing solidarity with the Black Lives Matter movement, but also protesting discriminatory working conditions at Home Depot, Board Chair Lauren McFerran said.
“It is well-established that workers have the right to join together to improve their working conditions—including by protesting racial discrimination in the workplace,” McFerran explained. “It is equally clear that an employee who acts individually to support a group protest regarding a workplace issue remains protected under the law.”
“The board has long recognized” the National Labor Relations Act’s “protection of concerted activities …includes efforts by employees to protest and redress racial discrimination in the workplace,” the board majority said, citing a case from 1964.
“It can hardly be argued, given the history of race relations in this country, that alleviating racial discrimination is not of interest to all employees in the workplace, irrespective of [the] race or ethnicity of the person bringing the charge,” added McFerran.
Morales himself was thinking more of solidarity with other workers of color and customers of color when he stenciled the letters “BLM” in black on the front of his orange work apron, which he wore while serving customers in the Home Depot flooring department.
Morales had started at the New Brighton store less than three months after the infamous murder by Minneapolis police of Black man George Floyd, which touched off the whole mass Black Lives Matter movement nationally. Floyd was killed less than seven miles away.
Respect for all people
“The BLM marking meant respect for all people, especially Black people… It means Black Lives Matter,” Morales testified to the board’s administrative law judge at the hearing in the Twin Cities after he took his complaint to the Minneapolis regional NLRB office
“It’s a symbol of alliance. I have never seen it as something political myself. It’s something that I put on so that people know to approach me. I am a person of color myself so it’s a form of solidarity. It’s a way to keep—for people to feel safe around me.”
Trying to halt racism on the job is what Morales and the other workers at the New Brighton Home Depot store did, the board majority said. The letters on his apron were part of that.
But Morales’s stenciling of “BLM” violated the store’s dress code, managers added—even though they admitted they hadn’t done enough to stop the racism.
The racism on the job which Morales and his colleagues protested included vandalism of posters honoring Black History Month and months of derogatory remarks to co-workers and customers of color by worker Allison Gumm.
Managers warned and “counseled” Gumm, but didn’t fire her—and didn’t tell colleagues she was disciplined. The discipline didn’t succeed, either. The complaints by Morales and other workers, about racism at the store continued, too.
“There is no dispute Morales and other employees acted for ‘mutual aid or protection’ when they discussed their concerns about Gumm’s racially discriminatory conduct toward employees of color, the vandalism of the Black History Month materials, and the manner in which” Home Depot addressed those matters, as well as when they brought those concerns to management’s attention,” McFerran and the board majority wrote.
The workers—Morales and three others—”likewise acted for mutual aid or protection when they discussed and complained to management in October and November about Gumm’s race-based mistreatment of customers of color” and discussed it with other workers, too.
When managers gave Morales a one-day notice on removing the BLM letters, he responded on Feb. 19, 2021 by resigning after six and a half months on the job. He said the BLM letters on the apron were the best way to get the anti-racism message across.
Then he took the whole mess to the NLRB’s regional office in the Twin Cities, but its administrative law judge sided with Home Depot. The NLRB majority didn’t, calling Morales’s resignation “a constructive discharge” by the company—equivalent to illegal firing, under labor law, by forcing Morales to quit.
Home Depot managers “first directed Morales to remove” the letters from his apron. When he didn’t want to do so, they “constructively discharged him” for refusing. His refusal “plainly was a logical outgrowth” of the past racism on the job. “To the extent that a showing of employer knowledge of the concertedness of the display is required,” Home Depot “was on notice of that fact.”
The lone Republican NLRB member, former top congressional aide Marvin Kaplan, dissented. He said Morales and the other workers did not “engage in protected concerted activity…for the purpose of mutual aid and protection” under labor law.
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