Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—NLRB: Whole Foods lawfully barred employees from wearing ‘Black Lives Matter’ messaging, (Aug 4, 2026)

By Ronald Miller, J.D.

Employees’ “Black Lives Matter” display did not have a goal related to their terms and conditions of employment or their lot as employees and therefore was not protected by the Act.

Finding that employees were not engaged in activity “protected” under the NLRA when they wore clothes or accessories messaging the “Black Lives Matter” movement, a three-member panel of the NLRB ruled that Whole Foods lawfully barred employees from wearing BLM messaging during working time. The Board agreed with an administrative law judge’s finding that the employees’ BLM display did not have a goal related to their terms and conditions of employment or their lot as employees. Moreover, the Board reversed the ALJ’s finding that Whole Foods violated Section 8(a)(1) of the Act by maintaining, promulgating, and enforcing an overly broad dress code rule in its employee handbook. The Board concluded that the General Counsel’s complaint allegation that the dress code was unlawful was barred by a settlement agreement between Whole Foods and NLRB Regional Offices approved on August 22, 2013. Member Prouty filed a separate opinion dissenting in part (Whole Foods Market, Inc., 375 N.L.R.B. No. 20 (July 31, 2026)).

Black Lives Matter messaging. This case presented the issue of whether employees wearing “Black Lives Matter” messaging on their work uniforms during working time, be it on face masks, pins or buttons, tee-shirts, or other wearable paraphernalia constituted protected activity under Section 7 of the NLRA. Subsumed under that issue was the question of whether employer rules or dress codes enforced or implemented to prohibit such activity violates the Act, and whether disciplinary actions that resulted from violating those rules were unlawful.

On December 3, 2021, a regional director filed a complaint alleging that Whole Foods violated Section 8(a)(1) by prohibiting employees from wearing “Black Lives Matter” messaging during working time; by disciplining, discharging, or constructively discharging employees for doing so; and by implementing and enforcing rules or dress codes that prohibited the wearing of such messaging during working time.

Nationwide protests. The dispute in this case stemmed from the events during the late spring and summer of 2020 when massive BLM demonstrations and protests in hundreds of cities and towns occurred in the wake of the murder of George Floyd by the Minneapolis police on May 25, 2020. In the days and weeks that followed the death of Floyd, employees at various stores throughout the country started wearing BLM messaging, primarily on facemasks, but also on buttons or pins, or printed on tee-shirts or other clothing items.

It was undisputed that soon after employees started wearing BLM messaging, Whole Foods informed them that wearing such messaging during working time was in violation of the employer’s dress code. In many instances, Whole Foods gave employees the option of removing the BLM messaging or “clocking out” and going home. Employees who chose to go home incurred time and attendance or dress policy violations, which in some cases led to the employee’s discharge—or to their resignations. In some instances, employees sporadically continued to wear BLM messaging without incurring discipline—other than being instructed to remove such messaging.

Protected activity. The Board adopted the administrative law judge’s finding that Whole Foods did not violate Section 8(a)(1) by prohibiting its employees from wearing clothing or accessories that displayed the phrase “Black Lives Matter” or its acronym “BLM” during working time, and in disciplining employees for doing so. The Board agreed with the ALJ’s finding that the employees’ BLM display did not have a goal related to the employees’ terms and conditions of employment or their lot as employees and therefore was not protected by the Act.

Accordingly, the Board adopted the ALJ’s dismissal of the allegations that Whole Foods unlawfully forbade BLM display by employees during working time.

Dress code. However, the Board reversed the ALJ’s finding that Whole Foods violated Section 8(a)(1) of the Act by maintaining, promulgating, and enforcing an overly broad dress code rule in its employee handbook. This rule was the product of a settlement agreement reached between Whole Foods and two regional directors for the NLRB, which was approved on August 22, 2013. For more than 8 years, neither the General Counsel nor the NLRB Regional Offices ever indicated to the employer that there was any problem with its compliance with the settlement agreement.

The dress code rule as set forth in the Whole Foods employee handbook fully comported with the settlement agreement, except for one word that was inadvertently omitted from the language required by the settlement agreement. The ALJ reasoned that the omitted word would lead employees to reasonably believe that the dress code rule unlawfully forbade employees from wearing union insignia attached to their clothing, and thus that the rule was unlawful.

However, the Board concluded that the General Counsel’s complaint allegation that the dress code rule was unlawful was barred by the settlement agreement. The violation the General Counsel was alleging here was plainly based on the subject of the 2013 settlement agreement: the employer’s dress code. The General Counsel was not requesting that the settlement agreement be set aside. Thus, the 2013 settlement agreement was properly viewed as a bar to the dress code allegation. Accordingly, the Board dismissed that allegation.

Partial dissent. Member Prouty would affirm the ALJ’s finding that Whole Foods violated Section 8(a)(1) by maintaining and enforcing an overly broad dress code rule in its employee handbook. Prouty argued that the employer never revised its employee handbook to provide for the new dress code rule language it agreed to in the settlement agreement, and so never fully complied with the settlement agreement. The language of the dress code rule maintained by the employer in its handbook was not the language required by the settlement agreement. Instead, it omitted a key word mandated by the settlement agreement. The omitted word substantially altered the meaning of the rule. By omitting the word “printed” from the dress code rule, the employer significantly broadened the scope of the messaging that employees were prohibited from displaying.

The slip opinion is 375 NLRB No. 20.

Attorneys: Matthew C. Peterson for General Counsel. Jeremy M. Brown (Epstein Becker & Green) for Whole Foods Market, Inc. Shannon Liss-Riordan (Lichten & Liss-Riordan) for Savannah Kinzer, Suverino Frith, Lyla Styles, Abdulai Barry, Kirby Burt, Haley Evans, Justine O’Neill, Jolina Christie, Sarita Wilson, Camile Tucker-Colbert, Cassidy Visco, Yuri London, Ana Belen Del Rio Ramirez, and Christopher Michno. Samuel H. Ritterman (Ahmad Zaffarese) for Kayleb Candrilli and Truman Read.

Companies: Whole Foods Market, Inc.

Cases: Labor UnfairLaborPractices AgencyNews