Burger King

National Labor Relations Board - Board Decisions

Aug 11, 2000

331 N.L.R.B. 1011 (N.L.R.B. 2000)

BURGER KING 1011
Midon Restaurant Corporation, d/b/a Burger King
and Industrial Workers of the World, Philadel-
phia General Membership Branch. Case 3–CA–
22075
August 11, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On June 16, 2000, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Midon
Restaurant Corporation, d/b/a Burger King, Albany, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
Add the following sentence to paragraph 2(a).
“(a) In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed down the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since May 2, 1996.”

Alfred M. Norek, Esq., for the General Counsel.
Dennis F. Irwin, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me in Albany, New York, on March 6, 2000. The
complaint, which issued on October 28, 1999,1 and was based
on an unfair labor practice charge and an amended charge that
were filed on August 6 and October 27 by Industrial Workers
of the World, Philadelphia General Membership Branch (the
Union) alleges that Midon Restaurant Corporation, d/b/a Bur-
ger King (the Respondent) violated Section 8(a)(1) and (3) of
the Act when it threatened to discharge employees who spoke
about the Union, informed its employees that it would not per-
mit a union at Burger King and that it maintained and enforced
a rule prohibiting employees from discussing unions, and con-
structively discharged Jacob Fried because of his union and
protected concerted activities.

