Marcia Sorin v. The Folger Coffee Company

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-1406
___________________________
Home Depot U.S.A., Inc.
lllllllllllllllllllllPetitioner
v.
National Labor Relations Board
lllllllllllllllllllllRespondent
------------------------------
Chamber of Commerce of the United States of America
lllllllllllllllllllllAmicus Curiae
Cato Institute; Retail Litigation Center, Inc.; Coalition for a Democratic
Workplace and 5 Other Associations Representing Employers
lllllllllllllllllllllAmici on Behalf of Petitioner
American Federation of Labor and Congress of Industrial Organizations
lllllllllllllllllllllAmicus on Behalf of Respondent
___________________________
No. 24-1513
___________________________

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Home Depot U.S.A., Inc.
lllllllllllllllllllllRespondent
v.
National Labor Relations Board
lllllllllllllllllllllPetitioner
------------------------------
Chamber of Commerce of the United States of America
lllllllllllllllllllllAmicus Curiae
Cato Institute; Retail Litigation Center, Inc.; Coalition for a Democratic
Workplace and 5 Other Associations Representing Employers
lllllllllllllllllllllAmici on Behalf of Respondent
American Federation of Labor and Congress of Industrial Organizations
lllllllllllllllllllllAmicus on Behalf of Petitioner
____________
National Labor Relations Board
____________
Submitted: June 11, 2025
Filed: November 6, 2025
____________
Before LOKEN, ERICKSON, and KOBES, Circuit Judges.
____________
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LOKEN, Circuit Judge.
Home Depot, a home-improvement retailer, petitions for review of an order of
the National Labor Relations Board that Home Depot violated Sections 7 and 8(a)(1)
of the National Labor Relations Act, 29 U.S.C. §§ 157 and 158(a)(1), when it directed
an employee of its store in New Brighton, Minnesota, a suburb of Minneapolis, to
remove the display of “BLM” from the required Home Depot uniform. The
administrative law judge (ALJ) concluded that the Board’s general counsel failed to
prove a violation of Section 8(a)(1). The Board disagreed. Rejecting Home Depot’s
defenses, the Board held in a 3-1 decision that the employee engaged in concerted
protected activity and was constructively discharged for refusing to remove the
display. Home Depot USA, Inc., 373 NLRB No. 25 (Feb. 21, 2024).
The parties and their knowledgeable amici have briefed and argued many
issues. We conclude the Board improperly evaluated the “special circumstances” and
business justification defenses asserted by Home Depot in defending an action taken
in the wake of George Floyd’s murder in Minneapolis following civil unrest that
directly affected this particular store, and the more general divisive societal responses
to the Black Lives Matter (“BLM”) movement. These circumstances were unlike the
more typical union organizing dispute at issue in Cintas Corp. v. NLRB, 589 F.3d
905, 914 (8th Cir. 2009). They were “special circumstances [that] justify a
prohibition on wearing” this kind of message in a customer-facing job at this location
during this period of time. Id. Accordingly, we grant the petition for review and
decline to rule on other issues.
I. Background
Part of Home Depot’s required employee uniform is its signature orange apron
featuring a well-recognized Home Depot insignia. Home Depot allows -- indeed
encourages -- staff to customize their aprons with personalized pins, illustrations, and
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written messages that will appear along with the Home Depot insignia. Home
Depot’s dress code policies reiterate in four sections that the display of “causes or
political messages unrelated to the workplace” is “unacceptable.” The section
addressing appropriate apron appearance specifically addresses the issue:
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.
Associate dress must not present a safety hazard. . . . When
visiting a store location, every associate must comply with the store
dress code. Any request to deviate from this policy MUST be approved
by the Regional Human Resources Director. Any APS request to
deviate from this policy must be approved by the Regional Director of
Operations.
(Emphasis added.)
Home Depot hired the employee at issue in August 2020 as a sales specialist
at its New Brighton, Minnesota store.1 Approximately three months before, George
Floyd was murdered less than seven miles from the store while in the custody of
Minneapolis police officers. Reacting to this tragic incident and other instances of
police use of force, the Black Lives Matter movement and its insignia became a
1Home Depot hired the employee under the name Antonio Morales, and that
is the name appearing in the ALJ and Board decisions. The employee, who identifies
as Hispanic and a person of color, has since adopted the name Caro Linda Bo and
uses they/them pronouns. We will use the name Bo in this opinion.
