Chanticleer Holdings, Inc. d/b/a Little Big Burger

National Labor Relations Board - Administrative Judge Opinions

Feb 19, 2020

19-CA-239759 (N.L.R.B. Feb. 19, 2020)

JD(SF)–06–20
Portland, OR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CHANTICLEER HOLDINGS, INC. d/b/a
LITTLE BIG BURGER
and Case 19–CA–239759
LITTLE BIG UNION, INDUSTRIAL WORKERS
OF THE WORLD
Ryan Connolly, Esq.,
for the General Counsel.
Dennis Westlind & Benjamin P. O’Glasser, Esqs. (Bullard Law),
for the Respondent Company.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. In late January 2019, Zaria
Lazuli was hired by Little Big Burger as a fast-food worker at its Division Street location in
Portland, Oregon. Her employment with the Company was short-lived, however. She was
terminated just 5 weeks later, on March 7, less than halfway through her 90-day introductory or
probationary period.
The General Counsel alleges that Lazuli was terminated because she and coworkers had
twice recently complained to a manager about their terms and conditions of employment—first
on March 1, when they accused the manager of monitoring Lazuli more closely because she was
transgender, and again the following day, March 2, when they complained to him about not
being given a mandatory 10-minute paid break during the shift. The General Counsel alleges
that Lazuli’s termination therefore violated Section 8(a)(1) of the National Labor Relations Act.1
The Company denies the allegation. It asserts that Lazuli’s prior complaints about
transgender discrimination and a missed 10-minute break had nothing to do with her termination.
Rather, Lazuli was terminated during her probationary period primarily because, despite frequent
reminders and coaching by the manager, she repeatedly failed to comply with the Company’s
handwashing policy and failed to improve her pace and performance.

1 See the July 29, 2019 complaint, GC Exh. 1(c). The Board’s jurisdiction is undisputed and
established by the record. The Company also does not dispute that the identified managers
involved in monitoring or terminating Lazuli were its supervisors and agents within the meaning
of the Act at all relevant times. See the Company’s Aug. 12 answer, GC Exh. 1(f).
JD(SF)–06–20
2
A hearing to litigate these disputed issues was held on November 12, 2019. The General
Counsel and the Company thereafter filed briefs on December 17.2 As discussed below, the
General Counsel failed to prove the alleged violation by a preponderance of the evidence.3
I. THE RELEVANT FACTS5
At the time of the relevant events, the Little Big Burger Division Street location
employed approximately 10 fast-food workers to cover three daily shifts; an opening shift from
11 am–4 pm, a middle shift from noon to 8 pm, and a closing shift from 4–10 pm. There were
also two managers, Paul Moulnar and Jalen Ford. They performed essentially the same work as 10
the other employees (e.g., taking orders and making burgers and fries) but also trained new hires,
monitored them and other employees to ensure they followed company policies and procedures,
and managed the schedule and inventory. They also had the authority to verbally coach or
counsel employees; however, only the district manager could issue written discipline or take
other documented employment actions with the approval of the vice president of operations. 15
(Tr. 16, 20–21, 58–59, 125, 132, 172–176, 182, 214–215, 228–229.)
Moulnar and the district manager, Ben Cook, interviewed Lazuli in middle or late
January and she was hired shortly thereafter. Moulnar also performed the initial post-hire
training of Lazuli, which consisted of going through a checklist of items on her first day of work. 20
However, Lazuli was almost always scheduled to work with Ford rather than Moulnar thereafter.
So, it fell primarily to Ford to monitor Lazuli’s performance and provide her with ongoing
coaching and counseling where needed. (Tr. 21–22, 43, 47, 137, 177–178, 215; R. Exh. 3.)
Ford had only recently been made co-manager and had little or no previous managerial 25
experience or training other than what he had received on the job and in high school. However,
he had been working at Little Big Burger for over a year and was familiar with the Company’s
fast-food service policies and procedures. One of the most important ones, which he was
exceptionally vigilant in monitoring (“fixated on” according to Canaan Schlesinger, one of
Lazuli’s coworkers), was the requirement that employees comply with state and county health 30
codes and standards by washing their hands after using the restroom and before and after
handling food. Several signs were posted over the restroom sink and the kitchen handwashing
station instructing employees precisely when, where, how long, and how many times to wash
their hands (e.g., twice after using the toilet—once in the restroom and again in the kitchen).
And Ford reminded employees to comply with those instructions whenever he believed they had 35
failed to do so. (Tr. 127–128, 134–141, 171–172; R. Exhs. 4–5.)