1 The Respondent argued in its exceptions that the judge should have
dismissed the complaint based on the Board’s decision in Super-H
Discount, 281 NLRB 728 (1986), which he cited in finding that the
Respondent violated Sec. 8(a)(1) of the Act. In Super-H Discount, as
here, the employer promulgated an overly broad no-solicitation rule
restricting an employee’s union activities. The Employer argued, and
the Board found it established, that the employer’s prohibition was a
one-time incident that went ignored by the employee to whom it was
directed since he continued to engage in union activities while “on the
clock” without further restraint. We find that the present situation is
factually distinguishable from Super-H Discount, and we therefore find
it unnecessary to pass on the continuing validity of Super-H Discount
in the context of this case.
2 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144 (1996).
1 Unless indicated otherwise, all dates referred to here relate to the
year 1999.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits that during the prior 12-month period, it
derived gross revenue in excess of $500,000 and purchased and
received at its facilities within the State of New York goods and
materials valued in excess of $50,000 directly from points out-
side the State of New York. I therefor find that the Respondent
has been engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE FACTS
As stated above, it is alleged here that the Respondent,
through Charles Betz, its district manager, engaged in certain
8(a)(1) conduct directed at Fried, and constructively discharged
him on July 29. Because of the wide variances in the testimony
of the three witnesses testifying to the events of July 29, each
witnesses’ testimony will be set forth separately.
A. Jacob Fried
Fried began his employ at the Burger King facility on Cen-
tral Avenue, Albany, New York, (the facility), in late June or
early July. He worked as a crew member making sandwiches,
cleaning the floor, and operating the cash register. The store
manager was Susan Hart; the shift manager was “Tye.” Fried
testified that on July 29 he was discussing the benefits of union-
izing with a fellow employee and Hart overheard them talking
and said that she thought that a union would not do them any
good; she had been in a union, and it did nothing for her. He
and Hart then engaged in a “debate” about the merits of a un-
ion. At about that time, Betz walked into the store and Tye told
him that Fried had been talking about unions. Betz said that if
he mentioned the word union again he could be looking for
another job; if he wanted a union he should work in a super-
market which has unions.2 Fried said that he felt that the em-
ployees needed a union because they were not being paid
enough. Betz said that they were being paid enough and they
didn’t need a union. That was the extent of that conversation. A
few minutes later, while he was working at the drive thru, Tye
told him that Betz wanted to speak to him in the employees
room, an alcove containing a table and chairs. At this meeting
with just the two of them present, Betz said that he was the
manager and could decide whether there could be a union at the
facility, and that he would not allow a union. Fried said that he
was wrong, it was the workers who decided if there should be a
union. Betz became loud and angry and repeated that it was his
decision, and he would not allow a union at the store. When
Fried repeated that he did not agree, Betz took out a rule book
and said that when Fried began working at the facility he signed
2 In an affidavit given to the Board on August 5, Fried does not men-
tion this alleged supermarket statement.
331 NLRB No. 128
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1012
the book saying that he accepted all the rules in the book, and
one of the rules is that the employees would not talk about un-
ions, and this was company policy. Fried called Betz exploitive,
told him to go to hell, gave him “the finger,” and walked out,
never to return, except to pick up his final paycheck. Fried testi-
fied that he walked out because Betz threatened to fire him if he
discussed unions with other employees. On that day or thereaf-
ter, nobody at the facility told him that he was fired.
B. Charles Betz
Betz testified that the Respondent has a no-solicitation rule
that prohibits solicitations (unions or otherwise) while on the
clock. However, employees are free to talk while at work as
long as it does not interfere with their servicing customers. Betz
testified that he arrived at the facility at about 4 p.m. on July 29
for a routine visit. He said hello to the employees and discussed
with them the importance of service time, quick and efficient
service: “the more customers you get through an hour, the more
sales you can do and the more successful we’ll be.” Fried then
said in a loud tone of voice: “You don’t pay me enough to do
that.” Betz then terminated this discussion and went to the of-
fice in the back of the facility. He was about to talk to Hart
when he again heard Fried say something to the effect of, “You
don’t pay me enough to do this job.” Shortly thereafter, Betz
asked Tye to tell Fried that he wanted to speak to him. When
Fried arrived at the employees’ room, Betz asked him what his
problem was, why did he have that attitude. At some point in
the conversation, Fried mentioned unions (something to the
effect of “you can’t tell me how to organize unions”) and Betz
obtained a copy of the employee handbook and told Fried that
when he was hired he signed the policy booklet acknowledging,
“no solicitation in the restaurant, especially when you’re on the
clock.” Betz tried to show the manual to Fried, who said: “You
can’t control my mind, you can’t tell me not to organize a un-
ion.” Betz got up to leave in order to speak to Hart about what
was causing Fried to make these statements, and Fried told him:
“You can stick this job up your ass” and gave him “the finger”
with both hands and walked out the door. Betz testified that he
does not remember having an earlier conversation with Fried
about unions and never told Fried that he would never allow a
union at the facility, or that he had the power to prevent a union
from coming in. Fried did not return to work at the facility,
although he was not fired. In an affidavit that the Respondent
submitted to the Board during the investigation of this matter,
Betz states that after he arrived at the facility, Hart told him that
Fried was complaining “about certain aspects of the job,” and
was saying things to her like, you don’t pay me enough. Betz
testified, however, that it may have been the opposite, that
Fried first made the statement in the meeting with Betz and the
other employees, and then Betz asked Hart what his problem
was. The affidavit also states that in response to Hart’s report to
him about Fried, he took Fried to the employees’ lounge to
“speak to him directly about these issues.”
C. Susan Hart
Hart, the manager of the facility, testified that Fried had been
soliciting some of the other employees about a union on July 28
and 29. Sometime in mid-afternoon on July 29, she, Fried, Tye,
and Sonya Hackett were talking at the front counter at the facil-
ity; Fried began talking about unions, and Hart said that she
was in a union in the 1980s and didn’t like it. “I told him we
don’t have unions here. It’s a non-union organization.” At
about that time Betz walked into the store for a regular visit;
Hart had not asked him to come and had not told him about
Fried’s solicitations for a union. Betz addressed the employees
and told them of the importance of speedy service. Fried said
that they don’t get paid enough for speedy service and Betz
replied that it was their obligation to provide speedy service.
That was the extent of the discussion, and Betz walked away,
but remained in the vicinity wiping a countertop. At that time,
Fried told the other employees that they would make more
money if they had a union. At that point, Hart had to leave the
facility to go to the hardware store and, prior to leaving, she
saw Betz and Fried walking into the employees’ room. She was
gone for 8 to 10 minutes and she returned at the end of this
meeting and heard Fried say something to the effect that Betz
could not control his mind. Fried gave Betz the finger, with one
hand only, told Hart that he quit, and walked out. The only time
Fried returned to the facility was to pick up his paycheck a few
days later.
III. ANALYSIS
Credibility is a big issue here. There is a major variation be-
tween Fried’s testimony and that of Betz and, to a lesser degree,
Hart. I found Fried, Betz, and Hart each to be fairly credible
witnesses. Although none clearly stood out as the most credi-
ble, of the three, I found Hart to be more credible than Betz and
Fried; although she is a supervisor for the Respondent, she
appeared to be attempting to testify honestly about events that
occurred 8 months earlier. She was not evasive and her testi-
mony was more believable than the testimony of the other wit-
nesses. I therefore credit the testimony of Hart over Fried’s
testimony and find that in the initial conversation on July 29,
Betz did not threaten Fried with discharge if he spoke about
unions and did not say that if Fried wanted to be in a union he
should work at a supermarket. As Hart was not present for the
main part of the subsequent conversation between Betz and
Fried, it is necessary to determine credibility regarding the
latter conversation of July 29. Having credited Hart’s version of
the earlier conversation over Fried, I would, again, discredit
Fried’s testimony regarding this conversation, and instead
credit the testimony of Betz. I therefore find that in the subse-
quent conversation in the employees’ room, Betz did not in-
form Fried that the Respondent would not allow a union at the
facility. I would therefore recommend that these two allega-
tions, paragraphs V(a) and (b), be dismissed. Betz does admit,
however, that he told Fried that the employee handbook prohib-
its “solicitation in the restaurant, especially when you’re on the
clock.”
In Our Way, Inc., 268 NLRB 394 (1983), the Board returned
to the principal that in cases involving the legality of rules in-
volving solicitations at work, the term “working time” is pre-
sumptively valid because it indicates with sufficient clarity that
employees may solicit on their own time, while the term “work-
ing hours” is presumptively invalid because it connotes periods
from the beginning to the end of work shifts, which includes
the employees’ own time. Ichikoh Mfg., 312 NLRB 1022
(1993), found the term “business hours” also to be presump-
tively invalid. In Litton Systems, 300 NLRB 324 (1990), the
Board found the term “company time” also presumptively inva-
lid because it “could reasonably be construed as encompassing
both working and nonworking time spent on the company
premises.” Southeastern Brush Co., 306 NLRB 884 (1992).
Ichikoh, supra, also states: “If the rule is presumptively unlaw-
ful on its face, the employer has the burden of showing that it
BURGER KING 1013
communicated or applied the rule in such a way as to convey an
intent clearly to permit solicitation during breaktimes or other
non-work periods.”
In Super-H Discount, 281 NLRB 728 (1986), the statement
at hand was: “Do not talk union on the clock.” The Board
would have, apparently, found this to be violative of the Act;
however, because of the totality of the circumstances—it was a
single isolated situation and there was no evidence that the
warning was ever communicated to any other employee—the
Board dismissed the allegation. In Red Arrow Freight Lines,
Inc., 289 NLRB 227, 246 (1988), which involved a limitation
of discussion “on company time,” the administrative law judge
stated:

