Copper River Grill

National Labor Relations Board - Administrative Judge Opinions

Sep 25, 2013

10-CA-085934 (N.L.R.B. Sep. 25, 2013)

JD(ATL)–26–13
Boiling Springs, SC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
COPPER RIVER OF BOILING SPRINGS, LLC
and CASES 10-CA-085934
10-CA-088882
AUTUMN BALLEW, An Individual
and 10-CA-087199
KATIE MASSEY, An Individual
Jasper C. Brown, Jr., Esq., for the General Counsel.
Stephen F. Fisher, Esq. and Lee Daniels, Esq.
(Wimberly, Lawson, Daniels & Fisher, LLC),
of Greenville, South Carolina, for the Respondent.
DECISION
Statement of the Case
KELTNER W. LOCKE, Administrative Law Judge. Because credited evidence does not
establish that Respondent discharged two employees for union or protected concerted activities, I
conclude that Respondent did not engage in unlawful discrimination. However, Respondent
violated Section 8(a)(1) of the Act when its supervisor asked an employee to keep him informed
about the union organizing campaign.
Procedural History
This case began July 24, 2012, when Autumn Ballew, an individual, filed an unfair labor
practice charge against her former employer, Copper River of Boiling Springs, LLC (the
Respondent), in Case 10–CA–085934. She amended that charge on August 7 and22, 2012,
November 13, 2012, and January 17, 2013.
On September 7, 2012, Ballew filed another charge against Respondent, in Case 10–CA–
088882.
JD(ATL)–26–13
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On August 14, 2012, another former employee, Katie Massey, filed an unfair labor
practice charge against Respondent in Case 10–CA–087199. She amended that charge on
January 28, 2013.
5
On January 30, 2013, after investigation of the charges, the Regional Director for Region
10 of the Board, acting on behalf of the Board’s acting General Counsel (the “General Counsel”
or the “government”), issued an order consolidating cases, consolidated complaint, and notice of
hearing. The Respondent filed a timely Answer.
10
On March 22, 2013, the Regional Director issued an amended consolidated complaint
and notice of hearing which, for brevity, I will refer to as the “complaint.” The Respondent filed
a timely Answer.
On April 22, 2013, a hearing opened before me in Greenville, South Carolina. During the 15
hearing, the General Counsel amended the complaint by added certain allegations and
withdrawing others, which will be discussed below.
The parties presented evidence on April 22, 23, and 24, 2013, when the hearing closed.
Thereafter, the parties filed briefs, which I have considered.20
Admitted Allegations
In its Answers, the Respondent admitted some of the allegations. Based on those
admissions, I make the following findings.25
The charges and amended charges were filed and served as alleged in complaint
paragraph 1.
The General Counsel has proven the allegations raised in complaint paragraphs 2, 3, 4,30
and 5. More specifically, I find that at all material times, the Respondent has been a limited
liability company with an office and place of business in Boiling Springs, South Carolina, and
has been operating a public restaurant selling food and beverages. It meets both the statutory and
discretionary standards for the exercise of the Board’s jurisdiction and has been, at all material
times, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the 35
Act.
Based on Respondent’s admission of the allegations in complaint paragraph 7, as
amended at hearing, I find that at all material times, the following individuals were Respondent’s
supervisors within the meaning of Section 2(11) and its agents within the meaning of Section 40
2(13) of the Act: Owner/Operator Joshua Walker; Manager Will Lawrence; Manager Keith
Means; and Vice President and Chief Operating Officer Stephen Jackson.
During the hearing, the General Counsel moved to amend complaint paragraph 7 to add
the allegations that Chief Executive Officer Angell and the Respondent’s human resources 45
director, J. Anthony Worthington, were supervisors and agents of Respondent within the meaning
JD(ATL)–26–13
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of Section 2(11) and 2(13) of the Act, respectively. Respondent did not oppose the amendment.
As to the supervisory and agency status of these two persons, Respondent denied “any and all of
the conduct by them or at their direction.”
