The Home Depot (18-CA-273796)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

S.A.M.

DATE:

September 9, 2021

TO:

Jennifer Hadsall, Regional Director

Region 18

FROM:

Richard A. Bock, Associate General Counsel

Division of Advice

SUBJECT: The Home Depot

Case 18-CA-273796

506-2001-5000

506-4033-5500

506-6090-3200

The Region resubmitted this case for advice as to whether it should allege, as an

alternative to its primary argument that the Charging Party concertedly wore a Black

Lives Matter (BLM) slogan on his apron, that his conduct in wearing the slogan was

protected under the Board’s doctrine of “inherently concerted” activity. We conclude

that employee discussions in the workplace regarding racism should be deemed

inherently concerted because systemic racism, including an employer’s racial

discrimination or racial harassment, and/or tolerance of such discrimination or

harassment, necessarily implicates significant terms and condition of employment

and is of vital importance to employees. We further conclude that the Region should

urge the Board to expand the circumstances under which it applies the inherently

concerted doctrine beyond a conversation between two people to include the wearing

of a slogan or button. Thus, the Region should argue, in the alternative, that the

Charging Party’s individual wearing of the BLM slogan on his work apron was

inherently concerted.

BACKGROUND AND FACTS

This case was initially submitted for Advice concerning the scope of the notice-

posting remedy for the Employer’s unlawful application of its facially-lawful dress-

code policy to interfere with protected concerted activity, i.e., to prohibit an employee

from displaying a “Black Lives Matter” (BLM) slogan on his work apron, and its

subsequent discipline and constructive discharge of him for refusing to stop

displaying the slogan

r Advice concerning the scope of the notice-

posting remedy for the Employer’s unlawful application of its facially-lawful dress-

code policy to interfere with protected concerted activity, i.e., to prohibit an employee

from displaying a “Black Lives Matter” (BLM) slogan on his work apron, and its

subsequent discipline and constructive discharge of him for refusing to stop

displaying the slogan. In our initial Advice Memorandum in this case, we concluded

that a nationwide notice-posting is appropriate here in light of the Employer’s

admission that it consistently enforces its dress-code policy at all of its stores so as to

preclude all political messages, including the protected, concerted wearing of BLM

slogans in the workplace. We further concluded that the Region should urge the

Case 18-CA-273796

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Board to revisit its recent decision in AT&T Mobility,1 return to its prior approach of

requiring rescission of rules that have been unlawfully applied to restrict Section 7

rights, and also, as suggested by Chairman McFerran in her partial dissent in AT&T

Mobility, condition reinstatement of the rule on the addition of a disclaimer that the

rule will not be applied to restrict Section 7 activity.2 Accordingly, the Region was

directed to seek an affirmative order requiring the Employer to rescind or revise its

unlawfully-applied dress code policy. And for the same reasons that a nationwide

notice-posting is appropriate, the Region was also directed to seek a nationwide

rescission remedy.

The Home Depot (the Employer) is a large home-improvement retailer with

approximately 500,000 employees and more than 2,200 stores in the U.S., Canada,

and Mexico. The Employer maintains company-wide apron and dress-code policies,

both of which provide, in relevant part:

The Home Depot apron is the brand of the Company. Customers identify us by it,

and it symbolizes our commitment to customer service

t (the Employer) is a large home-improvement retailer with

approximately 500,000 employees and more than 2,200 stores in the U.S., Canada,

and Mexico. The Employer maintains company-wide apron and dress-code policies,

both of which provide, in relevant part:

The Home Depot apron is the brand of the Company. Customers identify us by it,

and it symbolizes our commitment to customer service. To be most effective,

associates wearing an apron must present a consistent image to the public. While

The Home Depot respects the personal opinions and beliefs held by associates

and customers, the apron is not an appropriate place to promote or

display religious beliefs, causes or political messages unrelated to

workplace matters, or messages that would violate our policies on

discrimination and unlawful harassment…. (Emphasis added).

