Burgerville LLC

National Labor Relations Board - Administrative Judge Opinions

May 4, 2017

19-CA-182182 (N.L.R.B. May. 4, 2017)

JD(SF)–19–17
Vancouver, Washington
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
BURGERVILLE LLC
and Case 19–CA–182182
19–CA–182184
INDUSTRIAL WORKERS OF THE WORLD
Angelie Chong, Esq., for the General Counsel.
J. Kent Pearson, Jr., Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. This case was tried in Portland,
Oregon, on March 7, 2017. The Industrial Workers of the World (Charging Party) filed charge
19–CA–182182 on August 15, 2016,1 and an amended charge on October 31, and charge 19–
CA–182184 on August 15, and an amended charge on October 31 against Burgerville LLC
(Respondent). The General Counsel issued the complaint on November 25, and amended
complaint on February 15, 2017. Respondent filed a timely answer, and an amended answer.
The complaint alleges that Respondent violated Section 8(a)(1) of the National Labor
Relations Act (the Act) (1) when on or about July 13, Vancouver Plaza Assistant Manager Phil
Mild (Mild), outside of the Vancouver Plaza store, told employees that they could not be on
Respondent’s property; and (2) by maintaining a rule for at least the past 6 months prohibiting its
employees from loitering and/or hanging out on its premises when they are not on duty.
For the reasons that follow, I find that Respondent violated Section 8(a)(1) of the Act as
alleged.

1 All dates are in 2016 unless otherwise indicated.
JD(SF)–19–17
2
On the entire record,2 including my observation of the demeanor of the witnesses,3 and
after considering the briefs filed by the General Counsel and Respondent,4 I make the following
FINDINGS OF FACT
5
I. JURISDICTION
Respondent, a Delaware corporation, engages in the business of operating fast food
restaurants in the Vancouver, Washington and Portland, Oregon metropolitan areas. During the
12 months prior to the issuance of the complaint, Respondent derived gross revenues in excess of 10
$500,000, and purchased and received in the State of Washington goods valued in excess of
$50,000 directly from points outside of the State of Washington. Respondent admits, and I find,
that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
15
II. ALLEGED UNFAIR LABOR PRACTICES AND ANALYSIS

A. Background
Respondent operates approximately 44 fast food restaurants in Washington and Oregon, 20
including the Vancouver Plaza store. Respondent employs a total of 1550 crew members who
work varying shifts. Crew members report to a store’s general manager, assistant managers and
team managers (Tr. 14).
Respondent admits that the following individuals are supervisors within the meaning of 25
Section 2(11) and/or agents within the meaning of Section 2(13) of the Act: Jeff Harvey
(Harvey), chief executive officer (CEO); Roman Kalachik (Kalachik), general manager—
Vancouver Plaza; Mild, assistant manager—Vancouver Plaza; and George “Skip” Ankeny
(Ankeny), general manager —25th and Powell.
30