Respondent presented uncontradicted testimony that Angell possessed sole authority to 5
discharge and that he made the decision to discharge Autumn Ballew and Katie Massey after a
careful and nonroutine examination of the facts. Such testimony, which I credit, also proves that
Angel was a supervisor of Respondent, because Section 2(11) of the Act defines “supervisor” to
mean “any individual having authority, in the interest of the employer, to. . .discharge. . .other
employees. . .if in connection with the foregoing the exercise of such authority is not of a merely 10
routine or clerical nature, but requires the use of independent judgment.” See 29 U.S.C. §
152(11).
Although I find that Angell has been a supervisor of Respondent at all material times, it is
not necessary to resolve whether Worthington also possessed sufficient 2(11) indicia to warrant 15
that conclusion. Uncontradicted evidence clearly establishes that the human resources director
was Respondent’s agent within the meaning of Section 2(13) of the Act, and I so find.
Respondent has admitted that, as alleged in complaint paragraph 10(a), it has maintained
in its employee handbook a rule which prohibits “Insubordination to a manager or lack of respect 20
and cooperation with fellow employees or guests. This includes displaying a negative attitude
that is disruptive to other staff or has a negative impact on guests.” I so find.
Respondent also has admitted that, as alleged in complaint paragraph 10(c), it has
maintained a rule prohibiting employees from engaging in “Any other action or activity which 25
the Company believes represents an actual or potential threat to the smooth operation, goodwill,
or profitability of its business.” I so find.
Complaint paragraph 13 alleges that Respondent discharged employee Katie Massey on
April 19, 2012, and discharged employee Autumn Ballew on July 17, 2012. Based on the 30
Respondent’s admissions, I find that it discharged Massey on April 19, 2012, as alleged, and
discharged Ballew, but on July 16, 2012, rather than July 17, 2012.
Union Status Allegations
35
Complaint paragraph 6(a) alleges that the National Workers Association is an
organization in which employees participate and which exists for the purpose, in whole or in
part, of dealing with employees concerning grievances, labor disputes, and terms and conditions
of employment. Complaint paragraph 6(b) alleges that at all material times, the National
Workers Association has been a labor organization within the meaning of Section 2(5) of the Act. 40
The Respondent has denied these allegations for lack of sufficient knowledge.
The record reveals very little about the “National Workers Association.” No evidence
clearly delineates its organizational structure, its officers, or when it came into existence.
Indeed, credible evidence does not does not even establish that it exists except for the name. 45
However, a footnote in the General Counsel’s posthearing brief states that on March 7, 2013, the
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Regional Director for Region 10 issued a decision and direction of election in Case 10–RC–
098046, “finding, inter alia, that the National Workers Association is a labor organization within
the meaning of Section 2(5) of the Act.” The Board has published this Decision and Direction of
Election on its website: http://www.nlrb.gov/case/10RC098046.
5
Taking administrative notice of this decision, and based on its findings, I conclude that
the General Counsel has proven the allegations raised in complaint paragraphs 6(a) and 6(b).
Therefore, I further conclude that the National Workers Association is a labor organization within
the meaning of Section 2(5) of the Act.
10
The March 7, 2013 Decision and Direction of Election stated that Kevin Ballew was the
“chief representative” of the National Workers Association (for brevity, the “Union”) and had
been for about 7 months. Therefore, it would appear that Ballew assumed that position with the
Union after the events which the complaint alleges to be unfair labor practices.
15
According to a footnote in the General Counsel’s brief, Kevin Ballew is not related to
Autumn Ballew, one of the two charging parties in this case, and her testimony described Kevin
Ballew as a “friend.” The record does not indicate they are kin. Kevin Ballew did not take the
witness stand in this proceeding, but Autumn Ballew gave the following testimony regarding
how the union started: 20
Q. At some point during 2012, did the employees try to organize a union?
A. Yes, sir.
Q. And who were the leading employees who tried to organize the Union?
A. Kevin Ballew, Katie Massey, and myself. 25
Q. Okay. And when did you all start on this union campaign?
A. December or January 2012.
Q. December of 2011 and January 2012?
A. Correct.
Q. Okay. And what did you do regarding the Union? Explain just what kind 30
of activities did you engage in?
