Last month the National Labor Relations Board (NLRB) ruled that a multi-unit Burger King franchisee violated the National Labor Relations Act (Act) by threatening pro-union employees with termination; maintaining a policy that denied access to off-duty employees to all areas of its premises and prohibited solicitation; and disciplining a pro-union employee for engaging in activity protected by the Act.
In 2013, multi-unit owner EYM King purchased a Burger King location in the Ferndale section of Detroit, Michigan which it operated along with 21 other Burger King franchisees located in high crime areas of the city. Two of the employees already working for the Ferndale locations worked part-time for a union and engaged in strikes against the former franchisee owner. The employees alleged that the franchisee violated the Act by engaging in union-busting activities. The NLRB agreed.
The franchisee incorrectly stated on record that it believed it was ‘”plainly entitled’ to prohibit employees from discussing wages, unions or other protected activity during work time and to discipline for such conduct.” Although an employer may prohibit employees from talking about union activity when they are on-the-clock, the rule must also extend to other subjects not connected to work tasks. Since franchisee’s employees were free to discuss other subjects unrelated to work but not unionization, the franchisee’s policy violated the Act.
In addition, the franchisee’s excuse that it was located in a high-crime area as justification for its policy prohibiting access to off-duty employees to its premises and prohibiting solicitation was insufficient to meet the “special circumstances” criteria set by the Supreme Court. The NLRB reasoned that if that were the case then it would “effectively deprive millions of the lowest-paid workers in the United States the ability to assert their Section 7 [Act] rights.”
One of the most interesting points of the decision is the franchisee sending home one of the pro-union employees early from her shift for failing to place pickles on sandwiches in perfect square. The employee was able to show that her disciplinary action was related to her pro-union activity protected under the Act and the franchisee was unable to show that it would have sent the employee home for poor pickle placement in the absence of such activity.
Protests by fast-food workers over wages have made national headlines over the past year. Fast food franchisees must be extra diligent in ensuring that its policies and practices do not violate workers’ rights under the Act or risk time-consuming and costly administrative actions.