The reference to “company” time rather than “working” time
is a material distinction. The former term implies all the time
an employee is “on the clock” (being paid) which normally
includes breaktimes. Because breaktimes are employees’ free
time in which they may discuss union activities or solicit their
fellow employees to join or support a labor organization,
Pennfield’s instructions violated Section 8(a)(1) of the Act.

I find that Betz’ statement violates the Act for two reasons.
First, the restriction on solicitation while employees are “on the
clock” is presumptively invalid. In addition, Betz’ statement
was really in two parts: the initial part was an absolute prohibi-
tion against solicitation, modified only by an “especially.” This
could easily be construed as an absolute prohibition. I therefore
find that Betz’ statement to Fried violates Section 8(a)(1) of the
Act.
CONCLUSIONS OF LAW
1. The Respondent has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by re-
stricting solicitation at the facility, especially when employees
are on the clock.
3. The Respondent did not violate the Act as otherwise al-
leged in the complaint.
REMEDY
Having found that the Respondent has unlawfully restricted
solicitations at its facility, I shall recommend that it cease and
desist from doing so and take certain affirmative action de-
signed to effectuate the policies of the Act.
On these findings of fact, conclusions of law and the entire
record, I issue the following recommended3

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ORDER
The Respondent, Midon Restaurant Corporation, d/b/a Bur-
ger King, Albany, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from limiting its employees’ solicitations
at its facility at all times or at times when they are not “on the
clock” or, in any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Albany, New York, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced or covered by any other material.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region, attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the remaining portions of the
complaint, paragraphs V(a) and (b) and VI, be dismissed.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

WE WILL NOT prohibit you from soliciting at the restaurant at
all times or while you are “on the clock.”
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your Section 7 rights.

MIDON RESTAURANT CORPORATION, D/B/A BURGER
KING
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”