It’s Concerted Activity, but is it Protected Activity?
We all remember the summer of 2020. The start of Covid. Wearing masks, social distancing, and difficult customers. Oh, and throw protests against police violence and racial discrimination into the mix. It was against this backdrop, that UFCW 3000 filed unfair labor practice charges against Kroger after it banned workers from wearing BLM-related buttons (despite corporate officials expressing similar public support). I represented UFCW 3000 in the matter before I started my current job with Local 367.
An Administrative Law Judge (ALJ) recently found the workers’ action was “concerted” since it involved group action by hundreds of UFCW-represented employees. But was it protected activity or merely an unprotected “political” protest or expression? According to the ALJ’s decision, the action was also protected under the NLRA. Yes, the button action involved a political or social subject. But it was also connected to terms and conditions of employment, including discriminatory enforcement of the dress code policy and racial inequality at work. Regardless of how you feel about BLM, the decision is a win for UFCW workers. Just because a subject may be political or controversial doesn’t mean it can’t be connected to your interests as employees. And, enforcement of work rules or policies should be fair and equitable.
While this is a historic decision and a win that affects thousands of workers in many workplaces across the country, Kroger has appealed the ALJ’s decision to the full National Labor Relations Board in D.C. We will update you on the status of the case once a decision from the NLRB is received.
James G. McGuinness