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prominent symbol for protesting police violence. Within two months of being hired,
Bo joined other employees in adorning “BLM” on their aprons. Bo testified he wrote
“BLM” in black marker on the front of the apron to be “approachable” and “as a
symbol of solidarity” against “prejudice and racism.”
Other racial issues concerned employees at the New Brighton store that autumn
and winter. Employee Amy Gumm frequently engaged in racially discriminatory
conduct toward customers and employees of color, precipitating conversations
between employees about her treatment of people of color and prompting multiple
employee complaints to supervisors. One complaint in mid-September was elevated
to human resources and store management. Although unknown to employees who
complained of Gumm’s misconduct, the store engaged Gumm in performance
discussions, coaching, and counseling regarding the issue over the following months.
But complaints to management continued and Gumm’s behavior remained an issue
for store employees until she was discharged in late February 2021.
In February 2021, someone vandalized the Black History Month display in the
employee breakroom by tearing down a poster of prominent Black historical figures,
ripping up flash cards about Black historical figures, and putting the display in the
trash. An assistant store manager repaired the display and reported the incident to
management and supervisors via email. After discussions with others, Bo told the
assistant manager his email response was inadequate and urged a storewide
conversation to ensure coworkers of color felt safe. The assistant store manager told
employees the email was sufficient.
A few days later, the display was again vandalized. A different assistant store
manager emailed employees and supervisors about the incident. Bo with input from
others renewed the call for a storewide discussion, stating that employees were
feeling “uncomfortable and disrespected,” that “Home Depot needs to acknowledge
that these actions will not be condoned,” and that “our fellow coworkers of color
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need to feel the support from the store they work for.” The store manager and an
assistant manager met with Bo to address the issue. During the meeting, the manager
noticed the “BLM” on Bo’s apron and informed Bo that the lettering presented a
social or political cause, violated the dress code policy, and had to be removed. The
manager said that allowing a “BLM” message at work would also require permitting
other symbols employees wanted, including a swastika. The manager said he
believed “Black lives matter” and “all lives matter” but Bo could not return to work
until the lettering was removed. Other options were suggested, including wearing a
diversity, equity, and inclusion pin or a “respect for all” pin.
The next day, the district manager and district human resources manager met
with Bo about incidents in the store and the multiple employee reports to management
about these issues. The district manager acknowledged the store’s long delayed
response had “failed” Bo and other employees, noted there would be an investigation,
asked for confidentiality, and encouraged Bo to spearhead store efforts to celebrate
people of color. Transitioning to the “BLM” on Bo’s apron, the manager asked why
Bo put the lettering on the apron. Bo responded: “I put it on as a signal to show that
I support Black people; I support people of color. And I think that what happened
over the course of the summer, I think that needs to be addressed and how we need
to continue to support Black people.”
The district manager reaffirmed that the message violated Home Depot’s dress
code and that Bo could not work while wearing it, noting that allowing the BLM
message would require permitting offensive symbols like swastikas. He told Bo to
go home and not return until he found another way to express these beliefs. Bo
disagreed, insisting that “BLM” was the “best way” at this time to show support for
people of color in the store. The district manager suggested alternatives such as pins
supporting Black History Month or diversity and inclusion. Bo declined: “It seems
like no one is listening . . . . It’s been six months, and nothing has been done.”
Alternative ways to show “respect for . . . Black people” such as the Black History
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Month display had been vandalized with little response from the store, demonstrating
that alternatives were ineffective. Bo refused to remove the BLM lettering on the
apron, stating that “willing to be fired over this” would be a “a great example” and
was “going to make the biggest impact” in the store.
Bo resigned the next day. Home Depot later instructed other employees that
its dress code policy required that “BLM” lettering on their aprons be removed.
Home Depot had previously barred employees from displaying “Blue Lives Matter,”
“Thin Blue Line,” and other related messages on aprons and clothing at work.
II. The NLRB Proceedings.
Shortly after resigning, Bo filed unfair labor practices charges with the Board.