Since he began working for the Employer at one of its Minneapolis, Minnesota

stores (Store No. 2807) in August 2020, the Charging Party had been wearing a BLM

slogan prominently displayed in writing on his Home Depot apron. Throughout his

employment, and as recently as early February 2021, the Charging Party and a small

group of coworkers informed management of persistent racial harassment by a

coworker toward themselves, colleagues, and customers. In February 2021, Black

History Month posters were vandalized in the break rooms, prompting the Employer

to send its staff two e-mails addressing the issue and informing employees that such

actions would not be tolerated. After the first email from the Employer, the Charging

Party and a coworker spoke with management about the subject of the email needing

a group discussion

es, and customers. In February 2021, Black

History Month posters were vandalized in the break rooms, prompting the Employer

to send its staff two e-mails addressing the issue and informing employees that such

actions would not be tolerated. After the first email from the Employer, the Charging

Party and a coworker spoke with management about the subject of the email needing

a group discussion. In response to the second Employer email to staff, the Charging

Party responded by email back to the Employer regarding the vandalism, again

raising group concerns and urging the Employer to call a meeting for employees to

discuss the incidents, and stressing the importance of helping employees of color feel

1 AT&T Mobility, LLC., 370 NLRB No. 121, slip op. at 7 (May 3, 2021) (overruling

prong three of Lutheran Heritage Village–Livonia, 343 NLRB 646 (2004)).

2 See id., 370 NLRB No. 121, slip op. at 16 (Chairman McFerran, dissenting in part

and concurring in part).

Case 18-CA-273796

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safe. The Employer met with the Charging Party shortly thereafter, informing him

that he was violating the dress code policy by having BLM written on his apron and

giving him the choice between wearing an apron without the slogan or quitting; the

Charging Party chose the latter, resigning his employment in mid-February 2021.

The Region found merit to a number of allegations in the instant charge,

including that the Employer: disciplined/suspended the Charging Party for engaging

in protected concerted activity, and constructively discharged him for that activity;

unlawfully enforced its facially-lawful dress code/apron policies against protected

concerted activity; and made a variety of Section 8(a)(1) threats to not engage in

protected concerted activity regarding racial harassment

e,

including that the Employer: disciplined/suspended the Charging Party for engaging

in protected concerted activity, and constructively discharged him for that activity;

unlawfully enforced its facially-lawful dress code/apron policies against protected

concerted activity; and made a variety of Section 8(a)(1) threats to not engage in

protected concerted activity regarding racial harassment. With regard to concert, the

Region concluded that the Charging Party’s conduct in continuing to wear the BLM

slogan on his work apron was intertwined with, and a “logical outgrowth” of, the

persistent and continuing concerted activity of the Charging Party and his coworkers

banding together to rid their workplace of racial harassment. After hearing back from

Advice on the scope of the notice-posting remedy, the Region resubmitted the case for

advice as to whether to include an alternative argument that the Charging Party’s

conduct in continuing to wear the BLM slogan was inherently concerted.

ACTION

We conclude that employee discussions in the workplace regarding racism should

be deemed inherently concerted because systemic racism, including an employer’s

racial discrimination, racial harassment, and/or tolerance of such discrimination or

harassment, necessarily implicates significant terms and condition of employment

and is of vital importance to employees. We further conclude that the Region should

urge the Board to expand the circumstances under which it applies the inherently

concerted doctrine beyond a conversation between two people to include the wearing

of a slogan or button.

As noted above, the Region concluded that the Charging Party’s conduct in

continuing to wear the BLM slogan on his work apron was intertwined with and a

“logical outgrowth” of the persistent and ongoing concerted activity of the Charging

Party and his coworkers banding together to rid their workplace of racial harassment

n between two people to include the wearing

of a slogan or button.

As noted above, the Region concluded that the Charging Party’s conduct in

continuing to wear the BLM slogan on his work apron was intertwined with and a

“logical outgrowth” of the persistent and ongoing concerted activity of the Charging

Party and his coworkers banding together to rid their workplace of racial harassment.

The Region should argue, alternatively, that the Charging Party’s individual wearing

of the BLM slogan on his work apron is concerted under the Board’s doctrine of

“inherently” concerted activity.

The inherently-concerted doctrine emerged in Trayco of South Carolina, Inc.,3

where the Board held that an employee’s discussions with her co-workers about

higher wages constituted concerted activity even though the discussions did not

3 297 NLRB 630 (1990), enforcement denied, 927 F.2d 597 (4th Cir. 1991).