2 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations but rather on my review
and consideration of the entire record for this case.
3 I further note that my findings of fact encompass the credible testimony and evidence presented at
trial, as well as logical inferences drawn therefrom. A credibility determination may rely on a variety of
factors, including the context of the witness’ testimony, the witness’ demeanor, the weight of the
respective evidence, established or admitted facts, inherent probabilities, and reasonable inferences that
may be drawn from the record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586,
589 (1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-nothing
propositions—indeed nothing is more common in all kinds of judicial decisions than to believe some, but
not all, of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622. Aside from a few inconsistencies in
details, the General Counsel’s and Respondent’s witnesses testified consistently and there are no major
credibility disputes in this matter. But where there is testimony in contradiction to my factual findings, I
have discredited such testimony.
4 Other abbreviations used in this decision are as follows: “GC Exh.” for General Counsel’s exhibit;
“R. Exh.” for Respondent’s exhibit; “Jt. Exh.” for Joint Exhibit; “GC Br.” for the General Counsel’s
brief; and “R. Br.” for the Respondent’s brief.
JD(SF)–19–17
3
B. The July 13 Prohibition Against Handbilling Outside Respondent’s Vancouver
Plaza Store
In 2016, crew members Jordan Vaandering (Vaandering) and Elise Fishel (Fishel)
worked at Respondent’s Vancouver Plaza store. Crew member Claire Flanagan (Flanagan) 5
worked at the 25th and Powell store (Tr. 53).5 Vaandering, Fishel, and Flanagan along with
other unnamed employees began organizing in late 2015 to early 2016 (Tr. 38, 54–55). These
employees notified Respondent’s management on April 26 that they had formed a union known
as the Burgerville Workers Union (Tr. 38). As part of the union campaign, the employees
delivered letters to Respondent, picketed, and passed out leaflets or handbills at the stores (Tr. 10
38).
The first leafleting or handbilling began on Wednesday, July 13, outside the Vancouver
Plaza store (Tr. 14, 38). Vaandering and Fishel, neither of whom was working at Respondent
that day, along with a nonemployee volunteer for the campaign, Elizabeth Schallart (Schallart), 15
gathered outside Respondent’s Vancouver Plaza store at 6 p.m., to pass out quarter sheet leaflets
promoting the Burgerville Workers Union, advocating for a wage raise for the employees, and
commenting on Respondent’s refusal to bargain (GC Exh. 26; Tr. 15–16, 24–25, 38).7 The text
of the handbill states:
20
BURGERVILLE WORKERS UNION
BURGERVILLE WORKERS NEED A RAISE
STAND WITH THE BURGERVILLE WORKERS UNION25
To end poverty wages and win respect, workers at Burgerville have formed a
union and are asking to negotiate with management to improve their jobs and
their lives. Burgerville management opposes the union and has been
misrepresenting the union to workers in order to dissuade them from joining.30
Customers can help workers struggle for justice!
Tell Burgerville to negotiate with the union, give workers a raise and the respect
they deserve!
35
(GC Exh. 2).

5 Vaandering no longer works for Respondent (Tr. 12), while Fishel and Flanagan remain employed
(Tr. 37).
6 The handbill that Vaandering and Fishel distributed on July 13 was on a quarter sheet but GC Exh.
2 represents a full page version of the handbill (Tr. 25, 40).
7 Vaandering testified that he drove to the store that day, and gave Fishel a ride to the store as well
(Tr. 24). Fishel testified that she rode the bus that day (Tr. 47). I do not credit Vaandering’s testimony as
Fishel is a current employee of Respondent, and is testifying against her pecuniary interest which makes
her testimony particularly reliable. Gold Standard Enterprises, 234 NLRB 618, 619 (1978); Georgia Rug
Mill, 131 NLRB 1304, 1305 fn. 2 (1961). However, Vaandering’s inconsistent statement does not affect
the authenticity of the remainder of his testimony.
JD(SF)–19–17
4
Vaandering and Fishel testified that they stood separately at the two pillars or columns
holding up the overhang at the main entrance of the store; the main entrance of the store included
a set of double doors (Tr. 15, 26). Approximately 7 to 10 feet separated Vaandering and Fishel
(Tr. 15, 39). From that location, they handed out these leaflets to customers (Tr. 16). As
customers approached the main entrance, Vaandering and Fishel would ask customers if they had 5
heard of the Union and handed them the leaflet if they were interested (Tr. 16–17, 39). Fishel
testified that they would inform some customers how the Union could be contacted and how to
keep up with the Union on Facebook (Tr. 40). Customers would need to walk through the
double doors, which were located between Vaandering and Fishel, to go into the fast food
restaurant (Tr. 26–27, 88-89). Schallart handed out leaflets in Respondent’s parking lot 10 to 20 10
feet in front of the store and along the sidewalk in front of the store (Tr. 15–16, 27–28, 39).
Fifteen to 20 minutes after they began passing out leaflets, Mild came from inside the
restaurant to outside the double doors to talk with Vaandering and Fishel about leafleting (Tr. 18,
25, 41, 90).8 Mild, who Vaandering testified appeared frustrated and annoyed, stood in front of 15
the entrance double doors (Tr. 18, 29, 41). Mild asked them what they were doing (Tr. 18).
Vaandering responded that they were leafleting, informing customers about the Union (Tr. 18).
Mild told them that union activity needed be done off the property and they would need to move
to the public sidewalk which is off Respondent’s property next to the road and next to the drive-
through lane (Tr. 18, 29–31, 41, 48, 90).9 Vaandering told Mild that Fishel and he would remain 20
outside the store leafleting because they had a right to be on the property (Tr. 19, 30, 41, 90–91).
Mild repeated they needed to move off the property and that he was going to call Kalachik (Tr.
19, 42).10 Vaandering repeated that they would remain outside the front entrance (Tr. 19).
Thereafter, Mild went inside the Vancouver Plaza store (Tr. 19, 32, 42).11 Mild did not come
back outside (Tr. 19). During their conversation Mild did not raise his voice (Tr. 29, 47). Fishel 25
testified that Mild did not refer to any particular employer policy during the conversation (Tr.
48). This conversation lasted approximately 5 minutes (Tr. 18, 31, 41).
Vaandering, Fishel and Schallart remained outside the store, leafleting for 2 hours until
approximately 8 p.m. (Tr. 19, 25, 50).12 Mild did not come back outside to speak to Vaandering 30
or Fishel, or to follow up on his alleged conversation with Respondent’s Vancouver Plaza
general manager.13 Vaandering and Fishel, corroborated by Mild, denied being confrontational
during the exchange with Mild or during their handbilling, and denied blocking customers’
ingress or egress. (Tr. 19, 43, 98).
35