After investigating, the Board’s General Counsel filed a complaint alleging that
Home Depot violated Sections 7 and 8(a)(1) of the NLRA by prohibiting employees
from displaying “BLM” on their aprons. Section 7 protects employee rights to
self-organize, join or assist labor organizations, bargain collectively, “and to engage
in other concerted activities for the purpose of collective bargaining or other mutual
aid or protection” (emphasis added). The complaint alleged that displaying “BLM”
on employee aprons is activity protected by Section 7. Section 8(a)(1) prohibits
employers from taking actions that “interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed” in Section 7. The complaint alleged that
requiring Bo to remove the BLM lettering added to his apron or to stop working at
the New Brighton store violated this prohibition.
In response, Home Depot argued that Bo’s BLM messaging was not Section
7 protected activity because it is not concerted activity with a “reasonable and direct
nexus” to mutual aid or protection in the workplace, and that requiring removal of the
message was justified under the NLRA’s “special circumstances” doctrine, which
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permits employers to bar otherwise protected messages when they conflict with
legitimate business interests. See Eastex, Inc. v. NLRB, 437 U.S. 556, 574 (1978).
In June 2022, after a four-day evidentiary hearing, the Administrative Law
Judge (ALJ) dismissed the complaint. The ALJ found that Bo and other store
employees did not engage in concerted activity by placing “BLM” on their aprons
because it was never coordinated or discussed among store employees. The ALJ
found that Bo placed BLM on his apron before other workplace racial issues arose
and employees began taking concerted action challenging the store’s inadequate
responses to those issues. Therefore, the apron BLM personalization “cannot
reasonably be seen as a ‘logical outgrowth’ of the protected concerted
communications regarding Gumm’s misconduct and the vandalism of Black History
Month displays.” The BLM message “relates to the workplace only in the sense that
workplaces are part of society.” The BLM message was not Section 7 protected
activity because it “had, at best, an extremely attenuated and indirect relationship to
any workplace issue at the New Brighton store.” There was no factual showing that
Bo’s BLM display was “directly related to working conditions.”
The General Counsel filed exceptions to the ALJ’s adverse decision. In
February 2024, the Board reversed the ALJ, concluding that Bo engaged in protected
Section 7 activity and Home Depot violated Section 8(a)(1) by directing Bo to
remove “BLM” from the apron, enforcing its dress code to prohibit the display, and
constructively discharging Bo by conditioning continued employment on compliance.
The Board majority’s opinion shifted the analysis from Bo’s decision to write
“BLM” on the apron, which the complaint charged and the ALJ considered, to Bo’s
refusal to remove the display in the February meetings with managers. The three-
member majority concluded that Bo’s refusal to remove the BLM message was
protected concerted activity. Although there was no showing that Bo discussed the
BLM message with coworkers, other employees displayed “BLM” on their aprons
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during a time when they were raising concerns about racial mistreatment in the
workplace, the vandalized Black History Month displays, and Home Depot’s failure
to respond to those concerns. Home Depot asked Bo to remove the BLM marking
during meetings at which Bo voiced group concerns about Home Depot’s response
to discriminatory working conditions, and Bo connected display of the BLM message
to those group concerns. “Longstanding precedent establishes that an individual
employee’s action is ‘concerted’ within the meaning of Section 7 if it is a ‘logical
outgrowth’ of employees’ prior or ongoing protected concerted activity.” Bo’s
“insistence on continuing to wear the BLM marking . . . was, at a minimum, a logical
outgrowth of the employees’ prior concerted activities.” There was a “direct
relationship” between Bo’s workplace complaints about Gumm, the vandalism
incidents, and refusal to remove the BLM marking. Thus, Bo’s refusal to remove the
marking was protected concerted activity for the purpose of “mutual aid or
protection.” 373 NLRB No. 25, at *7-12 (citations omitted).2
The Board rejected Home Depot’s argument that, even if Bo’s refusal to
remove the BLM apron message was part of concerted activity protected by Section
7, “special circumstances” justified removal. Id. at *13-17. Home Depot argued the
BLM apron display could jeopardize employee safety, exacerbate employee
dissension, and unreasonably interfere with the company’s established public image.
The Board determined the record did not establish there was nonspeculative and
imminent risk to employee safety, did not show significant employee dissension, and
2The Board majority explained: “Simply put, [Bo’s] initial act of affixing BLM
. . . sometime around September 2020 and . . . subsequent February 2021 insistence
on continuing to display BLM . . . are separate acts in a course of conduct culminating
in [Home Depot’s] instruction to remove the display. . . . [T]he latter act is concerted
as a logical outgrowth of employees’ previous and then-ongoing protected concerted
activities consistent with the allegations contained in the amended complaint. . . .
