The Laborer’s Union, through a group called the Workers Organizing Committee, is actively attempting to organize fast-food and casual restaurant workers in the Kansas City metropolitan area as well as in other midwestern cities. The Union is acting as though it is a public interest group that is seeking to increase the minimum wage to $15. But its true goal is to become the restaurant workers’ exclusive bargaining representative. First, the Union ingratiates itself with restaurant workers by advocating for a substantial increase in the minimum wage. Second, it asks the workers to sign letters that they support and will participate in a strike with other employees in support of a minimum wage increase. Then the union seeks employee signatures on union authorization cards. Finally, once it has collected a sufficient number of signed authorization cards, it files an election petition with the National Labor Relations Board (“NLRB”).

Many restaurant owners and supervisors are unaware that non-union employees have rights under the National Labor Relations Act (“NLRA”). Unions take advantage of this fact and try to provoke employers into acting unlawfully. For example, unions will organize highly disruptive yet statutorily protected events – such as strikes, marches or demonstrations – near restaurant locations with the hope that supervisors will berate or discipline employees that decide to participate. In most instances the supervisor will reasonably (but incorrectly) believe that they can discipline or otherwise retaliate against employees for walking off the job. The union responds by filing an unfair labor practice charge against the restaurant and its owners.

This tactic has already been used against prominent Kansas City restaurants. For example, an administrative law judge for the NLRB recently held that Gates Bar-B-Q committed an unfair labor practice when it stopped offering a free meal benefit to its employees shortly after they engaged in a one day strike at one of the Gates locations. See Gates & Sons Barbeque, 14-CA-110229 (June 19, 2014). Before the Gates employees went on strike, the judge found that their supervisor told them if they participated in the strike they “might as well find another place of employment” because they would be charged with a “no-call/no-show” and terminated. The employees who went on strike were ultimately allowed to return to work, but at that point the damage had already been done. When viewed in light of the supervisor’s hostile comments, an administrative law judge held that the elimination of the free meal benefit was motivated by anti-union animus and was done in retaliation for the employees engaging in a lawful strike.

It is highly likely that this union organizing activity will continue going forward. Restaurant owners should ensure that they and their managers have been trained on union-related issues and that workplace policies have been reviewed for compliance with the NLRA. Additionally, employers should seek advice of experienced labor counsel immediately if the Workers Organizing Committee or any other labor organization begins organizing activities with employees. These are the best practices to avoid the well-intended but errant comments and/or actions of supervisors giving rise to legal liability and increasing the risks that employees seek union representation.