8 Vaandering testified that Schallart remained in the parking lot distributing leaflets (Tr. 18).
9 Fishel testified that Mild stated, “You have to leave” (Tr. 51).
10 Mild responded that he needed to check on Vaandering’s statement (Tr. 91).
11 In contrast to the testimony of Vaandering and Fishel, Mild testified that there were four
individuals leafleting on July 13 (Tr. 89). One of these individuals, who he did not identify, wore a
Respondent issued uniform (Tr. 89). I do not credit Mild’s testimony as the credible testimony of
Vaandering and Fishel consistently shows that only two employees participated in handbilling along with
one nonemployee.
12 Some customers took the leaflets and some did not (Tr. 89). One customer complained to Mild
about the leafleting (Tr. 89).
13 Fishel testified that 2 months later she engaged in more leafleting at the Vancouver Plaza store, and
no one from management attempted to stop her (Tr. 49).
JD(SF)–19–17
5
The 8(a)(1) Allegation Dealing with Handbilling
The complaint alleges that Respondent violated Section 8(a)(1) of the Act on July 13
when Mild told off-duty employees who were distributing handbills to customers, that they could
not be on Respondent’s property performing these actions. Respondent denied that it interfered 5
with employees in the exercise of Section 7 rights as Mild only told the employees to remove
themselves from Respondent’s property based on his knowledge of the law at the time (R. Br. at
10–11).14 Respondent further argues that even if a violation of the Act occurred, as the incident
was “isolated and de minimis,” and I should therefore decline to issue a Section 10(c) remedial
order (R. Br at 11–-13). 10
Section 7 of the Act protects employees’ rights to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection which includes the right to
handbill. See NLRB v. Servette, 377 U.S. 46, 49–50 (1964); Glendale Associates, Ltd., 335
NLRB 27 (2001), citing Oakland Mall, 316 NLRB 1160, 1163 fn. 14 (1995), enfd. 74 F.3d 292 15
(D.C. Cir. 1996). Included within those rights are the rights of off-duty employees to handbill on
their employer’s property in nonwork areas. In Town & Country Supermarkets, 340 NLRB
1410, 1414 (2004) (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945) and Hudgens
v. NLRB, 424 U.S. 507, 521 fn. 10 (1976)), the Board stated that unlike nonemployee union
representative, employees “are not strangers to the employer’s property, but are already 20
rightfully on the employer’s property pursuant to their employment relationship, thus implicating
the employer’s management interests rather than its property interests.” Therefore, the Board
found that off-duty employees could engage in protected activity in nonwork areas of their
employer’s property and the employer violated Section 8(a)(1) by prohibiting these employee’s
handbilling near the exit and entrance of its retail grocery store.25
Applying the above principles here, I find that Respondent violated the Act when Mild
told Vaandering and Fishel, who were off duty, that they could not handbill at the Vancouver
Plaza front entrance and needed to leave and move to the public sidewalks. It is undisputed that
this was the first time the employees passed out handbills promoting their Union and their 30
position on wages. The record evidence establishes that Vaandering and Fishel passed out
handbills peacefully without deterring customers from entering or exiting the Vancouver Plaza.
Mild came out from the restaurant’s interior to ask them what they were doing, and told them in
response they could not pass out handbills from Respondent’s property and needed to leave.
Vaandering disagreed with Mild’s instructions. Even after Vaandering refused Mild’s 35
instructions based upon his proper belief they had a right to be on Respondent’s property, Mild
reiterated that they could not handbill on Respondent’s property. Mild left the two men with the
impression that, should they continue their conduct, he would call general manager Kalachik.
Thus, they continued to handbill with the possibility that they could face consequences, such as
discipline, for not following Mild’s instructions. Considering the entire factual scenario, I do not 40
find Mild’s actions to be a brief, isolated incident as Respondent claims (R. Br. at 7–8).
Ultimately, they were not disciplined but simply because Respondent did not discipline the
employees do not negate Mild’s unlawful actions.