2 The Charging Party, Little Big Union, was not the collective-bargaining representative of
the Company’s employees during the relevant period and it did not participate in the hearing or
file a posthearing brief.
3 Citations to the record are included to aid review and are not necessarily exclusive or
exhaustive. In making credibility findings, all relevant factors have been considered, including
the interests and demeanor of the witnesses; whether their testimony is corroborated or consistent
with the documentary evidence and/or the established or admitted facts; inherent probabilities;
and reasonable inferences that may be drawn from the record as a whole. See, e.g., Daikichi
Corp., 335 NLRB 622, 623 (2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003); and New Breed
Leasing Corp. v. NLRB, 111 F.3d 1460, 1465 (9th Cir.), cert. denied 522 U.S. 948 (1997).
JD(SF)–06–20
3
Ford began giving such reminders to Lazuli almost immediately. And he continued to do
so on a regular and frequent basis. Lazuli worked three and sometimes four shifts per week, and
Ford reminded her to wash her hands numerous times every shift (“probably more than 10 times
a shift” according to Lazuli). He did so in various situations and most often when Lazuli was
moving between working the register and handling food. (Tr. 15, 18–20, 23–27, 41–43, 102–5
104, 178.)
Ford also closely monitored Lazuli’s work performance generally. And he often
corrected her or offered suggestions when he believed she was not working efficiently and
keeping up with the pace of the line. This most frequently occurred when Lazuli was “building”10
burgers; he would step in and show her how to perform certain steps (such as folding the burger
in the paper) correctly and faster. He did this multiple times, once or twice every shift she
worked at that station. (Tr. 23–28, 42–43, 46–47, 64, 103–104, 177–180.)
Going into the third week, however, Ford was still not seeing much improvement with 15
respect to either Lazuli’s handwashing practice or her performance and pace. Moreover, on
February 13, Ford received a disturbing message from an employee who worked with Lazuli on
the previous day’s closing shift. The employee, Juleanna Manning, had been working at another
location in the district (Hawthorne Blvd.) for about 2 years and was a “key” (an employee who is
entrusted with a key to open or close). As was not uncommon, she and another Hawthorne20
“key” (Chrissy) had decided to work at the Division Street location as well to get more hours.
The February 12 closing shift was the first time they worked at that location, and the following is
what Manning texted to Ford about the experience:
Hey Jalen, are you the store manager? Sorry I’m new to [D]ivision [Street] and 25
not sure if I should talk to [District Manager Cook] about something or you? . . . It
[is] just about our closing shift last night. It was really rough working with
[Lazuli]. I am not trying to get her in trouble or anything maybe she just needs
more training? But I had to tell her multiple times to wash her hands after using
the bathroom. She spent 2 hours on prepping [two] things of cheddar and [one]30
onion. She was very [resistant] to take any direction from me or Chrissy. She
refused to use cut gloves. She was also like 20 minutes late and disappeared on
her phone a lot. It was just very challenging working with her last night. I just
thought a manager should be aware.
35
Ford replied that he and Moulnar had tried to train Lazuli “but the smallest things aren’t clicking
for her.” He told Manning that he had also reminded Lazuli “about washing her hands and not
being on her phone on the line.” He said, “[I]f things continue not working out, we’re probably
gonna have to let her go.” (R. Exh. 11; Tr. 158, 160, 165, 168–170, 177–186, 206, 210.)4
40

4 Manning subsequently found another job and was no longer employed by the Company at
the time of the November 2019 hearing. However, she was called by the Company to testify and
confirmed the events described in her February 13 text message. Manning testified that she had
to tell Lazuli at least twice to wash her hands at the kitchen handwashing station after using the
bathroom; that prepping the cheddar and onion should have taken only 15–20 minutes; that when
she asked Lazuli to use cutting gloves, Lazuli responded, “I’m not in the third grade”; and that
Lazuli went into the back prep area with her cell phone a lot. (Tr. 158–159, 162–167.)
JD(SF)–06–20
4
Ford discussed his concerns about Lazuli’s performance with District Manager Cook at
least once a week during their regular “check-ins.” Ford told Cook that things were not going
well; that he had scheduled Lazuli to work with him as much as possible so he could guide her,
but he was not seeing much improvement. He mentioned various issues, including those
reported by Manning, but said he was particularly concerned about her repeated failure to wash 5
her hands before or after handling food. Cook told Ford during each of their conversations to
continue coaching Lazuli. However, by the end of February, with Lazuli still showing little or
no improvement in response to coaching, Cook concluded she was probably not a good fit for the
job and would eventually have to be terminated. (Tr. 187–188, 199, 204, 217–220.)
10
Lazuli, however, had a different view of the situation. She believed Ford’s coaching and
suggestions were unnecessary and unwarranted; that most of the time he reminded her to wash
her hands she had already done so at the handwashing station (which was near where Ford was
typically standing), and she was never actually doing anything incorrectly when he interjected
and coached her about building burgers correctly. She spoke to three of her coworkers— Canaan 15
Schlesinger, Kayla Black, and Ian Decker—about this on several occasions beginning her second
week on the job. They agreed that Ford should not be treating her that way. Schlesinger,
suggested that they all speak with Ford as a group to make him aware of his conduct and give
him a chance to change it. They agreed and began looking for an opportunity and planning what
to say. (Tr. 23, 25, 32–33, 46, 65–66, 105.)5 20

