By Josh Eidelson | Bloomberg
Amazon.com Inc.’s Whole Foods Market is pointing to the landmark US Supreme Court ruling in June that allowed a business owner to refuse services to same-sex couples as it argues it shouldn’t be forced to let workers wear “Black Lives Matter” masks.
National Labor Relations Board prosecutors have accused the grocer of stifling worker rights by banning staff from wearing BLM masks or pins on the job. The company countered in a filing that its own rights are being violated if it’s forced to allow BLM slogans to be worn with Whole Foods uniforms.
Amazon is the most prominent company to use the high court’s ruling that a Christian web designer was free to refuse to design sites for gay weddings, saying the case “provides a clear roadmap” to throw out the NLRB’s complaint.
The dispute is one of several in which labor board officials are considering what counts as legally protected, work-related communication and activism on the job. One NLRB judge ruled this year that Kroger Co. workers had a right to wear the BLM slogan to promote a “pro-justice workplace,” while a different agency judge concluded last year that Home Depot Inc. workers have no such right because BLM messaging isn’t directly related to employment conditions.
Both cases are now pending before the NLRB members in Washington. The NLRB can order companies to change policies or reinstate fired workers but lacks the power to hold executives personally liable or make companies pay punitive damages for violations.
Whole Foods’ argument may be a stretch, but it’s a sign of things to come, said University of California at Berkeley law professor Catherine Fisk. The Supreme Court ruling will embolden more businesses to bring First Amendment challenges to government regulations, which can expect a friendlier reception given the current conservative makeup of the federal judiciary.
“The court opened the door to arguments like Whole Foods’,” Fisk said. “I expect we will see a lot more.”
The company argued in its filing Monday that the labor agency’s general counsel, Jennifer Abruzzo, who was appointed by President Joe Biden, is trying to control how Whole Foods presents itself to customers with her “preferred social, political and/or human rights message.”
While Amazon has displayed the “Black Lives Matter” slogan on its own website, Whole Foods argued at a hearing last year that the movement is “controversial,” and is viewed by former President Donald Trump and many of his supporters as a “symbol of hate.” Allowing workers to wear the slogan could create danger in the stores, the company said.
An administrative judge who heard evidence in the case last year asked both sides to weigh in on how recent precedents including the wedding website case should influence his forthcoming ruling. Whatever the judge rules can be appealed to members of the labor board, presidential appointees in Washington DC, and from there to federal court.
In its own filing Monday, NLRB prosecutors said the wedding case has no bearing on their case against Whole Foods, because longstanding precedent protects employees’ right to wear work-related buttons such as union pins that their boss might disagree with.
The agency also argued that unlike the web designer, Whole Foods isn’t the one speaking when workers wear the BLM masks. Whole Foods, the general counsel’s office wrote, “is not seeking to refrain from speaking itself, but claiming a First Amendment right to stop its employees from speaking.”
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