Legal

There’s No Such Thing as a Free Lunch, Unless You’re the NLRB

By Jon Hyman

Jun. 25, 2014

Let’s say you’re a popular Kansas City barbecue chain that provides employees the benefit of a free meal during each employee’s shift. Let’s say a labor organization, upset at your low wages, organizes a one-day strike in the hopes of “encouraging” you to raise your employees’ rate of pay to $15 an hour. Your employees exercise their rights under the National Labor Relations Act to walk of the job for a day in support of a demand for higher wages, and then exercise their right to return to work the following day. But, when they return to work, the free-lunch benefit they had been receiving is no longer available.

In Gates & Sons Barbeque of Missouri, Inc. (June 17, 2014), and National Labor Relations Board Administrative Law Judge concluded that the employer’s elimination of the free-lunch benefit violated the NLRA as retaliation against the employees for their one-day wage strike:

Shipley, the store manager with authority to continue or discontinue the meal benefit, told employees that if they participated in the strike they would “feel [his] wrath,” “might has well find another place of employment” and would be terminated.… These statements are more than sufficient to establish that the Respondent bore animosity towards the protected strike activity, but the timing of the action makes the case even stronger. The Respondent first notified employees that the meal benefit was being discontinued immediately upon their return to duties after the strike.

As a remedy, the ALJ ordered the employer to reinstate the free-meal benefit.

We’ve looked at a lot of protected concerted activity cases in the last few years. Unlike the social media and workplace communication cases, this one is pretty straight forward. You can’t take away a benefit or otherwise retaliate against employees when they strike over wages. But, this case raises a deeper point. By all appearances, this employer did not know this basic principle of labor law. Employers have an obligation to educate themselves about the laws that govern their relationship with their employees. This case was low-hanging fruit for the Board. Don’t leave your fruit hanging.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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There’s No Such Thing as a Free Lunch, Unless You’re the NLRB

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