By Daniel Wiessner

Dec 21 (Reuters) – Whole Foods Market Inc did not violate U.S. workers’ labor rights by barring them from wearing Black Lives Matter facemasks, shirts and other apparel, a National Labor Relations Board (NLRB) judge has ruled.

Administrative Law Judge Ariel Sotolongo in a decision issued on Wednesday said that donning Black Lives Matter garb was not protected activity under the National Labor Relations Act because it had little connection to Whole Foods workers’ jobs.

The NLRB General Counsel, who prosecutes unfair labor practice cases, had argued that workers wore the attire in 2020 to make Black coworkers feel safe and supported amid a series of nationwide protests over the treatment of Black people by police. The General Counsel claimed banning the apparel violated workers’ rights to advocate for better working conditions.

But Sotolongo said that regardless of individual workers’ motivations, the General Counsel failed to show that workers had a collective goal related to their employment.

“This represents a helter-skelter, throw-mud-at-the-wall attempt at objectively establishing the mutual aid and protection goal of employees wearing BLM messaging,” the judge wrote.

Sotolongo also ruled that while banning Black Lives Matter attire was legal, a Whole Foods dress code that was in effect from 2013 to 2020 and banned “any visible slogan, message, logo or advertising” was unlawfully broad because it could apply to union pins and buttons.

Whole Foods, which is owned by Amazon.com Inc, said in a statement that it was pleased with the decision.

“Our diverse culture continues to be a source of great pride for Whole Foods Market and we remain focused on creating both a safe and inclusive workplace for all,” the company said.

Shannon Liss-Riordan, who represents Whole Foods workers who filed complaints with the NLRB, said the decision was disappointing and she was considering her options.

“Unfortunately the ALJ did not take note of the … argument that the workers were protesting Whole Foods’ negative response to their concerted activity,” she said.

Liss-Riordan also represented a group of Whole Foods workers in a lawsuit claiming the ban on Black Lives Matter apparel amounted to race discrimination in violation of Title VII of the Civil Rights Act of 1964.

A federal judge in Boston dismissed that case in January, saying Whole Foods had legitimate business reasons to strictly enforce a dress code banning visible slogans or logos. The 1st U.S. Circuit Court of Appeals upheld that decision in June.

Earlier this month, the 1st Circuit heard arguments in a bid by three of the workers involved in that case to revive claims that Whole Foods illegally fired them for wearing Black Lives Matter face masks at work. A judge in dismissing those claims had said there was no evidence that Whole Foods singled out those workers for discipline.

The case is Whole Foods Market Inc, National Labor Relations Board, No. 01–CA–263079.

For Whole Foods: Adam Forman of Epstein Becker & Green

For the workers: Shannon Liss-Riordan of Lichten & Liss-Riordan

Read more:

Whole Foods workers lose appeal over ‘Black Lives Matter’ masks

Judge dismisses Whole Foods workers’ lawsuit over ‘Black Lives Matter’ masks

US court could revive Whole Foods workers’ lawsuit over ‘Black Lives Matter’ facemasks

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Original: AMZN Feed: Whole Foods beats NLRB case over ban on Black Lives Matter apparel