5 There is no real dispute that Lazuli had such conversations with Schlesinger, Black, and
Decker, and subsequent events corroborate them. However, Lazuli, Schlesinger, and Black gave
inconsistent testimony regarding significant details. (Decker, who Schlesinger testified resigned
from Little Big Burger about a month before the hearing, did not testify.) For example, Lazuli
testified that Schlesinger told her that Ford had previously done the same things to other
employees, including Black. Lazuli also testified that Decker specifically told her that she
needed to be careful because the Company had a history of treating transgender people
differently. See Tr. 30–34. (Although the Company objected to this testimony as hearsay, and
the objections were either granted or the General Counsel disavowed reliance on the testimony
for the truth of the matter asserted, the testimony has properly been considered in evaluating
what was said during the conversations and/or credibility.) However, Black, who is herself
transgender and transferred to Division Street from another location in January 2019, testified
that when Lazuli asked the three of them if Ford treated them the same way, they told her that he
did not; that he generally kept to himself and didn’t really monitor what they were doing. And
Black made no mention whatsoever of any discussion between them about Ford’s treatment of
Lazuli being related to her transgender status. See Tr. 34, 65–66, 70, 89. Nor did Schlesinger,
who is non-binary. Schlesinger likewise did not corroborate Lazuli’s testimony that Schlesinger
said Ford had done the same things to Black. Further, contrary to Black’s testimony,
Schlesinger’s prehearing affidavit stated that Ford had “engaged in similar bullying” toward
Decker (who Schlesinger testified is not transgender) by “ceaselessly reprimanding and
correcting menial tasks,” and that a group of them, including Black, met and spoke with Ford
about it in late January or early February 2019. As previously indicated, Schlesinger also
testified that Ford was “fixated” on handwashing “generally,” not just with Lazuli. See Tr. 48,
53, 104–105, 115–120. See also fn. 7, infra.
JD(SF)–06–20
5
The planned conversation with Ford eventually occurred on March 1, shortly before 4
pm, the end of the opening shift. Lazuli, Schlesinger, and Black went into the back storage room
with Ford while Decker stayed out front to watch the line. Schlesinger, who had worked at
Division Street the longest of the three, since June 2018, spoke first. Schlesinger told Ford that
they just wanted to have a conversation with him and give Lazuli an opportunity to share her 5
experience in the workplace so far.6 Schlesinger said that it was not an attack on him or his
character, but just coworkers trying to help highlight some negative behavior that he may or may
not be aware of, and asked him to listen and try to be receptive.
Schlesinger then gave Lazuli the floor. Lazuli told Ford she thought he was treating her 10
differently than others and bullying her. She said that this wasn’t the first time she had faced
discrimination or harassment in a workplace because she was transgender. She said the prior
experiences had been more direct and heinous, but that Ford was also behaving in a targeted
manner, whether he knew it or not, and that subconscious personal biases play into that.
15
Black, who as noted above (fn. 5) transferred to Division Street from another location in
January 2019 and is likewise transgender, then shared her own experience. She told Ford that he
had been stoic and did not speak to her very much at all when she arrived.
Ford at that point interjected, saying he disagreed with everything they were saying. He 20
denied that he treated Lazuli or anyone else differently because of their gender identity. He said
he looked at everyone as just another human being and that he was monitoring and coaching
Lazuli so much because she wasn’t the best worker.
Schlesinger, however, told Ford that it was not the time for him to defend himself; that 25
they were not looking to hear from him at that moment and wanted him to just listen.

