Unfair Labor Practice Found in Nonhire of Union Organizer

By Stephen J. Dunn Aug 9, 2017

A Burger King franchise committed an unfair labor practice by refusing to hire a known union organizer, the 8th U.S. Circuit Court of Appeals held, affirming a decision of the National Labor Relations Board (NLRB).

Under the National Labor Relations Act (NLRA), it is an unfair labor practice to refuse to hire someone based on his or her union activity or affiliation.

[SHRM members-only HR Q&A: What is the function of the NLRA?]

When EYM King of Missouri acquired a Burger King franchise in Kansas City, it immediately hired the restaurant's former manager, LaReda Hayes, and most of its former employees. However, it did not hire Terrence Wise, a known union organizer who was affiliated with the "Fight for $15" campaign, an effort to increase the minimum wage for fast-food workers.

The employer argued that its decision was based on Wise's tardiness, insubordination and unavailability for overnight work. Hayes testified that Wise had taken burgers after a shift and was frequently late. Wise also had recently informed Hayes that he was no longer able to work on Saturday nights or Sundays.

However, the board found that Hayes' testimony was not credible. It noted that she failed to document Wise's tardiness and that Wise had requested only a minor change in his regular schedule. Hayes also contradicted herself as to whether she had reported Wise's conduct to human resources.

In light of Hayes' conflicting accounts and the lack of corroborating evidence, the 8th Circuit held that there was sufficient evidence to support the board's finding that Wise's union-organizing activity was a substantial factor in the employer's decision not to hire him.

NLRB v. EYM King of Missouri LLC, 8th Cir., No. 16-3415 (June 21, 2017).

Professional Pointer: This case emphasizes the importance of documenting misconduct and poor performance. Hayes testified that she documented Wise's performance problems for a while and reported them to HR but eventually stopped because she "never received a response." The court pointed to the lack of documentation in questioning Hayes' credibility.

Stephen J. Dunn is an attorney with Van Hoy, Reutlinger, Adams & Dunn, the Worklaw® Network member firm in Charlotte, N.C.


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