03/14/2025: Waffle House Illegally Interrogated Employees
Fifth Circuit enforces NLRB decision against ExxonMobil.
Waffle House, Inc., JD-22-25, 10-CA-321421 (ALJ Decision)
This case involves a dispute between Waffle House, Inc. and the Service Employees International Union regarding alleged unfair labor practices at a Waffle House restaurant in Columbia, South Carolina. The case was tried before Administrative Law Judge Arthur J. Amchan in February 2025, following a charge filed by the union in July 2023.
The events began on July 1, 2023, when two off-duty employees, accompanied by 15-20 non-employees including union representatives, entered Waffle House store #1470. During this demonstration, employee Summer Schoolmeester-Cochran read a petition signed by four employees to store manager Tyrissa McMillan. Later that day, McMillan and District Manager Gregory Wilson directed Schoolmeester-Cochran and employee Jessica Gantt to meet with them, where they questioned the employees about their union activities and the demonstration.
On July 8, several off-duty employees entered the store again with a union representative to deliver a strike notice. Multiple employees, including Schoolmeester-Cochran and Marshawna Parker (who was on duty), began a three-day strike. The strikers raised concerns about understaffing, scheduling, security, equipment, wages, and meal deductions.
On July 15, Parker left work before her shift ended without notifying management. The following day, McMillan issued Parker a written warning. McMillan also called Parker regarding comments Parker had made to the press during the strike and accused Parker of slander.
The General Counsel alleged several violations of the National Labor Relations Act, including:
Interrogating employees about protected activities
Threatening employees with unspecified reprisals
Telling employees to follow the chain of command instead of engaging in concerted activities
Threatening employees with a lawsuit and police action
Interrogating an employee about press statements and accusations of slander
Disciplining an employee via written warning in violation of Section 8(a)(3)
The ALJ found that Waffle House violated Section 8(a)(1) of the Act only with respect to interrogating employees about their union sympathies and activities. The ALJ determined that the interrogation was coercive because:
Both managers were high enough in the company hierarchy to affect employees' terms of employment
The interrogation was not casual or brief
Employees were summoned to meet with managers in the back of the restaurant
The information sought suggested employees did something wrong by seeking union representation
The extent of questioning contributed to its coercive nature
The ALJ dismissed the other allegations, finding that:
Managers' statements about calling police did not violate the Act since non-employees did not have a right to protest inside the store
McMillan's statement about violating company policy was permissible
McMillan's comments about slander were personal and not made as an agent of Waffle House
Parker's disciplinary warning was not discriminatory, as she admitted violating company policy by leaving work early
The remedy ordered Waffle House to cease and desist from interrogating employees about their union sympathies and activities, and to post appropriate notices at all Columbia, South Carolina facilities.
Significant Cases Cited
Rossmore House, 269 NLRB 1176 (1984): Established the "totality of circumstances" test for determining whether interrogation of employees violates the NLRA.
Community Cash Stores, 238 NLRB 265 (1978): Addressed when a manager acts as an agent of an employer, requiring employees could reasonably believe the manager was speaking for management.
ExxonMobil v. NLRB, 23-60495, (5th Circuit)
ExxonMobil Technology and Engineering Company petitioned for review of a National Labor Relations Board (NLRB) order finding the company liable for unfair labor practices. The NLRB cross-petitioned for enforcement of its order. The central issues revolved around Exxon's conduct during collective bargaining agreement (CBA) negotiations with the Independent Laboratory Employees Union (the "Union") regarding personal time off (PTO) policies and paid parental leave (PPTO).
The NLRB initially dismissed the Union's complaint in 2020, but it vacated this decision in 2022 due to a conflict of interest involving then-Board Member Emanuel. A new Board panel then affirmed an administrative law judge's (ALJ) findings that Exxon had violated the National Labor Relations Act by refusing to bargain in good faith on the supervisor PTO review issue, refusing to bargain on the issue in retaliation for the Union’s past grievances, and suggesting employees would receive PPTO in exchange for decertifying the Union.
Exxon challenged the NLRB's authority to vacate the initial decision and the substantive findings. The Fifth Circuit found the NLRB's vacatur did not constitute an abuse of discretion. It determined that the NLRB possessed the statutory authority to reconsider its decisions and that the delay in vacating the initial decision was reasonable given the circumstances. Furthermore, the court rejected Exxon's argument that Member Emanuel's participation was harmless, citing the need to maintain public confidence in the integrity of the NLRB's process.
Regarding the substantive findings, the court held that substantial evidence supported the NLRB's conclusions that Exxon refused to bargain in good faith on the supervisor PTO review issue and retaliated against the Union for past grievances. The court also upheld the finding that Exxon unlawfully suggested employees would be better off without Union representation regarding PPTO. The Fifth Circuit deferred to the NLRB's interpretation of the evidence and reasonable inferences drawn therefrom.
The Fifth Circuit denied Exxon's petition for review and granted the NLRB's cross-petition for enforcement.
Significant Cases Cited
Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951): Established that a court reviewing an NLRB decision cannot displace the Board's choice between two fairly conflicting views of the evidence, even if the court could have made a different choice de novo.
Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979): Defined res judicata as being implicated when a second, later suit involves the same parties and causes of action as a first, final suit.
Williams v. Pennsylvania, 579 U.S. 1 (2016): Concluded that a judge's participation in a case where their impartiality might reasonably be questioned constitutes structural error, even if the judge did not cast a deciding vote.
In re NLRB, 304 U.S. 486 (1938): Addressed that Section 10(d) affords the Board an opportunity to correct errors in a court to consider new evidence which would render the order inadequate or unjust.