6 Schlesinger, who as noted above is non-binary, prefers to be referred to using gender
neutral “they/them/their” pronouns (Tr. 98). And, as reflected in the transcript, the parties and
witnesses respected that preference at the hearing. I am likewise inclined to respect
Schlesinger’s preference in this decision, just as I have by referring to Lazuli and Black with
female pronouns. (Black, who like Lazuli is a trans woman, said that either “she” or “they” is
fine. Tr. 55, 70, 89.) See, e.g., Todd v. Lovecruft, 2020 WL 60199, at *1 n. 1 (N.D. Cal. Jan. 6,
2020); League of Women Voters of Florida, Inc. v. Detzner, 314 F.Supp.3d 1205, 1211 & n. 4
(N.D. Fla. 2018); and Doe v. Fedcap Rehabilitation Services, Inc., 2018 WL 2021588, at *1
(S.D. N.Y. April 27, 2018). See also Farmer v. Haas, 990 F.2d 319, 320 (7th Cir.), cert. denied
114 S.Ct. 438 (1993); and Gordon v. Lizarraga, 2020 WL 32335, at *5 (N.D. Cal. Jan. 2, 2020).
But see U.S. v. Varner, 948 F.3d 250, 254–258 (5th Cir. 2020); and A.T. v. Everett School
District, 300 F.Supp.3d 1243, 1247 n. 2 (W.D. Wash. Jan. 9, 2018). However, using singular
“they/them/their” pronouns could be materially ambiguous and confusing in the context of
describing a group conversation and where the alleged violation is unlawfully terminating an
employee for engaging in protected concerted activity. One way to address this problem would
be to include a parenthetical clarification after each use of a “they,” “them,” or “their” pronoun
that references or includes Schlesinger. Another would be to simply structure the narrative and
sentences so that it is unnecessary to refer to Schlesinger with a pronoun. I have chosen the
latter option. Thus, all “they/them/their” pronouns in this decision, including in the sentence
above to which this footnote is appended, are plural and refer to more than one person.
JD(SF)–06–20
6
Schlesinger also reminded Ford that a group of them, including Black, had previously had a
similar conversation with him in late January or early February about engaging in similar
bullying behavior towards Decker. Schlesinger told Ford that his behavior was negatively
impacting all of them and they were not happy with it.
5
Ford replied that if he wasn’t allowed to talk or disagree, he was done with the meeting,
and left. Lazuli and Black then also clocked out and left. Schlesinger, who was working the
middle shift, returned to work. Ford also subsequently returned to work about 20–30 minutes
later but did not say anything further to Schlesinger about the subject.7
10
The following day, Saturday March 2, both Lazuli and Black were again on the opening
11 am–4 pm shift and Decker was on the middle noon–8 pm shift. Moulnar was supposed to be
the manager that day, but he was a no call/no show and Ford had to work instead. It turned out
to be a very busy day, with approximately 50 percent more business than usual. And Lazuli
again did not do well from Ford’s perspective. First, she was 10–15 minutes late and indicated 15
that she really didn’t want to be there. Second, she was slow taking orders at the register and a
customer complained in the middle of a rush that she was unable to repeat back the order and the
food they received was completely wrong. Third, after he moved her to the grill, he noticed that
she used her hands instead of a spatula to put raw meat on the grill and failed to wash her hands
afterwards. (Tr. 37, 71–72, 183, 188–191, 197–199, 206–207.)20
Eventually, around 3:15 pm, things slowed down. So, Ford left to take a 30-minute meal
break. Decker also took a 10-minute rest break at some point. Employees were given a paid 10-
minute rest break for every 4 hours worked, and both a paid 30-minute meal break and a paid 10-
minute rest break for every 6 or more hours worked. The managers sometimes helped 25
employees determine the best time to take their rest break, but the employees did not have to ask
permission to take it. They could take their rest break whenever they needed it and it looked like
a good time to do so, which was usually about halfway through the shift. (R. Exh. 3, p. 2; Tr. 22,
37, 62, 72, 95–96.)8