A. Well, we did a lot of research and we made flyers.
Q. A lot what?
A. A lot of research. We just did a lot of research and we made flyers. We
put flyers on the employees’ cars. We talked to the employees about 35
organizing and what the Union could do for them. Told them what you
know, exactly what we were doing and if they agreed with it, we would
get them to sign a petition, a showing of interest.
Q. Umhmm. Did you distribute any flyers and the Union—and flyers about
the Union?40
A. We distributed informational flyers and flyers that we would hold
meetings for the employees to come to.
The General Counsel introduced some of the flyers into the record. One of them urged
employees to unionize but did not specifically mention the name “National Workers 45
Association.” Another stated that “We will be having a meeting on May 21 at 6 pm at Kevin’s
JD(ATL)–26–13
5
home to discuss our plans to support” legislation pending in Congress which would raise the
minimum wage for tipped employees. This flyer does not mention “National Workers
Association” or use the word “union.”
The General Counsel also introduced into evidence a petition titled “DECLARATION 5
OF WORKERS UNITY” (the “s” on “workers” having been scratched out) which began by
stating that “WE THE EMPLOYEES OF COPPER RIVER GRILL” wished to exercise their
“right to bargain collectively.” It bore the signatures of 8 individuals, with dates ranging from
“1–3–12” to “7/1/12.”
10
The name “National Workers Association” does not appear on this petition. From all the
circumstances, it seems likely that the Kevin Ballew, Autumn Ballew, and Katie Massey formed
the union first and named it later. Needless to say, that sequence of events would not diminish in
any way the protection afforded by Section 7 of the Act.
15
Withdrawn Allegations
Complaint paragraph 12(a) had alleged that at some time in May 20, 2012, “Respondent’s
employee Ballew,” presumably referring to Autumn Ballew, had “engaged in concerted activities
with other employees for the purposes of mutual aid and protection, by advocating to 20
management on behalf of another employee regarding the mistreatment that employee was
receiving.” Complaint paragraphs 12(b) and 12(c) had alleged that because of this protected
activity, Respondent had suspended Ballew for the remainder of her shift. However, at hearing,
the General Counsel withdrew these allegations from the complaint.
25
Because the allegations have been withdrawn, I will not address them further or make
any findings related to them.
Disputed Allegations
30
Complaint Paragraph 8(a)
Complaint paragraph 8(a) alleges that “about March 2012,” Respondent, by Will
Lawrence, threatened employees with discharge because of their union activities. Respondent
denied this allegation.35
For clarity, and to avoid confusion with other allegations, it may be helpful to quote the
General Counsel’s brief to identify the specific conduct which complaint paragraph 8(a)
describes. The brief states, in part, as follows:
40
Massey testified that, in March, after she completed her evening work shift, she
went out into the parking lot where she met with K. Ballew and A. Ballew. (TR
99100) At that time, A. Ballew and K. Ballew were placing union flyers on
employee vehicles in the parking lot. (TR 100) Supervisor Lawrence came out to
the parking lot and called Massey over to his vehicle. A. Ballew followed 45
Massey and was also present during this discussion. (TR 101, 143144) When
JD(ATL)–26–13
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Massey arrived at Lawrence’s vehicle, he asked what K. Ballew was doing. (TR
100) Massey told Lawrence that they were distributing flyers and waiting on the
other servers to come out after they got off work. (TR 100) Lawrence then asked
Massey, what they we doing? (TR 100) She stated again that they were passing
out flyers and waiting on other servers. (TR 100) Lawrence then asked her, “Do 5
you know what Kevin is doing is illegal?” (TR 100) Lawrence then told Massey
that being involved in this kind of activity could affect her job. (TR 100)
This quoted portion of the General Counsel’s brief does not describe some predicate facts
which place the events in quite a different context. Although at one time Kevin Ballew had been 10
one of Respondent’s employees, he was not an employee in March 2012. Rather, uncontroverted
evidence establishes, and I find, that Respondent had discharged him 2 ½ years earlier, on
September 8, 2009, for theft.