Based on events on the ground at the New Brighton store . . . the BLM symbol
accumulated meaning relevant to working conditions there.”
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did not establish that the public would view the BLM marking as reflecting views
contrary to Home Depot’s public image, particularly given that employees were
encouraged to personalize their aprons. The Board ordered Home Depot to cease and
desist from the violations and from interfering with employees’ NLRA rights, to
reinstate Bo with back pay, and to post a remedial notice.
Board Member Marvin Kaplan, now Board Chairman, authored a lengthy
opinion dissenting in part. Home Depot, 373 NLRB No. 25, at *27-30. He
questioned the majority’s finding of concerted activity for the purpose of mutual aid
or protection, arguing there is no evidence Bo, in displaying the BLM message,
intended to “initiate, induce, or prepare for group action.” The display was not linked
to prior workplace complaints. Three months before Bo was hired, George Floyd was
murdered by a Minneapolis police officer less than seven miles from the store:
That tragic event and the widespread protests that ensued dramatically
heightened pubic awareness of the “Black Lives Matter” movement.
Particularly given the proximity, temporally and geographically, of
[Bo’s] display of “BLM” to those events, a reasonable person with
knowledge of the relevant facts would have linked [Bo’s] display of
“BLM” with the Black Lives Matter movement and its goal of
combating police violence against Black individuals -- not with
improving terms and conditions of employment of employees at the . .
. New Brighton store or otherwise improving their lot as employees.
The dissent further argued that the majority’s decision denied Home Depot its due
process right to “a clear statement of the theory on which the agency will proceed.”
The General Counsel’s complaint identified the display of the BLM message as the
protected concerted activity, whereas the Board based its decision on the refusal to
remove it. Finally, the dissent accused the majority of “an unprecedented extension
of the ‘logical outgrowth’ theory” in concluding that Bo’s initial act that was not
concerted at its inception -- placing the BLM marking on the apron -- became
concerted “as a logical outgrowth of subsequent protected concerted activity.”
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Home Depot petitions for review, arguing Bo’s BLM message was not
protected Section 7 activity because it was neither concerted nor for mutual aid or
protection of the store’s employees; if it was protected, Home Depot did not violate
Section 8(a)(1) because special circumstances justified management insisting on its
removal; the Board’s decision violates Home Depot’s First Amendment right to free
speech; and the Board’s cease-and-desist remedy is an over-broad “obey the law”
injunction. The Board has cross-applied for enforcement of its order.
III. Discussion
We have jurisdiction to review the Board’s decision. See 29 U.S.C. § 160(e),
(f). “We exercise de novo review over the Board’s legal conclusions, determining
whether the Board started with the currently controlling law and correctly applied this
law. We accept the Board’s factual determinations if they are supported by
substantial evidence on the record considered as a whole.” Starbucks Corp. v. NLRB,
140 F.4th 971, 975 (8th Cir. 2025) (quotations omitted); see NLRB v. Noah’s Ark
Processors, LLC, 31 F.4th 1097, 1100 (8th Cir. 2022). For the reasons that follow,
we conclude Home Depot established that the special circumstance defense to a
Section 8(a)(1) violation applies. We vacate the Board’s order, remand for further
proceedings, and decline to reach the other issues.
A. The Special Circumstances Defense. “It is well established that an
employer commits an unfair labor practice if it discharges employees for engaging in
concerted activities that are protected by Section 7 of the NLRA, including
[employee] communications to third parties or to the public that seek to ‘improve
their lot as employees through channels outside the immediate employee-employer
relationship.’” MikLin Enters., Inc. v. NLRB, 861 F.3d 812, 818 (8th Cir. 2017),
quoting Eastex, 437 U.S. at 565. Home Depot argues, as it did before the Board, that
Bo’s refusal to remove the BLM apron display after discussions with management
about racial issues in the store was not Section 7 protected concerted employee
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activity for their mutual aid or protection as employees. As the disagreement between
the ALJ and the Board majority confirms, this is a difficult Section 7 issue. But we
need not resolve this issue if Home Depot did not violate Section 8(a)(1) when it
enforced its dress code policy and required Bo to remove the BLM message. See
Cintas Corp., 589 F.3d at 914 (even if Section 7 protects an employee’s concerted
activity, we still must analyze whether an employer’s policy was justified).