14 Respondent does not argue that it had a legitimate business reason for denying access to its
property for off-duty employees to handbill.
JD(SF)–19–17
6
Respondent argues that its actions were “marginal infringements” of the Act which had
“no meaningful impact on employees’ exercise of their Section 7 rights (R. Br. at 10-11). Thus,
Respondent argues that I should decline to issue a 10(c) remedial order. The Board has
recognized that under certain circumstances it does not effectuate the policies of the Act to find a
violation of the Act has occurred and issue a remedial order. American Federation of Musicians, 5
Local 76 (Jimmy Wakely Show), 202 NLRB 620 (1973); Bellinger Shipyards, Inc. 227 NLRB
620 (1976); Wichita Eagle & Beacon Publishing Co., 206 NLRB 55 (1973); Square D Co., 204
NLRB 154 (1973). In each of these instances, the employer substantially remedied or effectively
contradicted the unlawful conduct to ameliorate the violation. Again, in this matter, Mild never
returned to Vaandering and Fishel to correct his prior unlawful statement. In fact, thereafter, 10
Respondent reissued its no loitering/no hanging out rule, which I find unlawful as discussed
below and which certainly does not appear to remedy Respondent’s violation of the Act but
instead continues to seemingly support Mild’s statement that the off-duty employees needed to
leave Respondent’s property to handbill. Moreover, only a few months prior, the employees
who formed the Burgerville Workers Union notified Respondent that they had organized. The 15
July 13 handbilling event was the first time they attempted to publicize their labor organization
to Respondent’s customers. Under these circumstances, I find that Respondent violated Section
8(a)(1) of the Act, and the violation does not fall within the de minimis standard and a remedial
order is necessary.
20
C. Respondent’s Alleged Unlawful Rule
Respondent admits paragraph 5 of the complaint which alleges that within the 6-month
period of filing the charges in this matter and continuing at least to the date of the hearing,
Respondent has maintained a rule prohibiting its employees from loitering and/or hanging out on 25
its premises when they are not on duty.
The rules in question are:
(1) A portion of Respondent’s attendance policy, contained in its orientation manual dated 30
March 2012, which states, “At no time are you to loiter around the premises when you
are off duty” (Jt. Exh. 1).
(2) A portion of Respondent’s time and attendance policy, contained in the 2016 orientation
manual according to Mild, which states, “At no time are you to hang around the premises 35
when you are off duty” (Jt. Exh. 2).
With regard to the first rule noted above, it was issued at Respondent’s stores at different
times beginning in July 2016 (Tr. 95, 97). The day after leafleting the Vancouver Plaza store on
July 13, Vaandering received a text message with a photo of this attendance policy from 40
Flanagan (Tr. 21; Jt. Exh. 1). Flanagan asked Vaandering if the attendance policy was a labor
law violation as she had not seen the policy previously (Tr. 21, 82). Vaandering testified that his
behavior of remaining on Respondent’s property after completing his shift did not change after
this rule was brought to his attention by Flanagan (Tr. 35). Also, on approximately August 9,
union members staged a rally at Respondent’s Portland Convention Center store (Tr. 59–60). 45
Two days later, Respondent’s 25th and Powell manager called Flanagan into a meeting with a
couple of her coworkers (Tr. 61). During this meeting, employees viewed a video from
JD(SF)–19–17
7
Respondent’s CEO Harvey opposing the Union (Tr. 62). The manager also asked employees to
sign the attendance policy (Jt. Exh. 1), as well as its sick leave policy (Tr. 63)). The manager
told the employees that the policies he distributed were not new (Tr. 64–65).
Vaandering, Fishel, and Flanagan also testified consistently that before and after July 13 5
employees frequently stayed on Respondent’s premises after their shifts ended, eating meals,
waiting for transportation, or waiting for coworkers (Tr. 20, 34–35, 43–44, 67). Respondent’s
managers knew that employees remained at the store because they would serve the employees
food and would observe them waiting in the dining area for rides (Tr. 20, 44, 68). Prior to July
13, Respondent never told Vaandering he could not remain on its property after his shift ended 10
(Tr. 20).
Mild testified that the no loitering/no hanging out rules, listed above, have been in effect
since at least 2001 when he began employment with Respondent (Tr. 94). He also testified that
Respondent has not vigorously enforced its no loitering/no hanging out rules, because it was 15
aware that employees needed to catch public transportation (Tr. 95–96).
The 8(a)(1) Allegation Regarding No Loitering
Respondent admitted that within the 6-month period of filing the charges in this matter 20
and continuing at least to the date of the hearing, Respondent has maintained a rule prohibiting
its employees from loitering and/or hanging out on its premises when they are not on duty.
However, Respondent disagrees with the General Counsel’s allegation that the rule violates
Section 8(a)(1) of the Act. At the hearing, the General Counsel presented two policies or rules
which essentially prohibit the employees from loitering or hanging around Respondent’s 25
property after their shift is completed. This prohibition is encompassed in two policies: The 2016
orientation manual, time and attendance section, states, “At no time are you to hang around the
premises when you are off duty”; and the 2012 orientation manual, attendance section, states,
“At no time are you to loiter around the premises when you are off duty.”
30
Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 [of the
Act].” Section 7 provides that “employees shall have the right to self-organization, to form, join
or assist labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bargaining or 35
other mutual aid or protection, and shall also have the right to refrain from any or all such
activities.” Specifically, Section 7 protects employees’ right to discuss, debate, and
communicate with each other regarding workplace terms and conditions of employment.
Board law establishes that an employer violates Section 8(a)(1) of the Act if it maintains 40
workplace rules that would reasonably tend to chill employees in the exercise of their Section 7
rights. Lutheran Heritage Village-Livonia, 343 NLRB 646, 646 (2004), citing Lafayette Park
Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999); Valley Health System
LLC d/b/a Spring Valley Hospital Medical Center, 363 NLRB No. 178 (2016); T-Mobile USA,
Inc., 363 NLRB No. 171 (2016). Mere maintenance of a rule which inhibits Section 7 activity is 45
an unfair labor practice. Lutheran Heritage Village, supra at 646. The analytical framework for
determining whether maintenance of rules violate the Act is set forth in Lutheran Heritage
JD(SF)–19–17
8
Village-Livonia. Under that test, a work rule is unlawful if “the rule explicitly restricts activities
protected by Section 7.” 343 NLRB at 646 (emphasis in original). If the work rule does not
explicitly restrict protected activities, it nonetheless will violate Section 8(a)(1) if “(1) employees
would reasonably construe the language to prohibit Section 7 activity; (2) the rule was
promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise 5
of Section 7 rights.” Id. at 647.
An employer’s rule denying access to off-duty employees to all areas of its premises
violates the Act unless there are legitimate business concerns to justify the rule or policy. The
Board has found similar no loitering rules unlawful in several decisions. Tecumseh Packaging 10
Solutions, Inc., 352 NLRB 694 (2008); Palms Hotel & Casino, 344 NLRB 1363, 1363, 1391
(2005); Lutheran Heritage Village, 343 NLRB 646, 649 fn. 16, 655 (2004); Ark Las Vegas
Restaurant Corp., 343 NLRB 1281 (2004); and Tri-County Medical Center, 222 NLRB 1089
(1976). For example, in Lutheran Heritage Village, the Board found a rule prohibiting loitering
on company property without permission to be illegal as the rule chilled employees in the 15
exercise of their Section 7 rights such as speaking with coworkers after a shift about organizing
or any other workplace concerns. Any ambiguity in a workplace rule “must be construed against
the [employer] as the promulgator of the rules.” Ark Las Vegas Restaurant, 343 NLRB 1281,
1282 (2004).
20
Here, I find that Respondent’s rule prohibiting employees from hanging around or
loitering at its premises when off duty is overbroad and ambiguous. These rules were maintained
in Respondent’s orientation manuals which appear to have been in effect within 6 months of the
unfair labor practice charges.15 Rules are examined to determine whether an employee could
reasonably construe the language to prohibit Section 7 activity. Lily Transportation Corp., 362 25
NLRB No. 54, slip op. at 3 (2015). The rules do not explicitly prohibit Section 7 activity, but the
terms “loiter” and “hang around” are undefined and can reasonably be interpreted to prohibit
employees from engaging in protected activity, such as handbilling, in non-work areas of
Respondent’s property. Read within the context of the entire policies, there is no explanation to
employees as to why they cannot loiter or hang around the premises when they are off duty. See 30
Palms Hotel & Casino, supra at 1363 fn. 3. Furthermore, the rule contains no qualifiers or
exceptions for when employees engage in Section 7 activity. By prohibiting all loitering or
hanging around Respondent’s premises, employees may reasonably construe the rule to prohibit
lawful protected activity including handbilling.
35
Respondent argues that the rule prohibiting hanging around or loitering off duty at
Respondent’s premises was “rarely, if ever” enforced (R. Br. at 7). However, facial challenges
to rules do not depend on evidence of enforcement. Schwan’s Home Service, 364 NLRB No. 20,
slip op. at 1 fn. 4 (2016). It is also of no consequence that employees continue to “violate” the
rule by remaining on Respondent’s premises when off duty and that further handbilling occurred 40
where employees were not disciplined. Employees essentially continue this behavior at their
peril as Respondent could at any time enforce its rule. Respondent failed to establish that it