Respondent had pressed criminal charges against Ballew, but he agreed to pay, and did 15
pay, $800 in restitution, resulting in the charges being dropped. An agreement to pay this
restitution, and bearing what appears to be Kevin Ballew’s signature, is in evidence.
Even though Kevin Ballew had been discharged for theft, he returned to the restaurant as
a customer and created a disturbance. This incident occurred sometime around February 26, 20
2012, on an evening when Manager Will Lawrence was on duty. Based on my observations of
the witnesses, I conclude that Lawrence’s testimony is trustworthy and I rely on it here. As noted
above, Kevin Ballew did not testify in this proceeding.
On this occasion, a server reported to Lawrence that “a guy was bothering them” while 25
they were working in the silverware rolling area. Lawrence discovered that the server was
referring to Kevin Ballew. Lawrence’s testimony, which I credit, describes what happened next:
I, you know, I told him he can’t really bother the servers while they’re working.
And that was all I said; he flipped out on me, started yelling at the top of his lungs 30
and using profanity, and I still had about 15 tables in the restaurant. And so at that
point when he started doing that, I asked him to leave, and he continued to yell as
he walked out of the restaurant. And when he got into the parking lot, screeched
tires out of the parking lot. Basically, I mean, I think there were, you know, a
couple of families out there that were trying to get to their cars, so that kind of 35
was, you know, pretty scary that he was, you know, rodding out like that. But he
left after that, then that was the end of him being there that night.
Lawrence reported the incident to higher management. Respondent’s director of human
resources, Anthony Worthington, served Ballew with a “no trespass” letter dated February 27, 40
2012. This letter stated as follows:
This Letter is to notify you that you are hereby placed on TRESPASS NOTICE
on any and all property owned by Copper River of Boiling Springs, LLC located
at 2104 Boiling Springs Rd., Boiling Springs, SC 29316. 45
JD(ATL)–26–13
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If you fail to honor this notice and return to Copper River of Boiling Springs, you
will be charged with TRESPASSING AFTER NOTICE (SC Code 1611600)
Notwithstanding that he had been served with the “no trespass” letter, Kevin Ballew
came on Respondent’s property again in March 2012. At this point, he had not been an 5
employee of Respondent for more than 2 years. Autumn Ballew gave the following testimony
concerning this incident:
Q. Okay. Explain for the Judge what happened. This is March of 2012.
A. Okay. Kevin Ballew and myself were outside in the parking lot, putting 10
flyers on the employees’ cars. Katie had just got off a shift and had joined
us, and Will came out of Copper River from his shift, from his a.m. shift,
and saw
Q. This is Will Lawrence?
A. Will Lawrence, yes. 15
Q. Yeah.
A. saw Kevin in the parking lot and asked him to leave. And we Katie and I
walked over to my car, and then Will Lawrence pulled his car closer to us
and called Katie Massey over to the car, and I followed shortly behind her.
And when I came up in the conversation, Will was asking what Kevin 20
Ballew was doing. She told him that we were passing out flyers to get
better working conditions. And he told us that we couldn’t be associated
with that and it was going to cost us our jobs.
Massey gave similar testimony:25
And Will Lawrence got off work 10 to 15 minutes after I did. He came out, got in
his car, called me over to his car. I came over there. He asked me what Kevin
Ballew was doing. I told him that flyers were being put on the other employees’
cars and we were, you know, waiting on other servers to come out after they had 30
gotten off work to answer their questions and explain more to the ones who didn’t
really have the full understanding of it, what it was about and our intentions.
And Will asked me when he asked me what we were doing, I said, “Passing out
flyers, waiting on the other servers.”35
And he said, like, “Do you know that what Kevin is doing is illegal?”
And I said, “It’s not illegal. He is you know, he has the right to do this.”
40
And Will stated that being involved in this kind of activity could affect my job.
As he pulled up some more, closer to where the cars were parked, Autumn
approached the car, and Autumn was told the same thing, that doing this could
hurt us as employees there.
