NLRB Overturned Decision that Pro-Union Buttons Violated Work Rules

The Daily Grill, a “traditional American grill” restaurant in Los Angeles, prohibited its employees from wearing union buttons while interacting with customers. Although employees had been allowed to wear buttons such as “trainer” and “anniversary” pins, the restaurant threatened to discipline or sent home early several employees who, during a union organizing drive, wore one inch in diameter UNITE HERE union buttons at work.

Employees are allowed to wear union pins or buttons at work absent “special circumstances.” Special circumstances where the display of union buttons may jeopardize employee safety, damage machinery or products, exacerbate employee dissention, or unreasonably interfere with a public image that the employer has established, as part of its business plan, through appearance rules for its employees.

The ALJ held that the Company’s ban was lawful because it fostered the Daily Grill’s public image as a traditional American grill restaurant and that a consistent, customer-driven experience and atmosphere was at the core of the employer’s business model, and the uniform and professional appearance of its servers was part of that model.

On appeal the uber pro-union NLRB disagreed and explained that when it is faced with an employer’s claim that its public image justifies a ban on union buttons, it considers the button’s physical appearance and message to determine if it interferes with the employer’s desired public image. The NLRB found that the employer “presented no evidence on how the Union’s small, inconspicuous, and non-inflammatory buttons would unreasonably interfere with a server’s ability to provide reliable service or interfere with the [restaurant’s] public image.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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