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Summary: A major Burger King franchise has been found to be in violation of several labor laws, including punishing an employee for the arrangement of pickles on a sandwich.
The National Labor Relations Board issued a ruling Monday that held a large Michigan Burger King franchise had committed several variations of “union-busting” in the wake of recent strikes. The Huffington Post reports that EYM King, which operates 22 Burger King restaurants in the Detroit area, violated labor laws by threatening an employee for discussing protests on the job; issuing a disciplinary warning to a union sympathizer; and enforcing a “no solicitation” rule on its workers.
A pro-union worker was even sent home illegally one day. The worker’s problem? She did not “put pickles on her sandwiches in perfect squares as she was supposed to do,” administrative law judge Arthur J. Amchan wrote in his opinion.
Fast food strikes have been common over the past two years. Many fast food corporations have been unsure how to handle the newfound camaraderie between employees nationwide. EYM King’s actions to address the issue violated labor laws, which caused the labor board’s general counsel to file a complaint against them in May.
At the Burger King on West 8 Mile Road in Ferndale, Michigan, two part-time workers, Claudette Wilson and Romell Frazier, had participated in fast-food strikes. Wilson and Frazier were also part-time paid organizers for D15, which is an employee group that is under the Fast Food Forward network. The Fast Food Forward network is supported by the Service Employees International Union.
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Amchan wrote that “Frazier regularly talked about the Union and strikes at work.” One day last October, a manager said to Frazier that “if he was talking about striking again, he’d soon be picking up his paycheck.”
The law states that discussing wages, working conditions or unionization with fellow employees is “protected concerted activity.” It is illegal to punish a worker for discussing these issues. Nevertheless, EYM King argued that it was “plainly entitled” to prohibit employees from discussing these matters. In response, Amchan said, “This assertion is simply incorrect.”
Further, in September 2013, Wilson was reprimanded for visiting the store on one of her days off. Wilson stopped by to speak with workers who were outside. Wilson asked one of her coworkers, who had just gotten off work, to complete a wages questionnaire. The manager informed Wilson that she was in violation of the store’s “loitering and solicitation policy.” Wilson was written up by the manager.
Amchan added that enforcing such a policy violated the National Labor Relations Act. The judge wrote that a place of employment is a “particularly appropriate place” to hand out materials or discuss organizing, since it’s “the one place where employees clearly share common interests.” Additionally, “this is particularly true in the instant case where some of the workers are lower paid individuals who commute to work via bus.”
Amchan also criticized EYM King for trying to justify the no-solicitation policy. The company stated that the policy was necessary because the restaurant was in a “high crime” area. Amchan opined, “To give credence to such an explanation would effectively deprive millions of the lowest-paid workers in the United States of the ability to assert their Section 7 rights. As I pointed out numerous times at trial, there is no material difference between security concerns in Detroit and those in every inner-city in this country.”
The day after Wilson was written up for “violating” the no-solicitation rule, she was sent home two hours early for her less-than-perfect placement of pickles on sandwiches. The ruling reads, “Wilson admits that she did not put pickles on her sandwiches in perfect squares as she was supposed to, due to her anger over the written warning she received. However, given Respondent’s animus toward her protected activity, as evidenced by the illegal warning given to her the same day, I find that the General Counsel has made a prima facie that her discipline (being sent home early) was related to Wilson engaging in protected activity in Respondent’s parking lot the day prior.”
Ultimately, the judge ruled that EYM King must cease and desist from infringing upon its workers’ rights to organize. EYM King must also change its solicitation policy so that the policy complies with applicable laws. Wilson also must be paid any wages she lost for the pickle placement incident, and her written reprimand must be rescinded.
A spokesperson for Burger King stated, “Burger King Corporation does not make scheduling, wage or other employment-related decisions for the franchisees.” It clarified that franchisees “independently own and operate” all Burger King restaurants.
Major corporations such as Burger King are typically protected from labor law violations due to their franchising agreements. The franchisees tend to take the fall for violations. However, the National Labor Relations Board has recently named McDonald’s as a “joint employer” with one of its franchisees, so this protection may eventually dissolve.
Photo credit: huffingtonpost.com