The Supreme Court held many years ago that Section 7 protections “of course,
do[] not prevent an employer from making and enforcing reasonable rules covering
the conduct of employees on company time” because “[w]orking time is for work.”
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 n.10 (1945); see Fabri-Tek,
Inc. v. NLRB, 352 F.2d 577, 586 (8th Cir. 1965). “[I]t is only when the interference
with [Section] 7 rights outweighs the business justification for the employer’s action
that [Section] 8(a)(1) is violated.” Textile Workers Union v. Darlington Mfg. Co.,
380 U.S. 263, 269 (1965).
“[T]he Board has long recognized that where legitimate employer rights and
interests warrant, the fact that a work rule encompasses Section 7 activity within the
scope of its prohibition does not make the rule unlawful to maintain.” Stericycle, Inc.
& Teamsters Loc. 628, 372 NLRB No. 113, at *25 (Aug. 2, 2023). Whether to
protect an employee’s Section 7 interests necessarily concerns whether “the
employer’s management interests are adequately protected.” Eastex, 437 U.S. at 574.
“Accommodation between the two must be obtained with as little destruction of one
as is consistent with the maintenance of the other.” NLRB v. Babcock & Wilcox Co.,
351 U.S. 105, 112 (1956). To ensure proper accommodation, “[it is] necessary to
examine whether there are ‘special circumstances’ present which rebut the
presumption of [work rule] invalidity.” U.S. Steel Corp., 223 NLRB 1246, 1248
(1976); see Pay’n Save v. NLRB, 641 F.2d 697, 700-02 (9th Cir. 1981) (same).
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Supreme Court decisions and our cases considering this “narrow” special
circumstances exception have typically concerned Section 7 protection of union
solicitation activities and the display of union insignia in the workplace. See, e.g.,
Republic Aviation Corp., 324 U.S. 793; Beth Israel Hospital v. NLRB, 437 U.S. 483
(1978); NLRB v. Magnavox Co., 415 U.S. 322 (1974); Hudgens v. NLRB, 424 U.S.
507 (1976); Cintas Corp., 589 F.3d at 914-15. Following Supreme Court precedent,
we have determined that if “an employer makes a creditable showing of special,
justifying circumstances . . . the Board in weighing that evidence must . . . consider
the importance of the proffered justification and thereby determine whether the actual
impact of the contested [employer work] rule upon employee [Section] 7 rights
mandates the invalidation of the rule.” McDonnell Douglas Corp. v. NLRB, 472 F.2d
539, 545-46 (8th Cir. 1973). When an “employer can demonstrate ‘special
circumstances sufficient to outweigh its employees’ Section 7 interests and legitimize
the regulation of such insignia,’ then the right of employees to wear these items ‘may
give way.’” In-N-Out Burger, Inc. v. NLRB, 894 F.3d 707, 714-15 (5th Cir. 2018)
(quotation omitted). Courts and the Board apply the exception if permitting
employees to display otherwise protected messages would “jeopardize employee
safety, damage machinery or products, exacerbate employee dissension, or
unreasonably interfere with a public image that the employer has established, as part
of its business plan, through appearance rules for its employees.” P.S.K.
Supermarkets, Inc., 349 NLRB 34, 35 (2007); see ConAgra Foods, Inc. v. NLRB, 813
F.3d 1079, 1086 (8th Cir. 2016); In-N-Out Burger, 894 F.3d at 714-15.
“[It] is the primary responsibility of the Board and not of the courts to strike the
proper balance between the asserted business justifications and the invasion of
employee rights in light of the Act and its policy.” NLRB v. Fleetwood Trailer Co.,
389 U.S. 375, 378 (1967). However, we will only enforce a Board order “as long as
the Board correctly applied the law, and its findings are supported by substantial
evidence . . . .” MikLin Enters., 861 F.3d at 826 (quotation omitted). We require
more than “lip service to the balancing of interests test.” McDonnell Douglas, 472
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F.2d at 547. Here, we assume without deciding the Board correctly concluded on this
record that Bo’s actions were protected under Section 7 and Home Depot’s order to
remove Bo’s BLM message was otherwise invalid. But we must also review whether
Home Depot was justified in enforcing its dress code rule prohibiting Bo’s workplace
display of “BLM” on the apron. The demonstration of a legitimate and substantial
business justification is the employer’s burden. We conclude the Board majority did
not properly resolve this issue.