45
JD(ATL)–26–13
8
Lawrence did not recall any incident involving Kevin Ballew, Autumn Ballew, and Katie
Massey placing flyers on cars. My observations of his demeanor while testifying lead me to
conclude that Lawrence was a conscientious and reliable witness. Moreover, had the incident
described by Autumn Ballew and Massey actually have taken place, it seems quite likely that
Lawrence would have remembered it, since it would have been an occasion when Kevin Ballew 5
violated the “no trespass” letter.
Lawrence did describe an instance, which occurred sometime after Kevin Ballew
received the “no trespass” letter, when Lawrence was leaving work and spotted Kevin Ballew on
the Respondent’s property, but Ballew was on the restaurant patio rather than in the parking lot. 10
Lawrence gave the following testimony concerning this occasion:
Q. Do you recall or can you describe the first incident on which you
remember him returning?
A. The first incident that he returned I was leaving from. . .we’d had 15
inventory on Sunday night, and I was leaving work to go to my car, and
Kevin was out on the patio with Autumn Ballew and Katie Massey and
another gentleman that I did not know. I didn’t say anything to them. I
walked back into the restaurant, told my owner/operator, Josh Walker, that,
you know, Kevin was on the patio and that he needed to call the, you 20
know, you need to call the cops. Josh picked up his phone, dialed 911,
and, you know, about right after he called, he squealed out of the parking
lot.
Q. Who’s he?
A. Kevin, yes, sir. 25
Later in his testimony, Lawrence explicitly denied discussing this incident with either
Katie Massey or Autumn Ballew. Further, he explicitly denied ever asking either of them “what
Kevin Ballew was up to” and also denied telling either Massey or Autumn Ballew that union
activities could affect their job.30
My observations of the witnesses lead me to conclude that Lawrence was telling the truth
and that his testimony is more reliable than that of Massey or Ballew. Therefore, crediting
Lawrence, I conclude that he did not make the statements which Massey and Ballew attributed to
him. Accordingly, I further conclude that the government has not proven the allegations raised in 35
complaint paragraph 8(a).
However, even if I had credited Massey and Ballew, I would conclude that the words they
attributed to Lawrence did not violate Section 8(a)(1) of the Act. As always, in evaluating
whether a statement by a supervisor or manager reasonably would interfere with, restrain, or 40
coerce employees in their exercise of Section 7 rights, the words must be considered in context,
because the context necessarily affects how employees reasonably would understand the words.
Lawrence credibly testified that at this time, he was unaware of any effort to organize a
union. That testimony is consistent with the fact that the Regional Director did not issue a 45
Decision and Direction of Election until March 7, 2013, almost a year later. There is no reason
JD(ATL)–26–13
9
to believe that Lawrence would view the presence of Kevin Ballew on the Respondent’s property
as having anything to do with a union organizing drive.
Lawrence would not have regarded Ballew as a union organizer because he was unaware
that Ballew had ever been involved in such activity. (In this regard, Autumn Ballew’s testimony, 5
quoted above, indicates that she and Kevin Ballew and Katie Massey decided to start a union
sometime in December 2011, more than 2 years after Kevin Ballew’s employment with
Respondent had ended.) Based on his experience, Lawrence would have known that Ballew was
a former employee who had been discharged for stealing from the company, who had avoided
prosecution by paying back the money he had stolen, and who had, more recently, created such a 10
noisy commotion at the restaurant that higher management had served him with a “no trespass”
letter warning that if he returned he would be prosecuted.
A typical person with Lawrence’s knowledge of events would not have looked at Kevin
Ballew and thought “union organizer” but instead would have been astonished and puzzled by a 15
temerity which, for want of a better word, might be called sociopathic. Most people who had
been caught stealing, and fired for it, would be too ashamed to return to the scene of the crime.
Not Ballew. Most people who had been served with a notice that they would be prosecuted if
they trespassed would take care to stay away. Not Ballew.