Case 18-CA-273796

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contemplate group action. In reaching that decision, the Board observed that the

object of inducing group action need not be expressed but can instead be implied from

the subject matter of discussion. Because higher wages are a “frequent objective of

organizational activity,” the Board reasoned that the employee’s discussions about

that subject impliedly were concerted.4 The doctrine was enlarged in Aroostook

County Regional Ophthalmology Center,5 where the Board decided that discussions

about changes in work schedules were inherently concerted activity despite the

absence of any talk about the initiation of group action. Like wages, the Board

concluded that work schedules are a “vital term and condition of employment” that is

“likely to spawn collective action.”6 Lastly, in Hoodview Vending Co.,7 the Board

added the subject of “job security” to the list of vital terms and conditions of

employment that, when discussed between two or more employees, will be regarded

as inherently concerted activity

roup action. Like wages, the Board

concluded that work schedules are a “vital term and condition of employment” that is

“likely to spawn collective action.”6 Lastly, in Hoodview Vending Co.,7 the Board

added the subject of “job security” to the list of vital terms and conditions of

employment that, when discussed between two or more employees, will be regarded

as inherently concerted activity. Such discussions concern “the very existence of the

employment relationship and [will] quickly ripple through, and resonate with, the

work force.”8

The inclusion of racism among the subjects of workplace discussions deemed to be

inherently concerted activity is a logical and necessary extension of the inherently

concerted doctrine. As Advice has recognized previously, discussions concerning an

employer’s alleged discrimination raise the same considerations identified by the

Board with respect to discussion over other “vital” terms and conditions as a rationale

for finding them inherently concerted.9 The topics that have been deemed inherently

concerted to date all represent discrete terms and conditions of employment. Systemic

racism, including an employer’s racial bias or discrimination, by contrast, implicates

all terms and conditions of employment—including those the Board has already

4 Id. at 634; accord Automatic Screw Prods., 306 NLRB 1072, 1072 (1992), enforced

mem., 977 F.2d 582 (6th Cir. 1992).

5 317 NLRB 218 (1995), enforcement denied in part on other grounds, 81 F.3d 209

(D.C. Cir. 1996).

6 Id. at 220.

7 359 NLRB 355 (2014), vacated, 2014 WL 2929781 (Jun. 27, 2014), reconsidered &

affirmed, 362 NLRB 690 (2015).

8 Id. at 357.

9 See, e.g., SunBridge Healthcare LLC, d/b/a Milford Center, Case 01-CA-156820,

Advice Memorandum dated January 20, 2016, at 9-12 (arguing that workplace racial

discrimination is inherently concerted).

rounds, 81 F.3d 209

(D.C. Cir. 1996).

6 Id. at 220.

7 359 NLRB 355 (2014), vacated, 2014 WL 2929781 (Jun. 27, 2014), reconsidered &

affirmed, 362 NLRB 690 (2015).

8 Id. at 357.

9 See, e.g., SunBridge Healthcare LLC, d/b/a Milford Center, Case 01-CA-156820,

Advice Memorandum dated January 20, 2016, at 9-12 (arguing that workplace racial

discrimination is inherently concerted).

Case 18-CA-273796

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identified as being inherently concerted, such as wages, work schedules, and job

security.

Indeed, the specter of workplace discrimination has been a matter of concern in

U.S labor law since the early days of the Act.10

The desire for fair and equitable conditions of employment on the part

of persons of any race, color or persuasion, and the removal of

discriminations against them by reason of their race or religious belief

is quite as important to those concerned as fairness and equity in

terms and conditions of employment can be to trade or craft unions or

any form of labor organization or association. Race discrimination by

an employer may reasonably be deemed more unfair and less excusable

than discrimination against workers on the ground of union

affiliation.11

Even after the passage of Title VII of the Civil Rights Act of 1964,12 the D.C. Circuit

recognized “an employer’s invidious discrimination on account of race or national

origin” as a significant threat to employees’ exercise of their Section 7 rights, noting

that “racial discrimination sets up an unjustified clash of interests between groups of

workers which tends to reduce the likelihood and the effectiveness of their working in

concert to achieve their legitimate goals under the Act.”13 Moreover, workplace

10 See, e.g., Vaca v. Sipes, 386 U.S. 171, 177 (1967) (tracing the union duty of fair

representation to judicial attempts to combat racial discrimination by unions certified

as exclusive bargaining representatives under the Railway Labor Act, citing Steele v

nd the effectiveness of their working in

concert to achieve their legitimate goals under the Act.”13 Moreover, workplace

10 See, e.g., Vaca v. Sipes, 386 U.S. 171, 177 (1967) (tracing the union duty of fair

representation to judicial attempts to combat racial discrimination by unions certified

as exclusive bargaining representatives under the Railway Labor Act, citing Steele v.