B. Home Depot’s Special Circumstances. Home Depot argues it had valid
business justifications for applying its dress code policy to Bo’s BLM apron display
because it reasonably believed the display would harm its relationship with customers
and its public image, jeopardized employee safety, and exacerbated employee
dissension. It is well established that an employer “need not await customer
complaint before it takes legitimate action to protect its business.” Nordstrom, Inc.,
264 NLRB 698, 701 n.12 (1982); see S. New England Tel. Co. v. NLRB, 793 F.3d
93, 96 (D.C. Cir. 2015). Thus, an employer may establish a reasonable belief that the
employee’s message risked harm to a legitimate and substantial business interest even
in the “absence of such evidence.” Pathmark Stores, Inc., 342 NLRB 378, 379
(2004). But the employer must offer more than speculation, conjecture, and
generalizations. See, e.g., In-N-Out Burger, 894 F.3d at 715, and cases cited.
The Board addressed Home Depot’s three claims, concluding none has merit.
Our standard for reviewing the Board’s assessment that “special circumstances” do
not justify Home Depot’s enforcement of its dress code policy is whether its
“conclusions rest on erroneous legal foundations.” Babcock & Wilcox Co., 351 U.S.
at 112. The parties do not adequately address whether the Board’s decision that
Home Depot failed to demonstrate the claimed special circumstances is a legal
conclusion we review de novo and if review is not de novo, whether a less deferential
standard of review is mandated by the Supreme Court’s recent decision in Loper
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Bright Enters. v. Raimondo, 603 U.S. 369, 412-13 (2024). We need not decide those
questions but do not foreclose the issue in remanding.
This case is unlike those the Board majority cited to support its decision
regarding “special circumstances.” Home Depot did not attempt to prohibit the
substance of Bo’s message, as in cases where employers prohibited all support of
union organizing at the workplace. It sought to limit display of Bo’s opinions on the
employer-required uniform to less politically charged messaging. An employer ban
on employees displaying personal messages supporting workplace interests is
categorically different from allowing such messaging, or allowing employee
messages that are limited to expressions that will not harm the employer’s business
or threaten workplace safety. See Tesla, Inc. v, NLRB, 86 F.4th 640, 653 (8th Cir.
2023) (“[A] prohibition is a greater infringement than is a restriction”); World Color
(U.S.A.) Corp. v. NLRB, 776 F.3d 17, 20-21 (D.C. Cir. 2015) (whether an employer
prohibits or restricts activity is consequential); Boch Imports, Inc. v. NLRB, 826 F.3d
558, 571-72 (1st Cir. 2016) (bans are unlike restrictions for the “special
circumstances” analysis); cf. Stabilus, Inc., 355 NLRB 836, 838 (2010) (an employer
cannot escape Section 7 protections by requiring uniforms and prohibiting union
insignia). Here, Home Depot suggested and supported multiple apron messages and
actions promoting racial equality and respect in the workplace that Bo could have
employed. To the extent Home Depot reasonably perceived that Bo was insisting on
the BLM message because of its broader political message to society, the ALJ’s
conclusion that Bo’s apron display was not sufficiently related to workplace issues
was a reasonable accommodation of the Section 7 interests that must be balanced.
Regarding Home Depot’s claim of damage to its public image, the Board
majority decided that, because Home Depot did not “requir[e] employees to wear
standardized aprons, but instead encourag[ed] employees to extensively personalize
them, its public image defense necessarily fails.” Home Depot USA, Inc., 373 NLRB
No. 25, at *14 (citations omitted). Absent consistent standards for apron displays, the
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Board concluded, Home Depot could not lawfully restrict disfavored messages while
allowing other potentially controversial ones. But the cited cases addressed
employers attempting to suppress employee expression on a particular issue, not
efforts to limit expression to forms that do not pose a substantial risk to customer
relations or safety. The Board failed to properly consider Bo’s BLM apron display
in the context of this dispute at this location at this point in time. Home Depot’s
restriction on how employees may display messages surrounding the movement
shows only that it “did not want to allow the mass expression of a controversial
message by employees in their stores.” Frith v. Whole Foods Mkt., Inc., 38 F.4th
263, 275 (1st Cir. 2022). “[R]ightly or wrongly, Black Lives Matter was seen as a
controversial message associated with a political movement advancing an array of
policy proposals.” Id. Likewise, in Noble v. Cincinnati & Hamilton Cty. Pub. Lib.,
a First Amendment retaliation case, a divided Sixth Circuit panel agreed that “[i]n the
aftermath of the police shootings of George Floyd and others, there was nationwide
debate over whether the BLM protests were an appropriate response when they
resulted in alleged violence, destruction of property, and looting of businesses that
had no relationship to the shootings.” 112 F.4th 373, 382 (6th Cir. 2024). Cases
involving employers prohibiting employee displays regarding self-organization and
unions -- cornerstones of Section 7 protection -- are readily distinguishable.
