Case: 16-60667 Document: 00514027261 Page: 1 Date Filed: 06/09/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 9, 2017
No. 16-60667
Lyle W. Cayce
Clerk
CHIPOTLE SERVICES, L.L.C., doing business as Chipotle Mexican Grill,
Petitioner Cross-Respondent
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent Cross-Petitioner
On Petitions for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
NLRB No. 04-CA-147314
NLRB No. 04-CA-149551
Before REAVLEY, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
Chipotle Services petitions for review of an order of the National Labor
Relations Board concluding that Chipotle violated § 8(a)(1) of the National
Labor Relations Act by prohibiting an employee from engaging in protected
concerted activity and then discharging him, and also that five workplace rules
restrict protected activities of its employees. We deny review.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-60667 Document: 00514027261 Page: 2 Date Filed: 06/09/2017
No. 16-60667
The employee, James Kennedy, was concerned about the failure of
Chipotle to adhere to the break policy of the restaurant where he worked. He
discussed the matter with other employees and prepared a petition which he
began to circulate to protest management’s failure. The restaurant manager
called Kennedy to the office in the restaurant, and a critical discussion on this
matter took place. Consequently, Kennedy was terminated and it would be
possible to conclude that the two of them misunderstood what the other was
saying, but this court’s review is limited to determine whether there was
substantial evidence to support factual issues, and we may not reweigh the
evidence. El Paso Elec. Co. v. NLRB, 681 F.3d 651, 656 (5th Cir. 2012). The
decision of the Board was that the manager ordered Kennedy to stop
circulating his petition and because he refused to do so, discharged him for
insubordination. That evidence supports the Board’s finding that § 8(a)(1)
violated the Act by preventing a proper use of the petition and then discharging
the employee for insisting he would continue.
The Board also found that Chipotle violated the Act by maintaining five
rules of its confidential information policy and its social media code of conduct.
Our review here is simply to decide if employees could reasonably construe
these rules to chill their protected speech since employees have the right to
complain about their employer and conditions of employment. See Flex Frac
Logistics, LLC v. NLRB, 746 F.3d 205, 209 (5th Cir. 2014). The Board has
found that rules prohibiting “improper” use of the employer’s name, or
soliciting within hearing range of customers when not working, would chill the
expression of those opinions. We cannot fault the Board’s decision.
Review DENIED.
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