Whole Foods Claims Constitutional Right to Disallow ‘Black Lives Matter’ Masks

Josh Eidelson
Fri, January 7, 2022




(Bloomberg) -- U.S. labor board prosecutors are trying to violate Whole Foods Market’s copyright and constitutional rights by forcing it to let employees wear “Black Lives Matter” masks at work, the Amazon.com Inc. subsidiary claims.

In a Dec. 17 filing with the National Labor Relations Board, Whole Foods denied the agency general counsel’s allegations that the company violated federal labor law by banning employees from wearing “Black Lives Matter” insignia and punishing staff around the country who did. The filing is a response to the labor board’s accusation that by prohibiting Black Lives Matter messages at work, the company interfered with employees’ rights under the National Labor Relations Act to engage “in concerted activities for their mutual aid and protection.”

Whole Foods counters that it’s the one whose rights are being violated. The company’s filing, obtained via a Freedom of Information Act request, accuses the labor board’s general counsel, Jennifer Abruzzo, of trying to unconstitutionally “compel” speech by Whole Foods in violation of its First Amendment rights. The upscale grocer also accuses her of “unlawfully infringing upon and/or diluting WFM’s protected trademarks” by trying to mandate that it allow the display of a “political message in conjunction with” its trademarked uniforms and logos.

Whole Foods contends that Section 7 of the NLRA, which protects employees’ right to take collective action related to working conditions, doesn’t extend to workers’ BLM messages, which it calls “political and/or social justice speech.” The company’s filing argues that “BLM” and related phrases “are not objectively understood to relate to workplace issues or improving working conditions at WFM’s retail grocery stores” or employment terms and conditions in general. “Employees do not have a protected right under Section 7 of the Act to display the phrase ‘Black Lives Matter’ or ‘BLM’ in the workplace,” the company’s attorneys wrote.

A Whole Foods spokesperson declined to comment Friday on the filing. The company said last month that its dress code policy doesn’t single out specific slogans but prohibits any messages unrelated to its business. The case is slated to be heard by an agency judge at a trial in March.

Abruzzo, appointed by President Joe Biden, has argued that “racial justice advocacy” by workers such as displaying a BLM slogan at work falls squarely within the scope of what she called the “group action to improve their lot as employees” that the 1935 labor law protects. “The employer certainly can control whether people of color get harassed and discriminated against at their workplace,” she said in an interview last month. Workers, Abruzzo argued, can say, “We’re about a broader movement. But that broader movement flows into our smaller workplace universe.”