Burger King Corporation v. National Labor Relations Board

725 F.2d 1053, 115 L.R.R.M. (BNA) 2387, 1984 U.S. App. LEXIS 26438

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 13, 1984
• Docket: 82-1968, 83-5076
• Status: Published

Opinions

MORTON, District Judge.

The United Labor Union (ULU) had been engaged in an organizing drive at the Burger King restaurant located at Michigan Avenue and Martin in Detroit, Michigan. On Thursday morning, May 28, 1981, at about 11:30 a.m., a number of off-duty employees accompanied by a union organizer entered restaurant 768 and took over the restaurant. Some of the employees on duty, including Cynthia Diane Williams, joined the takeover. As á result of the said activity, Burger King suspended certain employees involved in the takeover. However, during the melee ensuing as a result of the takeover of the restaurant, Gregg Barnhardt, who had arrived some IV2 hours after the takeover, asked Cynthia Williams, “What happened that made everyone so angry?” She proceeded to answer. Barnhardt then asked what a union could do for the employees. Thereupon the conversation was terminated. Williams testified that she did not feel intimidated by the conversation.

On May 28, 1981, Barnhardt noticed that Williams was wearing an unauthorized “ULU” button. He asked her if she knew that wearing the button was against company policy. She removed the button. Griggs, a drive-in window employee of Burger King who greeted customers, on hearing the conversation between Barn-hardt and Williams removed her ULU pin.

Charges were filed with the National Labor Relations Board. We are concerned with only two of those charges: One, that the conversation between Barnhardt and Williams was coercive in nature, and two, that the enforcement of the rule by Burger King against the unauthorized wearing of buttons and other adornment by employees was improper.

The administrative law judge held that the conversation between Barnhardt and Williams was coercive and violated Section 8(a)(1) of the Act. He dismissed the charge regarding button wearing involving employee Griggs. The NLRB sustained the finding that the conversation between Barnhardt and Williams was coercive and reversed his ruling that the company was permitted to require the removal of the labor union buttons.

An examination of the record in the case reveals that the environment at the restaurant on May 28, 1981, was confused. The inquiry to determine what had been the catalyst for the events made by a supervising employee IV2 hours after the labor confrontation is innocuous at best. His question to the effect “What can a union do for you?” is far from coercive. This court has long held that inquiries alone do not amount to coercion. The test is set forth in N.L.R.B. v. Elias Bros. Big Boy, Inc., 325 F.2d 360 (6th Cir.1963) and reaffirmed in National Labor Relations Board v. Streamway Division of the Scott & Fetzer Company, 691 F.2d 288 (6th Cir.1982); see also Charge Card Association v. National Labor Relations Board, 653 F.2d 272 (6th Cir.1981). The determination by the NLRB regarding coercive interrogation will not be enforced.

As to the labor union button worn by Griggs, the employee who had contact with the public, we find that all of the Burger King food-handling employees are provided with identical uniforms which they are required to wear on the job in a neat and well-pressed condition. The policy includes a published regulation that “only company approved name tags, buttons and alterations in uniforms are allowed.” The administrative law judge found:

I place little reliance on the general counsel’s alternative argument that the respondent disparately applied its general regulation permitting employees to wear nonunion related buttons and insignia on their uniforms but restricting them in the wearing of union buttons. Two witnesses testified that they have either seen or personally worn buttons to work wearing [sic, bearing] such descriptions as “Kiss Me, I’m Polish” or containing fuzzy, smiley faces. These rare and incidental departures from the norm do not establish a company practice, either locally or nationally, of permitting deviations from its published rule. Mrs. Amato testified credibly that she repeatedly warned employees that the wearing of buttons and insignia, even including religious insignia, violated company policy and regularly required employees to remove such insignia while at work.

Note 5, App. p. 20. The record supports his finding.

Here Burger King has attempted to project a clean, professional image to the public. It has consistently enforced its policy against wearing unauthorized buttons in a nondiscriminatory manner. It is a national fast food chain deriving much of its recognition from its uniform public image. It is not asserted that this policy had its inception because of labor unions or union activities. There are special circumstances which justify this prohibition. See National Labor Relations Board v. Harrah’s Club, 337 F.2d 177 (9th Cir.1964); see also, Larand Leisurelies, Inc. v. National Labor Relations Board, 523 F.2d 814 (6th Cir.1975); Davi-son-Paxon Company, a Division of R.H. Macy & Company v. National Labor Relations Board, 462 F.2d 364 (5th Cir.1972). The NLRB order regarding union buttons will not be enforced insofar as it applies to employees who have contact with the public. We think the rule in this circuit should be that where an employer enforces a policy that its employees may only wear authorized uniforms in a consistent and nondiscriminatory fashion and where those employees have contact with the public, a “special circumstance” exists as a matter of law which justifies the banning of union buttons.