Louisville & N.R. Co, 323 U.S. 192 (1944), and Tunstall v. Bhd. of Locomotive

Firemen, 323 U.S. 210 (1944)). Cf. Sewell Mfg. Co., 138 NLRB 66, 72 (1962)

(overturning election because employer’s “propaganda directed to race . . . so inflamed

and tainted the atmosphere . . . that a reasoned basis for choosing or rejecting a

bargaining representative was an impossibility.”).

11 New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 561 (1938) (holding that

the picketing of a grocery store by black activists in protest of the store’s refusal to

hire black employees was a “labor dispute” under the Norris-LaGuardia Act and

therefore protected by Norris-LaGuardia’s anti-injunction protections).

12 42 U.S.C. § 2000e et seq. (1964).

13 United Packinghouse, Food & Allied Workers Int’l Union v. NLRB, 416 F.2d 1126,

1135 (D.C. Cir. 1969) (enforcing Board order directing employer to bargain over racial

discrimination and also holding on union’s petition for review that a policy or practice

ct and

therefore protected by Norris-LaGuardia’s anti-injunction protections).

12 42 U.S.C. § 2000e et seq. (1964).

13 United Packinghouse, Food & Allied Workers Int’l Union v. NLRB, 416 F.2d 1126,

1135 (D.C. Cir. 1969) (enforcing Board order directing employer to bargain over racial

discrimination and also holding on union’s petition for review that a policy or practice

Case 18-CA-273796

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discrimination is of significant importance to employees: “[i]t 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 race

or ethnicity of the person….”14 And virtually every collective-bargaining agreement

contains an anti-discrimination provision, signifying the importance of this issue to

employees.

Similarly, an employer’s racial harassment, or tolerance of racial harassment,

has the potential to affect numerous terms and conditions of employment and is a

matter of great signifance to employees that is likely to spawn collective action.

Indeed, the facts of this case illustrate that concerns about such vital workplace

issues have the propensity to resonate with the workforce and lead to collective

action, as confirmed by the Charging Party’s and other employees’ concerted attempts

to get management to put an end to the ongoing racial harassment

matter of great signifance to employees that is likely to spawn collective action.

Indeed, the facts of this case illustrate that concerns about such vital workplace

issues have the propensity to resonate with the workforce and lead to collective

action, as confirmed by the Charging Party’s and other employees’ concerted attempts

to get management to put an end to the ongoing racial harassment.

Moreover, racial harassment in the workplace can be viewed, in essence, as an

issue of workplace health and safety.15 As Advice has previously found, discussions

concerning workplace health and safety are inherently concerted.16 Workplace health

and safety is undoubtedly one of the most vital terms and conditions of employment

from the perspective of employees, and such concerns often serve as a precursor to

organizing or other actions for mutual aid and protection.17 As the Board has

of discrimination against employees on the basis of race or national origin is a

violation of Section 8(a)(1)).

14 Dearborn Big Boy No. 3, Inc., 328 NLRB at 710, n.33. See also General Teamsters

Local Union No. 528, 237 NLRB 258, 261 (1978) (adopting an ALJ decision in which

the Judge commented that, “the right of employees to be free from racial

discrimination by an employer or union must be accorded the same primacy and

protection as the right to safe working conditions.”).

15 See generally Kathleen M. Pospenda, et al., Is Workplace Harassment Hazardous to

Your Health?, JOURNAL OF BUSINESS AND PSYCHOLOGY, Vol. 20 No. 1, 95-110 (2005)

(exposure to workplace harassment increases risk for illness, injury, or assault).

16 See North West Rural Electric Cooperative, Case 18-CA-150605, Advice

Memorandum dated September 21, 2015, at 9-12 (arguing that workplace safety and

health issues are inherently concerted); Renewal by Andersen LLC KC, Case 14-CA-

262563, Advice Memorandum dated Apr. 9, 2021, at 7-8 (same)

1, 95-110 (2005)

(exposure to workplace harassment increases risk for illness, injury, or assault).

16 See North West Rural Electric Cooperative, Case 18-CA-150605, Advice

Memorandum dated September 21, 2015, at 9-12 (arguing that workplace safety and

health issues are inherently concerted); Renewal by Andersen LLC KC, Case 14-CA-

262563, Advice Memorandum dated Apr. 9, 2021, at 7-8 (same).