The record establishes that Home Depot has a consistent apron policy that
prohibits “causes or political messages unrelated to workplace matters.” The NLRB
countered that apron customization was allowed for “causes or political messages”
such as LGBTQ-pride displays. But it is for the employer, not the Board, to
determine whether personalization will be allowed because it is apolitical,
appropriately demonstrates the company’s values, or is related to the workplace. In
this case, Home Depot evenly restricted displays of “Blue Lives Matter,” other
politically controversial messages, and Bo’s “BLM Matters” message. And it
implored Bo to select other messages -- such as DEI or Black History Month displays
-- that would have the same workplace implication without broader societal political
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intimations. This demonstrates consistent enforcement of its policy, not
discrimination that Section 8(a)(1) declares unlawful. Home Depot “is clearly
entitled to oblige its employees” to personalize aprons in ways that sustain the
company’s values, but “information contained on those [displays are] just as much
a part of [Home Depot’s] public image as any other aspect of its dress code.” NLRB
v. Starbucks Corp., 679 F.3d 70, 78 (2d Cir. 2012); see Fabri-Tek, 352 F.2d at 586.
Home Depot may limit personalized apron displays when it reasonably perceives risk
to customers that is evident and intuitive. See Pathmark Stores, Inc., 342 NLRB at
379 (2004); Noah’s New York Bagels, Inc., 324 NLRB 266, 275 (1997); Komatsu
Am. Corp., 342 NLRB 649, 650 (2004). The Board improperly applied precedent on
balancing public image interests, effectively prohibiting an employer that provides
equal alternatives and has legitimate concerns about customer perception from
exercising reasonable oversight of customer-facing interactions.
Likewise, the Board majority’s assessment of Home Depot’s claim that it
reasonably perceived a risk to employee and customer safety is incompatible with the
“special circumstances” balancing test. The Board concluded that Home Depot did
not present “evidence of nonspeculative, imminent risks.” Home Depot USA, Inc.,
373 NLRB No. 25, at *16. It noted a lack of incidents at the store despite Bo wearing
the BLM message for months, and scant evidence that employees in other retail
settings have been accosted for BLM messaging. We think “the Board’s conclusion
blinks reality.” MikLin Enters., Inc., 861 F.3d at 829 (Colloton, J., concurring). Bo
started wearing the BLM message in the midst of several months of protests,
counter-protests, and civil unrest across the greater Minneapolis area after George
Floyd’s notorious murder. The ALJ summarized the environment confronting the
New Brighton store managers:
The New Brighton store is located approximately six and a half miles
from where George Floyd, an unarmed black man, was murdered on
May 25, 2020, by one or more officers of the Minneapolis Police
Department. Floyd’s murder triggered protests in May and June 2020
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by, among others, persons identifying themselves with the Black Lives
Matter movement and persons engaging as counter protestors. In some
instances the protests and counter protests led to civil unrest in
Minneapolis. Some of this unrest was visible directly outside the New
Brighton store. During the protests, another store in the same shopping
center as the . . . New Brighton store was looted. On two occasions,
[Home Depot] found it necessary to close the New Brighton store as a
result of protest-related disruptions. There was another period of
heightened concern about unrest in Minneapolis before, and during, the
trial in February, March, and April 2021 of an officer responsible for
Floyd's death. [Management] was concerned that allowing employees
to display BLM messages in a retail setting could lead to them being
“involved in situations that were less than favorable, unsafe, very
volatile,” and, in [Bo’s] case, could lead [Bo] “to receive some
unwanted . . . scrutiny, verbiage . . . from a customer or from anywhere
else.” . . . [S]ome co-workers at the New Brighton store had expressed
hostility towards Black Lives Matter/BLM. The New Brighton store has
a very diverse workforce, and the most diverse workforce of the eleven
stores that are part of the same Home Depot district.