15 The General Counsel does not allege that the 2016 orientation manual, time and attendance policy,
was promulgated in response to the July 13 handbilling event. However, Respondent passed out this
policy 1 day after the July 13 handbilling event which raises a reasonable suspicion that Respondent
sought to apply this rule to restrict the exercise of Sec. 7 rights.
JD(SF)–19–17
9
communicated to employees that they could exercise their Section 7 rights despite the rule
against loitering or hanging around Respondent’s premises when off duty. Furthermore, there is
no evidence that Respondent has maintained its no loitering rule for any legitimate business
reason.16
5
Consequently, I find that Respondent’s prohibition against loitering or hanging around
the premises when employees are off duty is overbroad and in violation of Section 8(a)(1) of the
Act.
CONCLUSIONS OF LAW10
1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by telling off-duty employees they cannot
handbill in the exterior of the employer’s property. 15
3. Respondent violated Section 8(a)(1) of the Act by maintaining an overly broad rule that
prohibits off-duty employees from loitering or hanging around the employer’s property.
4. The unfair labor practices committed by Respondent affect commerce within the meaning 20
of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall order 25
it to cease and desist there from and to take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and the entire record, I issue the
following recommended1730
ORDER
Respondent, Burgerville LLC, Washington and Oregon, its officers, agents, successors,
and assigns, shall35

