An employee filed complaint after Home Depot told him to take off his BLM propaganda. NLRB judge dismisses the case, corporate policy is not discriminatory.

1 year ago

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ATLANTA, GA – The Home Depot won a major victory regarding what they can prohibit their employees from endorsing in the workplace.

In 2021, the National Labor Relations Board (NLRB) filed a complaint against the home improvement retail giant for what they called a violation of employee rights because they prohibited the workers from wearing BLM imagery on the job.

Last week, a judge dismissed the complaint by the NLRB on behalf of Antonio Morales, Jr.

The complaint originated with a single employee at one of their stores in Minnesota.

According to the complaint, obtained by the Epoch Times via a Freedom of Information Act request, “the worker had been wearing a BLM logo on his apron since August 2020 and engaged in related conversations with coworkers. The employee was suspended in 2021 following a refusal to remove the logo and later resigned.”

The corporation responded to the allegations when the complaint was first filed.

“The Home Depot does not tolerate workplace harassment of any kind and takes all reports of discrimination or harassment seriously, as we did in this case,” said the company spokesperson, Sara Gorman, dismissing the allegations as misrepresentations.

“We disagree with the characterization of this situation and look forward to sharing the facts during the NLRB’s process.”

But the facts of the case didn’t stop the NLRB from issuing an August 2021 press release that claimed that the employee was fired for refusal to remove the button.

Home Depot has a store dress code that expressly prohibits displays of causes or political messaging unrelated to workplace matters.

Given that the corporation operates more than 2,200 stores in North America, the complaint asked for a nationwide “notice-posting” remedy. In essence, they wanted to force Home Depot to post signs making their staff aware that they were allowed to wear those buttons if they wanted to.

After all, the board argued, it is their right under the National Labor Relations Act.

According to the Region 18 office, raising issues of racial harassment with coworkers and managers as well as displaying a Black Lives Matter slogan on his apron, are all protected actions.

“Issues of racial harassment directly impact the working conditions of employees. The NLRA protects employees’ rights to raise these issues with the goal of improving their working conditions. It is this important right we seek to protect in this case,” said Region 18 Director Jennifer Hadsall.

So, wearing a BLM button on your apron does that?

If anything, the button could cause more harm to conversations than it does good.

The complaint also argued that the store “threatened employees not to engage in activity regarding racial harassment.”

In a bit of confusing word play, the press release said:

“…the store unlawfully enforced its otherwise lawful dress code and apron policies.”

How exactly does that work?

If the dress code is lawful and you enforce it, how then do you enforce it unlawfully?

One has to wonder if the NLRB flagged it as “unlawful” because of the subject matter. Would they have filed the same complaint had Home Depot told an employee he or she were not allowed to put on a Thin Blue Line flag pin on their apron?

We reached out to the NLRB to ask that very question. As of the time of this writing, we have not received a response.

While we cannot predict their response, should they provide one, it may go something like this.

There is a vast difference between discussions surrounding racial discrimination and the BLM movement and supporting law enforcement.

We would argue that given BLM’s stance is based entirely on perceived police “brutality” targeting solely people of color, the actual targeting of police officers across our country warrants the same level of credence and even protection.

The NLRB legal team did not discuss the political nature of the BLM. It merely argued that this particular employee was “required to choose between engaging in protected concerted activity, including displaying the ‘BLM’ slogan” and quitting.

But that contradicts their own press release that said he was fired.

One could easily argue that he wasn’t required to choose between those two options. He could have complied with the company’s directive and kept his job.

The NLRB judge hearing the arguments in the complaint, Paul Bogas, ruled that BLM Messaging does not fall within an employee’s protected concerted activity and that the NLRB lawyers had failed to sufficiently reason their argument.

He rightly stated that the BLM logo does nothing to improve terms and conditions of employment.

“BLM messaging is not inherently concerted. Nor does it have an objective, and sufficiently direct, relationship to terms and conditions of employment to fall within the mutual aid and protection clause,” Bogas wrote in his opinion.

Flor clarity, “concerted activity” is defined by the NLRB as “actions done with coworkers for the purposes of improving work conditions, earnings, and related engagement.”

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BLM Home Depot Politics at work

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Additionally, you agree not to:

Engage in any conduct that could restrict, inhibit, disable, overburden, damage, or otherwise impair the Site or interfere with any other party’s use of the Site, regardless of intent, purpose, or knowledge.

Use any manual or automated software, device, script, robot, spider, or other automatic device, process, or means, to access, “scrape,” “crawl,” or “spider” the Site for any purpose, including monitoring or copying any of the material on the Site.

Use any device, software, or routine that interferes with the proper working of the Site.