Home Depot USA, Inc., 373 NLRB No. 25, at *32.
Context matters. The activity in dispute was not a display at a random location
in the United States; it was not at a normal moment in time; and it was not a generic
message for equal rights or employee protection. Bo’s BLM message was broadcast
only a few miles from the site of George Floyd’s murder. Community tensions were
extraordinarily high, and significant unrest and turmoil that at times closed this Home
Depot store followed. Bo’s BLM message divisively -- and at times violently -- split
public opinion on a hot button issue, and store employees reflected the division, as
some of Bo’s coworkers responded with “Thin Blue Line” and “Blue Lives Matter”
messages. Bo’s insistence on wearing and refusing to remove the BLM message
posed a clear risk to customer and employee safety. Though Bo had faced no direct
threat, “the slogan reasonably threatened” the security of the workplace. Pathmark
Stores, Inc., 342 NLRB at 379; see Standard Oil Co. of Cal., 168 NLRB 153 (1967),
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and Andrews Wire Corp., 189 NLRB 108 (1971), where employers limited employee
displays of insignia for safety reasons. Home Depot’s limited apron restrictions, “in
light of a recent and widely publicized” moment of civil unrest that impacted the New
Brighton store, were justified. S. New England Tel. Co., 793 F.3d at 95. When the
employer has made “a valid exercise of business judgment . . . it is not the province
of the Board or of this court to substitute its judgment for that of management so long
as the exercise is reasonable and does not interfere with a protected purpose.” NLRB
v. Harrah’s Club, 337 F.2d 177, 180 (9th Cir. 1964). Bo was allowed, indeed
encouraged, to wear other kinds of personalized racial equality pins.
Substantial evidence the Board reviewed and accepted demonstrates that Home
Depot endeavored to root out racism at the store. Management confronted Gumm,
attempted to correct her behavior, and ultimately dismissed her; allowed, supported,
and tried to maintain a Black History Month display; repeatedly met with Bo about
employee concerns and expressed its shared desire to improve working conditions in
the exact ways Bo sought; encouraged Bo to help create DEI working groups;
suggested multiple other messages for Bo’s apron that would demonstrate support for
people of color in the workplace without significant external political and social
implications; and expressed a desire to retain Bo’s unique perspective and passion for
improving the workplace regarding racial sensitivity. “[W]hen an employer
demonstrates, based on the conditions of the workplace, that curtailing the
employees’ right to display [messages] is necessary to its safety objectives, the Board
[and courts] will dismiss allegations that the ban is unlawful.” Albis Plastics &
United Steelworkers, 335 NLRB 923, 924 (2001).
Here, conditions facing the New Brighton Store at this time gave rise to
legitimate safety concerns. Home Depot did not “disparately enforc[e its] policy
against statutorily protected activity while not enforcing it against other similar
activity under similar circumstances.” Stabilus, 355 NLRB at 838; see Titus Elec.
Contracting, Inc., 355 NLRB 1357, 1357 (2010) (finding § 8(a)(1) violation where
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employee was sent home for wearing a union shirt but others were allowed to wear
shirts with nonunion logos). This was a business decision made to preserve the
store’s apolitical face to customers and safeguard employee safety in a risk-filled
environment. The Board majority did not properly balance the competing interests
and “give weight to all of the relevant factors which are involved,” and it “failed to
work out an adequate adjustment between [Bo’s alleged Section 7] right” and the
“right of [Home Depot] to maintain discipline and security in its establishment.”
McDonnell Douglas, 472 F.2d at 547; see Republic Aviation Corp., 324 U.S. at 797-
98. Rather, the Board prioritized employee interests at the expense of Home Depot’s
legitimate business concerns. Tesla, Inc., 86 F.4th at 651, quoting NLRB v. Truck
Drivers, 353 U.S. 87, 96 (1957). In these unique circumstances, Home Depot
demonstrated that the narrow special circumstances defense should apply.
For the foregoing reasons, we vacate the Board’s opinion and order and remand
for further proceedings consistent with this opinion.
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