20
The essence of trespass is an entering or presence on property without permission. If
Respondent’s employees participated with Kevin Ballew in any activity on Respondent’s
property—any activity at all, whether playing cards, dancing the two-step, or just laughing at a
joke—their participation could create the impression that Ballew had at least tacit permission to
be there. Potentially, it could undermine the Respondent’s ability to enforce the “no trespass”25
letter.
Respondent had a legitimate interest in making sure that its employees did not act in a
manner which would not undermine its legal ability to exclude trespassers. Moreover, no
antiunion motivation entered into Respondent’s decision to send Kevin Ballew a letter forbidding 30
his presence on its property. That decision resulted from Ballew’s previous noisy disturbance in
the dining room, which had nothing at all to do with organizing a union or with employees’
protected, concerted activities.
This context would have affected how employees reasonably would have understood the 35
words attributed to Lawrence. Even in the testimony offered by Massey and Autumn Ballew,
and relied upon by the General Counsel, Lawrence did not refer to union activity but merely
stated that what Kevin Ballew is doing was illegal, which was a statement of fact. Kevin
Ballew’s presence on the property, after having been served with the “no trespass” letter, was a
crime in progress.40
According to Massey and Autumn Ballew, Lawrence added—after remarking that Kevin
Ballew was acting illegally—either that “we couldn’t be associated with that and it was going to
cost us our jobs” (Autumn Ballew’s testimony) or “being involved in this kind of activity could
affect my job” (Massey’s testimony). The message communicated by such statements depends 45
on the meaning imputed to the vague phrases “with that” and “this kind of activity.” Considering
JD(ATL)–26–13
10
that Lawrence had just stated that Kevin Ballew was breaking the law, the words “with that” and
“this kind of activity” reasonably would be understood to refer to the unlawful trespass, not to
protected activity.
A restaurant owner which has issued a “no trespass” letter to exclude a rowdy customer 5
properly expects its staff not to engage in conduct which appears to condone a breach of that
letter. It may require its staff to tell that customer to leave the premises. Likewise it may forbid
its employees from engaging in activities on company property which might act as a waiver of
the prohibition or create the appearance that the trespasser was now welcome. Therefore, even if
Lawrence had made the statements attributed to him, such statements reasonably would have 10
been understood as referring to the unlawful trespass and not to protected activities.
However, as stated earlier, based on my observations of the witnesses’ demeanor while
testifying, I credit Lawrence rather than Massey and Ballew, and therefore find that he did not
make the statements they attributed to him. I recommend that the Board dismiss the unfair labor 15
practice allegations related to Section 8(a) of the complaint.
Complaint Paragraphs 8(b), 9(a) and 9(d)
Complaint paragraph 8(b), like paragraph 8(a), alleges that Respondent, by Will 20
Lawrence, threatened employees with discharge for their union activities in about March 2012.
Because the language in the complaint does not provide details which would distinguish the two
allegations, clarity will be served by quoting again from the government’s brief.
Massey testified about a second conversation with Lawrence, which took place in 25
March or April in the kitchen of the restaurant. (TR 10 1102) A. Ballew was also
present during this discussion about the Union. (TR 101102) Massey testified that
as they stood near the pizza bar in the kitchen looking toward the restaurant
dining area, Lawrence asked her about K. Ballew’ s intentions and what he was
trying to do. (TR 102) Massey told Lawrence that K. Ballew was trying to get 30
better working conditions and to inform the workers of their rights. (TR 102)
Lawrence then asked her if she had signed the petition that was being circulated.
(TR 102) She said yes; he then rolled his eyes in derision. (TR 102) Massey told
Lawrence that K. Ballew’s intentions with the Union were good. (TR 102)
Massey stated that Lawrence again threatened her by stating that “this” could 35
affect her job, especially if it got back to corporate or Owner/Operator Walker.
