On Jan. 24, 2017, the National Labor Relations Board issued a decision affirming a 2016 ruling by Administrative Law Judge Christine Dibble that held, among other things, that EYM King of Missouri, LLC (EYM) d/b/a Burger King, Kansas City, Missouri violated Section 8 (a)(1) of the National Labor Relations Act when it issued discipline to six employees who engaged in a one-day strike.
The NLRB ordered EYM to cease and desist from disciplining employees for engaging in a strike or supporting Workers Organizing Committee-Kansas City (WOC-KC), a local outpost of the national Workers Organizing Committee (WOC) and to remove from its files any reference to the unlawful disciplines of the six employees.
WOC is a union of fast food workers which has been working for the last several years to unionize low wage workers, increase wages, and improve working conditions. As part of the WOC’s national campaign to set the minimum wage at $15 an hour for fast food workers, WOC-KC helped to organize a one-day strike at EYM’s 47th Street Burger King on April 15, 2015. Six employees engaged in the strike and were subsequently issued written warnings for failing to appear for their scheduled shifts.
EYM argued that the employees lost the protection of the Act because they were engaged in “intermittent strikes,” deliberately scheduled to “harass EYM and other fast food employers into a state of chaos.” Judge Dibble disagreed, stating that “[c]learly, a single one-day strike does not constitute intermittent strikes” and that EYM’s evidence: (1) that the staff shortage caused customer complaints; and (2) that employees working during the strike had to work harder did not rise to the level necessary to show that the strike negatively impacted the company. Likening the day as no more chaotic than a typical day when an employee calls off, Judge Dibble stated “[i]t is difficult for me to discern how a few minutes longer wait time for customers to place and order or receive their food or employees having to work harder amounts to harassment of the Respondent into a state of chaos.”
Importantly, in addition to the issue of a higher minimum wage, it was held that the strike was also in response to specific grievances the employees had against EYM, such as the lack of protective equipment.
Because some employees had delivered a strike notice to the franchisee on the day of the strike and that “six employees, all of whom are active in WOC-KC, were absent on the day of the strike would not appear as coincidental to a reasonable person,” Judge Dibble found that EYM was aware the employees’ protected concerted activity at the time discipline was issued. Therefore, it was held that EYM violated the Act by issuing discipline to the employees merely because they went on strike.
This decision by the Board is an important victory for the national “Fight for 15” campaign, spearheaded by the Service Employees International Union (SEIU) and will likely have important and relevant implications going forward. To read the decision in its entirety, see EYM King of Missouri LLC and Workers’ Organizing Committee-Kansas City, Case 14-CA-150321, before the National Labor Relations Board.