NLRB: Kroger Violated Labor Law with Black Lives Matter Ban

The National Labor Relations Board (NLRB) has ruled that two Kroger subsidiaries violated federal labor law by prohibiting unionized employees from wearing Black Lives Matter (BLM) buttons and face masks without first bargaining with their union.

In a Sept. 30 decision, the board affirmed an administrative law judge’s finding that Fred Meyer Stores and Quality Food Centers (QFC) unlawfully changed employees’ working conditions during the summer of 2020. The companies, which operate grocery stores in Washington state, had barred workers from displaying BLM messages and sent several employees home for refusing to remove the insignia.

The three-member panel found that the companies violated Sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act (NLRA), which prohibit employers from refusing to bargain collectively and interfering with employees’ protected labor rights.

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Dispute Dates Back to George Floyd Protests

The case originated amid nationwide demonstrations following the May 2020 killing of George Floyd. Employees at several Fred Meyer and QFC stores began wearing BLM buttons and face masks to express solidarity with the movement. The dispute arose even as Kroger publicly expressed support for racial justice initiatives.

Although both subsidiaries maintained written dress codes restricting unauthorized insignia, employees had historically been permitted to personalize their uniforms with buttons supporting political causes, LGBTQ+ rights, union activities, and other messages. Management’s decision to enforce stricter restrictions against BLM insignia therefore represented a departure from established workplace practices.

United Food and Commercial Workers Local 21, which represented the affected employees, challenged the restrictions. The dispute also involved union-issued buttons displaying both BLM messaging and the union's name. 

Separately, QFC introduced a new dress code policy concerning COVID-19 face masks without providing the union notice or an opportunity to bargain.

Board Focuses on Bargaining Obligations

In its decision, the board emphasized that employers cannot substantially change established workplace practices without first notifying and bargaining with employees’ union representatives.

The companies’ history of permitting unauthorized buttons undermined their argument that the BLM restrictions merely enforced existing policies.

The ruling follows a May 2023 decision by Administrative Law Judge Mara-Louise Anzalone, who found that the employees’ displays constituted protected collective activity aimed at promoting a workplace free from racial discrimination. 

However, the board declined to decide whether the BLM displays independently qualified as protected concerted activity under the NLRA. Instead, it concluded that the companies’ failure to bargain was sufficient to establish the violations and justify the remedies.

The board ordered both subsidiaries to rescind the unlawful changes, compensate affected employees for lost wages and other financial harms, address potential tax consequences from back-pay awards, and remove references to the incidents from employee records.

For unionized employers, the decision underscores that long-standing workplace practices can create bargaining obligations even when written company policies appear to permit stricter enforcement. Changes to dress codes, employee expression policies, and other working conditions may require negotiations before implementation, particularly when employees face financial consequences for noncompliance.