7 The foregoing summary of the March 1 conversation with Ford is based on the testimony of
Lazuli (Tr. 34–36, 48), Black (Tr. 67–71, 87–88), Schlesinger (Tr. 106–109), and Ford himself
(Tr. 201–202, 207). However, some details described by Lazuli or Black have been omitted
because they were not corroborated and were inconsistent with the weight of the evidence. For
example, Lazuli testified that Schlesinger began by telling Ford that he was treating Lazuli
“discriminator[ily]” and that “it wasn’t okay to single someone out because they’re trans” (Tr.
35). However, none of the other witnesses testified that Schlesinger specifically indicated that
Ford was treating Lazuli differently because she was transgender. Indeed, Schlesinger denied
specifically “speak[ing] to [Lazuli’s] experience on behalf of her” (Tr. 107). Similarly, Black
testified that, after Lazuli spoke, Schlesinger described personally experiencing “similar
discrimination” by Ford (Tr. 69–70). However, none of the other witnesses testified that
Schlesinger said this. There are also other variances in the accounts of the conversation, but they
are relatively minor or insignificant and have likewise been resolved applying the usual
credibility factors. See fn. 3, above.
8 Lazuli testified that Ford left on his break without telling them and that he was gone for 45–
60 minutes (Tr. 37). Black, however, testified that Ford took a 30-minute break. Further,
although Black likewise initially testified that Ford left without telling anyone, she subsequently
admitted that he said he would be “back in 30” when he left. (Tr. 72–73.)
JD(SF)–06–20
7
While Ford was gone, Lazuli and Black discussed the fact that they had not gotten their
own 10-minute rest break yet. And when Ford returned around 3:45–3:50 pm, they both
separately spoke to him about it. Lazuli spoke to Ford first near the handwashing station, telling
him that she didn’t get her rest break. Ford walked her into the back room and apologized,
saying he had not been able to get her a rest break because it was so busy. He then mentioned5
the various concerns he had with her work during the shift, including her late arrival, the
customer’s complaint, and not washing her hands after handling raw meat.
As it was almost 4 pm, Ford then told Lazuli she was free to go. However, Lazuli again
brought up the missed break and asked if he wanted her to just sit in the storage room for 10 10
minutes before clocking out. Ford said no, she should just leave. Lazuli protested, insisting that
she was legally entitled to a 10-minute rest break on the shift. She told Ford that he had two
options, either give her the break or put in writing that she was denied her break. Ford said he
would contact Cook, the district manager, and started texting him. However, he then instead
asked if he could email a written statement to her. Lazuli said okay and clocked out and left. 15
After Lazuli was gone, Black walked into the back room and asked Ford about her own
missed rest break. Like Lazuli, she asked him if he wanted her to just wait in the back for 10
minutes before clocking out. Ford apologized but said he couldn’t because he had already told
Lazuli no. However, like Lazuli, Black told Ford that it was a legal requirement. Black 20
suggested that Ford could change her timesheet to show that she clocked out 10 minutes after she
left. Ford at that point relented, saying Black had always been a good worker and because of that
he would change her timesheet. Black asked Ford if he would do the same for Lazuli, but he
would not confirm that.9 Black then left.10

9 Black testified that her timesheet was in fact changed (Tr. 75). The record does not reveal
whether Lazuli’s was. However, there is no allegation here that Ford unlawfully refused to
provide or pay Lazuli for a paid 10-minute rest break on March 2.
10 The foregoing summary of the March 2 conversations is based on the testimony of Lazuli
(Tr. 37–39, 48–51), Black (Tr. 72–77, 93–94), and Ford (Tr. 189–198, 203). There are again
various problems with the testimony. For example, Black did not corroborate Lazuli’s testimony
that they discussed their missed break together before Ford returned. However, the record as a
whole indicates that this likely occurred. There is also conflicting testimony about whether
Black followed Lazuli and Ford into the back room and whether Lazuli spoke to Ford about both
her missed break and Black’s missed break. Both Lazuli and Black testified that Black followed
Lazuli and Ford into the back room; that Lazuli asked Ford about both her missed break and
Black’s missed break; and that Ford said they both should just leave. However, Ford testified
that Black remained out front when he and Lazuli went into the back; that Lazuli asked him only
about her own missed break; and that he spoke to Lazuli only about her missed break. The
record as a whole supports Ford’s version. There is no evidence that Lazuli and Black agreed
that Lazuli would speak to Ford on Black’s behalf about her missed break. Indeed, there is no
evidence that they even discussed raising the issue with Ford. Lazuli testified that they just
complained to each other after Ford left on his break that he didn’t give them their break before
doing so. Further, there is no dispute that Black spoke to Ford separately about her own break
after Lazuli left. Both Black and Ford testified that she did so. As indicated by the Company, it
is unlikely Black would have separately asked Ford about her missed break as if Ford had never
addressed it if Ford had in fact already addressed it in her presence. Further, while it appears
JD(SF)–06–20
8
Ford subsequently called Cook and informed him about what had occurred that day. He
told Cook about Moulnar’s no call/no show and how busy it was. He also told Cook about
Lazuli’s continued poor pace and performance and handwashing practice. He let Cook know
that he did not think Lazuli was going to work out in the position. Finally, he also told Cook
about the missed rest breaks and that Lazuli and Black had raised the issue with him at the end of 5
their shift. (Tr. 198–200, 208–209, 221–222.)11