Transmit or distribute material that may be harmful to or interfere with any part of the Site or any third-party’s networks, systems, services, or websites (such prohibited harmful content includes, but is not limited to, viruses, worms, or Trojan horses, or any other computer code, files, or programs designed to interrupt, destroy, overburden, or limit the functionality of any computer software or hardware or telecommunications equipment)

Attempt to gain unauthorized access to, interfere with, damage, or disrupt any part of the Site, any server on which the Site is stored or hosted, or any server, computer, or database connected to the Site.

Attack the Site via a denial-of-service attack or a distributed denial-of-service attack.

Use any part of the Site for purposes of competitive analysis thereof, the development of a competing product or service, or any other purpose that is to the Company’s commercial disadvantage.

Otherwise attempt to interfere with the proper working of the Site.

User Contributions

Individual users who have registered user accounts will generally be able to create a personal profile and comment on, leave reviews about, and rate businesses listed on the Site. Individual users may also list businesses, and those businesses may be claimed by an owner or other authorized party creating a Business Account for such business. Registered Businesses will generally be able to create a business profile and respond to user comments, reviews, and ratings. The Site may also provide opportunities for registered users and Registered Businesses to interact via message boards, chat rooms, bulletin boards, or other interactive features.

All of the foregoing functionalities are collectively referred to as “Interactive Services,” which Interactive Services allow users to post, submit, publish, display, or transmit to other users or other persons or anyone who can access the Site (hereinafter, “post”) content or materials (collectively, “User Contributions”) on and through the Site.

All User Contributions must comply with the Content Standards set out in these Terms of Service.

Any User Contribution you post through the Site will be considered non-confidential and non-proprietary. By providing any User Contribution, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.

You represent and warrant that you own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. Without limiting the foregoing, you acknowledge that you could be liable if your User Contributions contain material that is, without limitation, false or defamatory, misleading, unlawful, or violates any other third-party rights such as privacy, publicity, intellectual property rights, and the like.

We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Site.

Monitoring and Enforcement; Termination

We have the right to:

Remove or refuse to post any User Contributions for any or no reason in our sole discretion.

Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Service, including the Content Standards, any applicable Transaction Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Site or the public, or could create liability for the Company.

Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.

Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site.

Terminate or suspend your access to all or part of the Site for any or no reason, including without limitation, any violation of these Terms of Service or any applicable Transaction Agreement.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials through the Site. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

Notwithstanding the foregoing, we cannot review all material before it is posted through the Site, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

Content Standards

These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:

Contain any material that is defamatory, obscene, scandalous, profane, indecent, abusive, offensive, threatening, harassing, violent, hateful, inflammatory, or otherwise objectionable.

Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.

Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.

Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Service, or any applicable Transaction Agreement, or our PRIVACY POLICY.

Be likely to deceive any person.

Promote any illegal activity, or advocate, promote, or assist any unlawful act.

Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.

Impersonate any person or business, or misrepresent your identity or affiliation with any person or organization.

Involve commercial activities of any kind, including without limitation sales, contests, sweepstakes, and other sales promotions, barters, or advertising. Notwithstanding the foregoing, the holder of a Business Account may engage in commercial use on behalf of the applicable Registered Business, solely in conformance with the Company’s intended use of providing a review website and mobile application (“Business Commercial Use”), for the following use cases: (i) generally promoting the Registered Business on the Registered Business’s profile, (ii) responding to user comments, reviews, and ratings regarding the Registered Business, and (iii) engaging in commercial activity such as advertisements or other solicitations as expressly permitted pursuant to a Transaction Agreement.

Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

Copyright Policy

We respect the intellectual property of others and ask that users of the Site do the same. In connection with the Site, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of the Site who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through use of the Site, unlawfully infringing your copyrights in a work, and wish to have the allegedly infringing material removed, you must submit a written notice to our designated copyright agent in accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA "). The written notice must include substantially the following:

a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right allegedly infringed;

identification of the copyrighted works that you claim to have been infringed;

identification of the material on our Site that you claim is infringing and that you request us to remove;

sufficient information to permit us to locate such material;

your address, telephone number, and e-mail address;

a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and

a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

Please note that, pursuant to Section 512(f) of the DMCA, any knowing misrepresentation of material fact in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred in connection with the written notification and allegation of copyright infringement.

The Designated Copyright Agent for the Company is:

Silent Partner Marketing

866-432-6456

info@thesilentpartnermarketing.com

Reliance on Information Posted

The information presented on or through the Site is made available solely for general informational purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor or user of the Site, or by anyone who may view or be informed of any of its contents.

