Last week, a federal appellate Court upheld a National Labor Relations Board (“NLRB”) ruling that a Burger King franchisee violated the National Labor Relations Act (“NLRA”) when it refused to hire an employee because the employee had previously engaged in union activity. The franchisee purchased a Burger King franchise in 2015 where employee Terrance Wise (“Wise”) had worked since 2012. During his employment at Burger King, Wise had taken a leadership position with the Worker’ Organizing Committee, which advocated for fast food workers to earn $15 per hour. Wise was also involved in unfair labor charges brought against the franchise at which he worked. After the sale was completed, Burger King rehired the general manager and several other employees but did not rehire Wise. Wise then filed charges with the NLRB.
Burger King stated that Wise was not rehired because of a change in his availability as well as “insubordination,” based on several warnings for tardiness and a warning for cooking too much food. The Court concluded that substantial evidence supports the NLRB’s order that Burger King’s decision to not hire Wise was due, at least in part, to his involvement in protected concerted activities and the reasons offered by Burger King were pretextual. The Court took specific note that Wise had only limited his availability on Saturday nights and Sunday and had only a minor disciplinary record spread out over the course of his employment. While noting that the evidence was circumstantial, the court stated the evidence was substantial enough to support the NLRB’s determination that the decision to not rehire Wise was based on an improper motivation.
COUNSEL TO MANAGEMENT:
This case demonstrates a classic “no-no” in the employer-employee relationship when an employee or employees engage in labor activities. Generally under the NLRA, it is unlawful for employers to discharge, lay off or discipline employees, or refuse to hire job applicants because they are pro-union, even if the protected concerted activity took place under different ownership. There are (of course) exceptions to this rule. However, with union activity beginning to heat up, employers should be aware of how to deal with employees who may become union puppets and the recourse available if an employee or employees begin to disrupt business activities. Contact The Saqui Law Group with all questions regarding union activity and employer rights.