Black was aware that Ford had denied Lazuli’s request for a paid rest break, she likely could
have overheard this from outside the doorway to the back room. Lazuli testified that the kitchen
is “pretty small and narrow,” only about 25–30 feet long and 4 feet wide, and there is no
evidence that the door to the back room, if there is one, was ever closed. Alternatively, Lazuli
could have told Black on the way out. Although Lazuli testified that she did not speak to Black
on the way out, this was not corroborated by Black, who was never asked.
11 Ford’s testimony about his phone conversation with Cook regarding Lazuli’s deficiencies
on March 2 was somewhat garbled. For example, although not clear, his testimony suggests that
he described what happened in detail, including the customer complaint about her. See Tr. 198–
199. However, Cook testified that Ford just summarized what happened without going into
specifics. For example, Cook testified that he did not recall Ford mentioning a specific customer
complaint about Lazuli. (Tr. 221–222).
Ford also gave garbled testimony about informing Cook of his March 1 conversation with
Lazuli, Schlesinger, and Black. See Tr. 207 (“Q. [W]hen you talked to Ben Cook on March 2nd,
did you mention that meeting? A. Yes, I have. A. Okay. And what did you tell him about it? A.
I let him know that I had a conversation with [Lazuli] and multiple other coworkers about them
feeling like I am targeting [Lazuli] and feeling like I am trans-phobic. Q. Okay. And what did he
say, if anything? A. What did Ben say? Q. Yeah. A. I mean, it’s—he had pretty much
paraphrased that it’s just kind of not really part of the work environment as in like—like this
doesn’t need to be like issued as in like—. Q. Do you recall what he said? A. I don’t recall
exactly what he said, no.”). Cook, however, denied that Ford informed him prior to Lazuli’s
termination that he had been confronted by Lazuli and others about discriminatory treatment (Tr.
226). The two other managers who were subsequently involved with Lazuli’s termination—
Operations Vice President Adrian Oca and then-District Manager Emily Lindell (who herself
“identif[ies] as part of the queer community here in Portland”)—also denied any knowledge of it
(Tr. 143, 231–236). Further, Ford had at least two reasons not to inform Cook of the March 1
conversation at the time. First, Schlesinger had told him that they just wanted to make him
aware of how his conduct was perceived and Lazuli did not threaten to file a formal
discrimination charge. Second, if he brought it to Cook’s attention, the Company might have felt
obligated to open an investigation. See Lindell’s testimony, Tr. 231 (indicating that she would
have opened an investigation into such an allegation and likely terminated the manager if it was
proven true.)
Ford also testified that Cook asked him during the March 2 call what he thought they should
do about Lazuli, and that he “just let [Cook] know, like hey, I mean, my personal
recommendation is that we don’t, you know, keep her anymore.” (Tr. 200). Cook, on the other
hand, testified that he did not ask Ford for a recommendation on that call. However, Cook
confirmed that Ford’s “overall outlook on [Lazuli] was not positive.” (Tr. 222.)
As reflected above, I have generally given Cook’s testimony greater weight applying the
usual credibility factors.
JD(SF)–06–20
9
Cook responded that he understood how breaks could be missed when it is busy but that
Ford needed to make sure breaks were provided in the future. Regarding Lazuli’s continued
poor performance and pace and handwashing practice, Cook indicated that he would discuss it
with the management team. (Tr. 200, 221.)
5
Cook subsequently informed Adrian Oca, the Vice President of Operations, of Ford’s
reports about Lazuli. Based on those reports, Cook recommended that Lazuli be terminated
during her introductory probationary period. Oca, whose philosophy is “hire slowly and fire
quickly” if an employee is not working out, agreed. (Tr. 145–155, 223.)12
10
Cook went to Division Street to inform Lazuli of her termination on March 7, her next
scheduled shift. Emily Lindell, who as noted above (fn. 11) was also a district manager at the
time, went with him. While they were waiting in the back for Lazuli to arrive, Schlesinger
walked in and asked if they were there to fire Lazuli. Lindell said yes and asked for some
privacy. Schlesinger thereupon left but cautioned them on the way out that the situation was 15
complicated; that there was discrimination and mistreatment going on there by Ford and charges
were going to be filed if Lazuli was fired. Cook, who assumed Schlesinger was referring to
Ford’s refusal to give Lazuli a rest break on her previous shift, replied that that had nothing to do
with why they were there. (Tr. 110–111, 224–225, 233–234. See also fn. 11, supra.)
20
Lazuli arrived shortly after and they told her that she was being let go. Lindell said it was
not because of anything she did wrong; rather, as indicated on the termination notice, it was just
a nondisciplinary introductory-period termination of her at-will employment and she was eligible
for rehire in the future. Lindell then asked Lazuli to sign the termination form. However, Lazuli
refused to do so and left. As she was walking out, she remarked that she wasn’t surprised she 25
was being terminated “because Little Big Burger doesn’t like to give employees their breaks.”
(Tr. 40, 234; R. Exh. 10.)13
II. LEGAL ANALYSIS
30
The parties agree that the proper framework for analyzing whether Lazuli’s termination
violated Section 8(a)(1) of the Act is set forth in Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under that framework, the
General Counsel must prove by a preponderance of the direct and/or circumstantial evidence that