16 In Tri-County Medical Center, 222 NLRB 1089, 1089 (1976), the Board held that an employer’s
rule barring off-duty access to its facility is valid only if: (1) limits access solely with respect to the
interior to the plant and other working areas; (2) is clearly disseminated to all employees; and (3) applies
to off-duty employees seeking access to the plant for any purpose and not just to those employees
engaging in union activity. Again, Respondent failed to argue such a defense but even if it had, this rule
would be overly broad as it does not limit access to Respondent’s interior work areas and includes
nonwork areas such as the front of the store. Moreover, when an employer has a business justification for
denying access to nonworking areas, such a restriction cannot be based on Sec. 7 activity. Santa Fe
Hotel, Inc., 331 NLRB 723, 723 (2000); Automotive Plastic Technologies, 312 NLRB 462, 463 (1993).
17 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 purposes.
JD(SF)–19–17
10
1. Cease and desist from
(a) Telling off-duty employees that they cannot engage in union or other protected
activities such as handbilling in the exterior area of Respondent’s property;
5
(b) Maintaining an overly broad rule which prohibits off-duty employees from
loitering or hanging around the employer’s property;
(c) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed to them by Section 7 of the Act.10
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind and/or revise the employer’s no loitering/no hanging around policies
which are found in the 2012 and 2016 orientation manual in the “Attendance” and “Employment 15
Policies and Procedures.”
(b) Within 14 days after service by the Region, post at all Respondent’s fast food
restaurants, copies of the attached notice marked “Appendix.”18 Copies of the notice, on forms
provided by the Regional Director for Region 19, after being signed by Respondent’s authorized 20
representative, shall be posted by Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if
Respondent customarily communicates with its employees by such means. Reasonable steps 25
shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, Respondent has
gone out of business or closed the facility involved in these proceedings, Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by Respondent at any time since February 15, 2016.30
(c) 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 Respondent has taken to comply.
35
Dated, Washington, D.C., May 4, 2017.
____________________
Amita Baman Tracy40
Administrative Law Judge

