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NLRB Administrative Law Judge Finds that Burger King Owners Unlawfully Retaliated Against Employees Who Discussed Union At Workplace

On September 29, 2014, a judge for the NLRB decided against the respondents in the case against EYM King of Michigan, LLC (EYM), owners of 22 Burger King restaurants in the Detroit, MI area. The Court found that the company had violated employees’ rights under the National Labor Relations Act (the Act) both in its direct actions toward the complainants and in its maintenance and enforcement of company policies that are in violation of the Act.

This case happened against the backdrop of large-scale changes in labor relations within the fast food industry. Recently there have been many well-publicized unionizing efforts by fast food and service workers across the country, and the Board recently made a key decision when it decided that the McDonald’s corporation is to be treated as a joint employer with its franchisees in labor lawsuits.

According to the complainants’ allegations in this case, one employee was threatened with termination if she continued to discuss wages or engage in union activity at work.

On another occasion, employee Claudette Wilson parked her car outside the Burger King restaurant as she was preparing to go to work, and gave a union questionnaire to a fellow employee who had just clocked out. Managers came out to the car and confronted Wilson, though not the other employee, accusing her of violating the company’s policy against loitering. They ordered her to leave, which she refused to do. Later that day, after Wilson’s shift started, her manager gave her a written warning for refusing to follow her instruction to leave. Angry, Wilson placed pickles on burgers, rather than in a neat square as the company requires, and the same manager sent her home two hours early.

Aside from being a direct act of retaliation, the judge said, the company’s policies prohibiting loitering, etc., are themselves in violation of the Act. Generally, the workplace is the most apt place for employees to discuss their working conditions, and as such barring solicitation or union activity in the workplace “clearly adversely impacts employees’ exercise of their fundamental statutory rights.” The case law shows fairly clearly that employers are required to allow solicitation or union activity at the work site unless there is some special circumstance to justify restricting it. In this case, the company argues that its no-loitering policy is justified by the restaurant’s location in a high-crime area. The Court was unpersuaded, concluding that the company’s “professed concerns regarding safety in justifying its loitering and solicitation rules are manifestly specious,” since the company “has made no showing as to how this rule enhances safety.”

The judge in this case also found many other policies maintained by EYM to be violative of the NLRA. To take one typical example, the company prohibits employees from engaging in “disrespectful conduct”–for example, protesting outside the workplace, as was done in the present case–or disseminating messages that the company might characterize as “abusive,” “unprofessional,” “disparaging,” etc. Such limitations on the content of employees’ public speech generally violates the Act, since they are broad enough to give employees the reasonable belief that they would be disciplined for discussing their working conditions or taking steps toward unionization.

Such policies are now against the law, and in the end the judge ordered the company to cut out large swaths of its anti-loitering and confidentiality policies and to post a notice of employees’ rights and the outcome of this case.

If you believe your rights under the National Labor Relations Act have been violated, please contact The Harman Firm, LLP.

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