12 Oca, who was the Company’s designated representative and exempt from the sequestration
order, was called by the Company as its first witness. He testified that he also spoke with Ford,
possibly on the same call by speakerphone while Cook was still present. However, this was not
subsequently confirmed by either Cook or Ford, who were never questioned by counsel about it.
13 Lazuli testified that she told Cook and Lindell that she was being fired both “because I had
talked to [Ford] about discrimination and because I insisted on my right [to] a break.” However,
Lindell testified that Lazuli only made the above-quoted remark about breaks. I have credited
Lindell over Lazuli primarily for two reasons. First, as previously noted, Lazuli’s testimony
about other significant matters was contradicted by or inconsistent with the testimony of other
witnesses and the weight of the evidence. Second, Lindell, who now works at another company,
presented as a highly credible witness with no substantial motive to color her testimony in the
Company’s favor. See also fn. 11, above.
JD(SF)–06–20
10
the employee’s protected concerted activity was a substantial or motivating factor in taking the
adverse employment action, i.e., that a causal relationship existed between that activity and the
adverse action. This necessarily includes, but is not limited to, establishing that the employee
engaged in protected concerted activity, that the employer knew or suspected it, and that the
employer had animus against such activity. If the General Counsel makes a sufficient showing of 5
causation, the burden shifts to the employer to establish by a preponderance of the evidence that
it would have taken the same adverse action against the employee even absent the protected
concerted activity. See Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 5–8 (2019).14
As discussed below, the General Counsel failed to carry the burden of proof under this 10
analysis with respect to either Lazuli’s activity on March 1 or her activity on March 2.
A. Lazuli’s Activity on March 1.
There is no real dispute that Lazuli was engaged in protected concerted activity on March 15
1 when, along with Schlesinger and Black, she spoke with Ford about his treatment of her.
Although the Company’s answer to the General Counsel’s complaint denies that Lazuli was
engaged in protected concerted activity on March 1, the Company’s posthearing brief (p. 1) does
not dispute it. In any event, as indicated above, the record clearly establishes that Lazuli,
Schlesinger, and Black presented a group concern to Ford on March 1 regarding his treatment of 20
Lazuli. Accordingly, they were engage[d] in . . . concerted activities for the purpose of . . .
mutual aid or protection” within the meaning of Section 7 of the Act. See NLRB v. City Disposal
Systems, Inc., 465 U.S. 822, 830 (1984) (“The term ‘concerted activit[y]’ is not defined in the
Act but it clearly enough embraces the activities of employees who have joined together in order
to achieve common goals.”); and NLRB v. J. Weingarten, Inc., 420 U.S. 251, 260–261 (1975)25
(concerted activity by employees may be for “mutual aid and protection” even if only one of
them has an immediate stake in the outcome).
Further, given that Schlesinger and Black accompanied and spoke up for Lazuli on March
1, Ford obviously knew that his treatment of her was a group concern. Normally, in the absence 30
of contrary evidence, Ford’s knowledge would properly be imputed to Cook and Oca, who made
the decision to terminate Lazuli. See G4S Secure Solutions (USA), Inc., 364 NLRB No. 92, slip
op. at 4 (2016) (“[I]it is well established that the Board imputes a manager’s or supervisor’s
knowledge of an employee’s protected concerted activities to the decisionmaker, unless the
employer affirmatively establishes a basis for negating such imputation.”), enfd. 707 Fed. Appx. 35
610 (11th Cir. 2017). However, as noted above (fn. 11), a preponderance of the record evidence
here indicates that Ford did not inform Cook or Oca or anyone else in management about the
March 1 conversation before Lazuli was terminated.
Nevertheless, although Cook and Oca did not themselves know about Lazuli’s March 1 40
protected concerted activity, their decision to terminate her was based entirely on Ford’s reports
about her lack of improvement and likely unfitness for the position. Thus, if the General
Counsel established that Ford had animus against that activity and submitted negative reports
about her at least in part because of it, the termination would properly be found unlawful.