18 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT prohibit off-duty employees from engaging in union or other protected
activities such as handbilling in all exterior areas of Respondent’s property.
WE WILL NOT maintain an overly broad rule which prohibits off-duty employees from
loitering or hanging around the employer’s property
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights listed above.
WE WILL rescind and/or revise the employer’s no loitering/no hanging around policies which
are found in the 2012 and 2016 orientation manual in the “Attendance” and “Employment
Policies and Procedures.”
BURGERVILLE LLC
(EMPLOYER)
DATED BY
(REPRESENTATIVE) (TITLE)
THE NATIONAL LABOR RELATIONS BOARD IS AN INDEPENDENT FEDERAL AGENCY CREATED IN 1935 TO ENFORCE THE NATIONAL LABOR
RELATIONS ACT. IT CONDUCTS SECRET-BALLOT ELECTIONS TO DETERMINE WHETHER EMPLOYEES WANT UNION REPRESENTATION AND IT
INVESTIGATES AND REMEDIES UNFAIR LABOR PRACTICES BY EMPLOYERS AND UNIONS. TO FIND OUT MORE ABOUT YOUR RIGHTS UNDER THE
ACT AND HOW TO FILE A CHARGE OR ELECTION PETITION, YOU MAY SPEAK CONFIDENTIALLY TO ANY AGENT WITH THE BOARD’S REGIONAL
OFFICE SET FORTH BELOW. YOU MAY ALSO OBTAIN INFORMATION FROM THE BOARD’S WEBSITE: WWW.NLRB.GOV.
915 2ND AVENUE, ROOM 2948, SEATTLE, WA 98174-1078
(206) 220-6300, HOURS: 8:15 A.M. TO 4:45 P.M.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (206) 220-6284.