(TR 102)
A. Ballew also testified about this discussion in the kitchen with Massey and
Lawrence. (TR 144145) A. Ballew recalled that the discussion took place in 40
March inside the kitchen. (TR 144145) She testified that Lawrence again asked
what K. Ballew was doing. (TR 145) She told Lawrence that there was a petition
going around to organize a union. (TR 145) A. Ballew testified that, during this
discussion, Lawrence asked the two employees if they had signed the petition and
they both said yes. (TR 145) According to A. Ballew, Lawrence stated that it was 45
illegal to solicit for a petition around the restaurant, and that it could look bad on
JD(ATL)–26–13
11
them down the road to be associated with that. (TR 145) Lawrence also said that
it could cost them their jobs. (TR 146)
The conduct described in the portion of the General Counsel’s brief quoted above
includes not only the threat alleged in complaint paragraph 8(a) but also an instance of 5
interrogation alleged in complaint paragraph 9(a), which states that Respondent, by Will
Lawrence, on “several occasions in about March 2012, at the Employer’s facility, interrogated its
employees about their union activities and the union activities of other employees.”
Therefore, I will consider both allegations here.
10
Massey testified that sometime during March or April 2012, while standing near the pizza
bar at Respondent’s restaurant, she had a conversation with Manager Lawrence. According to
Massey, Lawrence asked her “what were Kevin’s intentions and what was he trying to do,” to
which she replied that “Kevin’s intentions were good, that we were trying to get better working
conditions and inform other servers of their rights, other employees of their rights.” From the 15
context, I infer that “Kevin” referred to Kevin Ballew. Massey further testified as follows:
And Will asked me, Will Lawrence asked me if I had signed the petition. I
responded that, yes, I did. He kind of—he like rolled his eyes at me. And I told
him that what Kevin was doing was not anything bad, that it was good. It was 20
going to make things better, the working conditions better there, and that it had
nothing to do with any kind of like revenge towards like anybody. It wasn’t about
trying to harm anybody or anything. It was his intentions were you know, the
intentions with the Union were good intentions.
25
Q. BY Mr. BROWN: So what, if anything did he say anything else in
response?
A. He said again that this could affect my job, especially if it got back to
corporate or Walker.
30
Autumn Ballew gave similar testimony concerning a conversation in March 2012 which
involved Massey, Manager Lawrence, and herself. She testified that Lawrence asked them what
Kevin Ballew was doing and that they told him that the petition was to organize. “And he told us
that it was going to look bad on us down the road and that it could cost us our job and that it was
illegal to solicit a petition in the restaurant.” Ballew further testified that Lawrence asked both of 35
them whether they had signed the petition.
According to Massey, Lawrence’s questioning of her was not limited to this one instance
described above. Massey testified that “every few days” and at least once a week during the
period of March and April 2012, Lawrence would ask her “what exactly was going on, what we 40
intended to do with this, why we were trying to do this, and he would I would tell him, you
know, every time that I would explain to him that we were just trying to get better working
conditions.”
In his testimony, Lawrence specifically and unequivocally denied making the statements 45
which Massey and Ballew attributed to him. Based on my observations of the witnesses when
JD(ATL)–26–13
12
they testified, I conclude that Lawrence’s testimony is more reliable than that of Massey or
Ballew, which I do not credit.
Accordingly, I find that the government has not proven the allegations raised in complaint
paragraphs 8(b). Therefore, I recommend that the Board dismiss the unfair labor practice 5
allegations predicated on paragraph 8(b).
Because I do not credit Massey’s testimony, it also does not prove the allegations raised
in complaint paragraph 9(a). However, the language of paragraph 9(a) refers to more than one
event. (It begins, “On several occasions in about March 2012.”) To establish these allegations, 10
the General Counsel also elicited testimony from another employee, Victoria Ballard, concerning
a different conversation.
Before discussing that evidence, one other matter should be noted to prevent confusion.
After the General Counsel examined Ballard, he decided that her testimony described not just the 15
interrogation alleged in complaint paragraph 9(a) but also a separate 8(a)(1) violation not alleged
in the complaint. Therefore, he amended the complaint to add a new paragraph 9(d), which
states as follows: “On or about the latter part of April or early part of May 2012, supervisor Will
Lawrence instructed an employee to report on the union activities of other employees.”