17 E.g., Crossing Rehabilitation Services, 347 NLRB 228, 231 (2006) (employees

wanted union in order to negotiate over “concerns about safety at work, employment

benefits, and job security”); Snowshoe Co., 217 NLRB 1056, 1058 (1975) (employee

Case 18-CA-273796

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observed, “health and safety matters regarding unit employees’ workplaces are of

vital interest to employees,”18 and indeed, “[f]ew matters can be of greater legitimate

concern to individuals in the workplace . . . than exposure to conditions potentially

threatening their health, well-being, or their very lives.”19 Moreover, the resolution of

safety and health issues is a frequent objective of organizational activity likely to lead

to collective action for mutual aid or protection.20

Thus, we conclude that employee discussions in the workplace regarding racism

should be deemed inherently concerted.

We recognize that, even where topics are “inherently concerted,” the Board has

required that there be a conversation between employees about the relevant topic in

order to find concert.21 However, we conclude that the Board should expand the

circumstances under which it applies the inherently concerted doctrine beyond a

conversation between two people to include the wearing of a slogan or button in the

workplace. A button or slogan related to an inherently concerted topic and worn in the

workplace is effectively the start of a conversation among employees that is no

different from those already found to be inherently concerted in other contexts

under which it applies the inherently concerted doctrine beyond a

conversation between two people to include the wearing of a slogan or button in the

workplace. A button or slogan related to an inherently concerted topic and worn in the

workplace is effectively the start of a conversation among employees that is no

different from those already found to be inherently concerted in other contexts. Here,

the Charging Party’s wearing of the BLM slogan on his work apron could well have

led to more traditional discussions with coworkers regarding racism in the workplace

unionization efforts began for the purpose of “improving working conditions,

particularly safety measures, and wages”), enforced mem., 530 F.2d 969 (4th Cir.

1975).

18 Detroit Newspaper Agency, 317 NLRB 1071, 1071 (1995) (confirming relevancy of

union’s request for information addressing health and safety issues).

19 Minnesota Mining & Mfg. Co., 261 NLRB 27, 29 (1982) (finding that employer was

required to comply with union request for certain health and safety information),

enforced sub nom., Oil, Chemical & Atomic Workers Local Union No. 6-418 v. NLRB,

711 F.2d 248 (D.C. Cir. 1983).

20 E.g., Systems with Reliability, Inc., 322 NLRB 757, 757-60 (1996) (employees

discussed toxic effects of methyl ethyl ketone in their workplace before confronting

employer and threatening to contact OSHA); Detroit Newspaper Agency, 317 NLRB at

1071 (confirming relevancy of union’s request for audit report addressing health and

safety matters). See also In re AFL-CIO, 2020 WL 3125324 (D.C. Cir. 2020) (petition

seeking OSHA’s issuance of safety standard protecting against COVID-19 infections).

21 See Hoodview Vending, 359 NLRB at 358 n.16 (2012) (“Inherently concerted

activity involves a conversation between two or more individuals.”), incorporated by

reference in 362 NLRB No. 81, slip op. at 1.

ssing health and

safety matters). See also In re AFL-CIO, 2020 WL 3125324 (D.C. Cir. 2020) (petition

seeking OSHA’s issuance of safety standard protecting against COVID-19 infections).

21 See Hoodview Vending, 359 NLRB at 358 n.16 (2012) (“Inherently concerted

activity involves a conversation between two or more individuals.”), incorporated by

reference in 362 NLRB No. 81, slip op. at 1.

Case 18-CA-273796

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generally.22 Thus, like the preliminary discussions about vital terms in Hoodview

Vending, finding the wearing of the BLM slogan here to be inherently concerted

would prevent the Employer from rendering employees’ right to act in concert

meaningless by permitting the Employer to preemptively “shut down future

discussions and any other concerted actions that might follow.”23

Accordingly, absent settlement, the Region should argue, as an alternative to

traditional concert, that the Charging Party’s individual wearing of the BLM slogan

on his work apron was inherently concerted.

/s/

R.A.B.

ADV.18-CA-273796. Response.HomeDepot2

22 Although not necessary to a finding of inherent concert, we also note that, given the

particular context in which the Charging Party wore the BLM slogan, this action

could also have bolstered support for future action amongst the employees regarding

the alleged racially-motivated vandalism and/or encouraged others to come forward

with complaints about alleged harassment or the treatment of people of color in the

Employer’s workplace.

23 Id., slip op. at 4; see also Parexel Int’l, LLC, 356 NLRB No. 82, slip op. at 4.

(b) (6), (b) (7)(