The Site may include content provided by third parties, including materials provided by: other users, bloggers, third-party licensors, syndicators, aggregators, and/or other services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

Updates to the Site

We may make necessary deployments of changes, updates or enhancements to the Site at any time. We may also add or remove functionalities or features, or we may suspend or stop the Site altogether. We will have no liability for any suspension or cessation of the Site or any other services in connection with the Site except as may be set forth in an applicable Transaction Agreement.

Linking to the Company’s Site and Social Media Features

You may link to the homepage of the Site, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part.

Certain functions on the Site may provide certain social media features that enable you to:

Link from your own or certain third-party websites to certain content made available through the Site.
Send emails or other communications with certain content, or links to certain content, through the Site.
Cause limited portions of content on certain parts of the Site to be displayed or appear to be displayed on your own or certain third-party websites.

You may use these features solely as they are provided by us and solely with respect to the content they are displayed with. Subject to the foregoing, you must not:

Establish a link from any website that is not owned by you.
Cause the Site or portions thereof to be displayed on, or appear to be displayed by, any other website, for example, framing, deep linking, or in-line linking.
Link to any part of the Site other than the Company’s web homepage.
Otherwise take any action with respect to the materials made available through the Site that is inconsistent with any other provision of these Terms of Service or any applicable Transaction Agreement.

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Service.

You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.

We may disable all or any social media features and any links at any time without notice in our discretion.

Third-Party Materials

The Site may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising and including on and in connection with Business Accounts (collectively, “Third-Party Materials”). You acknowledge and agree that the Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. The Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or through the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

YOUR USE OF THE SITE IS AT YOUR OWN RISK. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS MAY BE CONTAINED IN AN APPLICABLE TRANSACTION AGREEMENT. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVERS THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE MEETS YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Limitation of Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, ANY WEBSITES LINKED TO THE SITE, ANY CONTENT ON THE SITE OR SUCH OTHER WEBSITES, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Indemnification

You agree to defend, indemnify, and hold harmless the Company and its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Service or any applicable Transaction Agreement or your use of the Site, including, but not limited to, your User Contributions, any use of the content, services, and products made available through the Site other than as expressly authorized in these Terms of Service or any applicable Transaction Agreement, and your use of any information obtained from the Site.

Governing Law

All matters relating to the Site and these Terms of Service and any applicable Transaction Agreement, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction) and the Federal Arbitration Act.

Arbitration

You and the Company agree that any dispute arising out of or related to the Terms of Service, any Transaction Agreement, the Site, your use of the Site, and/or any goods or services purchased from the Company or otherwise through or in connection with the Site, will be exclusively resolved through binding arbitration pursuant to the then-current rules of JAMS before a single neutral arbitrator working under the auspices of JAMS. The arbitration shall be held in Henderson, Nevada, or, if this location is not available pursuant to JAMS, the arbitration shall be held in Las Vegas, Nevada. The arbitrator’s award may be entered in any court of competent jurisdiction.

THERE IS NO JUDGE OR JURY IN ARBITRATION. BY USING THE SITE, AND AGREEING TO THESE TERMS OF SERVICE AND ANY APPLICABLE TRANSACTION AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO HAVE ANY DISPUTE DECIDED IN A COURT OF LAW BEFORE A JUDGE OR JURY. Further, court review of any arbitration award is limited.

Notwithstanding any provision in these Terms of Service to the contrary, the prevailing party, as determined by the arbitrator, shall be entitled to recover his, her, or its reasonable attorneys’ fees and costs and expenses incurred in connection with the arbitration.

YOU AGREE THAT ANY ARBITRATION WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. IN NO EVENT MAY ANY SUCH ARBITRATION BE BROUGHT ON BEHALF OF A CLASS OR IN ANY OTHER CONSOLIDATED OR REPRESENTATIVE ACTION. Notwithstanding any provision in these terms to the contrary, if the class-action waiver in the prior sentence is deemed invalid or unenforceable, however, neither you nor the Company are entitled to arbitration.

Limitation of Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, ANY TRANSACTION AGREEMENT, OR THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Waiver and Severability

No waiver by the Company of any term or condition set out in these Terms of Service or any applicable Transaction Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Service or any applicable Transaction Agreement shall not constitute a waiver of such right or provision.

If any provision of these Terms of Service or any applicable Transaction Agreement is held by an arbitrator or by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service or any applicable Transaction Agreement will continue in full force and effect.

Entire Agreement

The Terms of Service, any applicable Transaction Agreement, and our Privacy Policy constitute the sole and entire agreement between you and the Company regarding the Site and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Site.

Your Comments and Concerns

The Site is operated by RightOnCenter, LLC.

All feedback, comments, requests for technical support, and other communications relating to the Site should be directed to: support@alignusapp.com or 8565 S Eastern Ave, Suite 150 Las Vegas, NV, 89123