14 This analysis applies in both 8(a)(3) discrimination cases and 8(a)(1) retaliation cases
turning on employer motive. Wright Line, 251 NLRB at 1089. See also Tortillas Don Chavas,
361 NLRB 101 (2014); and Signature Flight Support, 333 NLRB 1250 (2001).
JD(SF)–06–20
11
See Acme Bus Corp., 357 NLRB 902, 903 n. 12 (2011), and cases cited there. However, the
General Counsel failed to do so. As discussed above, the evidence shows that Ford was
regularly submitting negative reports about Lazuli’s performance and pace and handwashing
practice before March 1. And they were not based only on his own observations; Ford received
an especially negative text message about Lazuli from Manning, an experienced employee and 5
“key,” on February 13.
Further, there is no direct evidence of animus or a retaliatory motive. Although Ford
disagreed with Lazuli’s and Black’s suggestion on March 1 that he might subconsciously be
targeting Lazuli because she was transgender, there is no evidence that he made any threats or 10
other coercive statements.
Finally, there is also insufficient circumstantial evidence. Although the close timing
between Lazuli’s protected activity and her termination is obviously suspicious, and would
normally be strong circumstantial evidence of a retaliatory motive, it is insufficient here to prove 15
the alleged violation. The termination came on the heels, not just of Lazuli’s March 1 protected
activity, but also of her particularly poor performance on her March 2 shift.15 Further, the
Company had not tolerated Lazuli’s deficiencies for a lengthy period prior to her March 1
protected concerted activity. She had been employed for only about 5 weeks, had worked a total
of only about 12–15 shifts, and was still within her introductory/ probationary period.1620
B. Lazuli’s Activity on March 2.
Unlike Lazuli’s activity on March 1, the Company disputes that Lazuli was engaged in
protected concerted activity on March 2 when she asked Ford near the end of the shift about not 25
having received a paid rest break. And this presents a closer question. As noted above (fn. 10),
Lazuli and Black did not specifically discuss raising the issue with Ford, and Lazuli spoke to
Ford alone and only about her own missed paid rest break. However, Lazuli and Black had
discussed Ford’s failure to give them a rest break before leaving on his meal break. Further, they
both seriatim raised the issue with Ford when he returned. And Black spoke to Ford about both 30
her own missed paid rest break and Ford’s denial of Lazuli’s request for a paid rest break. Thus,
the totality of the circumstances indicates that Lazuli brought a “truly group complaint” to Ford
regarding the missed paid rest break and that Ford (and Cook based on Ford’s report) knew or

15 The General Counsel argues that Ford’s testimony about Lazuli’s poor performance during
the March 2 shift should be discredited because it was not corroborated by any documentary
evidence. However, there is no evidence that Ford or other managers had a practice of
submitting written reports to Cook or that Cook had a practice of documenting his “check-ins”
with Ford or other managers. Further, Ford’s testimony was not controverted by either Lazuli or
Black.
16 Cf. ODS Chauffeured Transportation, 367 NLRB No. 87, slip op. at 17 (2019) (finding
animus where the employer terminated the employee within a few days after his protected
activity and had tolerated his alleged bad work behavior for years). The General Counsel also
argues that the Company gave shifting explanations for terminating Lazuli. However, the record
does not provide substantial support for that argument. Consistent with the Company’s answer
to the complaint, the hearing testimony indicated that Lazuli was terminated primarily because of
Ford’s reports about her poor performance and pace and failure to wash her hands despite
repeated coaching and numerous reminders.
JD(SF)–06–20
12
suspected it. See Alstate Maintenance, LLC, 367 NLRB No. 68, slip op. at 3 (2019), discussing
and reaffirming Meyers Industries (Meyers II), 281 NLRB 882, 887 (1986), affd. sub nom Prill
v. NLRB, 835 F.2d 148 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
However, the General Counsel failed to establish that the Company had animus against 5
that activity and terminated Lazuli for it. Again, other than the fact that Ford denied Lazuli’s
request (which as previously noted is not an alleged violation), there is no direct evidence of
such animus or a retaliatory motive. And as discussed above the timing of the termination alone
is insufficient circumstantial evidence here to prove the allegation.
10
CONCLUSIONS OF LAW
The Company did not violate Section 8(a)(1) of the Act by terminating Zaria Lazuli’s
employment on March 7, 2019.
15
ORDER17
The complaint is dismissed.
Dated, Washington, D.C., February 19, 202020

Jeffrey D. Wedekind
Administrative Law Judge
25

17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules, the findings,
conclusions, and recommended Order will be adopted by the Board and all objections to them
will be deemed waived for all purposes as provided by Sec. 102.48 of the Board’s Rules.
c c ----A-4