Restaurant's ‘Ambience'Didn't Justify Union Button Ban

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By Lawrence E. Dubé

July 1 — A Los Angeles restaurant that tries to re-create the “ambience” of a traditional American grill cannot stop employees from wearing union buttons on their uniforms, the National Labor Relations Board held ( Grill Concepts Servs., 2016 BL 210951, 364 N.L.R.B. No. 36, 6/30/16 ).

Grill Concepts Services Inc., which operates the Daily Grill, argued employee uniforms are essential to the “style of service” it offers to customers.

NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran ruled June 30 the company's ban on union insignia is unlawful.

The board acknowledged that special circumstances may allow such restrictions, but it continued to set a high bar for employers seeking to enforce bans on union buttons.

The board members said Grill Concepts failed to show that small UNITE HERE buttons would interfere with the restaurant's public image, and they ordered the employer to cease interfering with the employees' display of the insignia.

Employer Banned Small Union Buttons

A UNITE HERE local that was organizing employees at the restaurant distributed union buttons that were approximately one inch in diameter, with the union's name displayed on a red or white background.

The board said the employer sent several employees home early when they were seen wearing the buttons, and threatened other employees with discipline if they wore the insignia again.

By its conduct, the board said, the employer imposed a de facto rule against wearing union buttons.

Rule Unlawful Absent Special Circumstances

“It is well settled” that an employer violates the National Labor Relations Act when it prohibits employees from wearing union insignia at the workplace, “absent special circumstances,” the NLRB said.

The board said it has found that special circumstances may exist when union insignia would interfere with a public image an employer has cultivated.

However, the board noted, an employer rule or policy limiting the right to wear insignia must be “narrowly tailored” to such special circumstances.

Restaurant Aimed for ‘Traditional' Atmosphere

Grill Concepts argued it has carefully modeled its restaurant on “the traditional/classic American grill eatery, the roots of which go back to the 1920s and 1930s.”

The company has focused on the “look and feel” of furniture and fixtures, and the selection of artwork, music, glassware, napkins and condiment dispensers used in the restaurant, and it argued the public expects a “traditional American grill” to offer “predictable, reliable service” by employees who are “seen and not heard.”

The company said the uniforms worn by servers and table bussers in public areas of the restaurant are “every bit as essential” to creating the desired atmosphere, and an administrative law judge held that the company's evidence showed the special circumstances needed to support a ban on union insignia.

However, the board members disagreed.

Board Finds Defense Fell Short

Grill Concepts relied on W San Diego, 348 N.L.R.B. 372, 180 LRRM 1321 (2006), where the board accepted the special circumstances defense of a hotel that promised guests an “alternative” experience and dressed its employees in uniforms with “a trendy, distinct, and chic look.”

But Pearce, Hirozawa and McFerran said the case was distinguishable from the Los Angeles restaurant case.

Describing the union pins worn at the Los Angeles restaurant as “small, inconspicuous, and non-inflammatory,” the board said Grill Concepts presented no evidence that wearing the button would harm the restaurant's image or interfere with an employee's ability to provide reliable customer service.

“If we were to find special circumstances here,” the NLRB found, “the exception would become so broad as to ultimately consume the rule.”

The board ordered the employer to rescind the button ban and to make employees whole for any loss of pay that resulted from the employer's enforcement of the ban.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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