20
The Respondent denied this allegation. It has also raised the defense that the allegation is
time barred under Section 10(b) of the Act. As already noted, the General Counsel relied on the
testimony of employee Victoria Ballard both to prove the allegations in both complaint
paragraphs 9(a) and 9(d). At the time she took the witness stand, Ballard was working at
Respondent’s restaurant as a server. She testified that in late April or early May 2012, she had a 25
conversation with Manager Lawrence in the office adjoining the kitchen at Respondent’s
restaurant. No one else was present.
Ballard’s testimony does not establish why Ballard was speaking with Lawrence or how
the meeting had begun. Thus, it not entirely clear whether Lawrence called Ballard into the 30
office or whether she had approached him. (However, her testimony that only the two of them
were present because Lawrence “just asked to keep it private” certainly would be consistent with
a conclusion that Lawrence initiated the meeting.) Ballard further testified as follows:
Q. BY Mr. BROWN: All right. What did Mr. Lawrence say to you?35
A. Well, at first he was kind of hesitant, but he started to say, “Is everything
okay?” And he goes on to ask me, did I sign the paper?
And I acknowledged what he was talking about, and I was like,
“Yes, I did sign that paper.” And I was like, “I don’t understand why
you’re so worried about it,” you know.40
And then he goes, “Well, just keep that between us and if anything
else happens or you have any more information,” just come and tell him.
And that’s what I did. Besides, I talked to John about it, but that’s
the only person.
Q. Okay. And that was the end of the conversation?45
A. Yes, sir.
JD(ATL)–26–13
13
Lawrence denied that he asked Ballard whether she had signed anything. As discussed
earlier in this decision, my observations of the witnesses lead me to place confidence in the
reliability of his testimony.
5
Additionally, although I certainly believe that Ballard was scrupulous in trying to provide
accurate testimony, I have some concerns about her recollection of the events she described. For
example, she testified that she thought her meeting with Lawrence took place “around the end of
April, beginning of May” 2012,” but she also testified that she believed (but was not certain) that
the meeting occurred before Katie Massey’s termination. Respondent discharged Massey on 10
April 19, 2012, so if Ballard’s meeting with Lawrence indeed had been before that event, it could
not have taken place “around the end of April, beginning of May.”
Ballard’s testimony came about a year after the event she described, so it is not surprising
that there might be some uncertainty as to the date. In these circumstances, an error as to date 15
would not necessarily signify that the rest of her testimony was doubtful. However, I am more
concerned about the rather vague nature of her testimony, which does not give a clear sense of
what actually was said.
For example, Ballard’s testimony does not reveal how the meeting started or how the 20
subject of the union campaign arose. There may have been some other purpose for the meeting,
in which case the topic might have arisen incidentally. On the other hand, Lawrence might have
called Ballard into office solely for the purpose of questioning her about the union organizing
drive. These circumstances, considered together with others, affect whether the alleged
interrogation was sufficiently coercive to violate Section 8(a)(1) of the Act. See, e.g. Rossmore 25
House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Union Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985). However, Ballard’s testimony sheds no light.
If Lawrence had indeed asked Ballard about the union organizing drive or the circulation
of the petition, he would have had to ask a question specific enough to communicate to Ballard 30
the subject of the conversation. However, the words which Ballard attributed to Lawrence—”Is
everything okay?”—would not have sufficed.
Ballard testified that, at first, Lawrence “was kind of hesitant” before asking “Is
everything okay?” However, it would be too great a leap simply to infer that Lawrence was 35
about to raise the subject of the union organizing campaign but was reluctant to do so. For
example, Lawrence might have observed Ballard’s work as a server and have had concerns about
her pregnancy’s effect on that work or vice versa. (Ballard’s testimony placed this meeting with
Lawrence in roughly the same time period as her baby shower.) Lawrence might have been just
as reticent about raising a pregnancy-related issue as about asking a question concerning a union 40
campaign.
(It should be stressed that I am not here suggesting that Lawrence asked “is everything
okay” to inquire about Ballard’s ability to work. Such conjecture would be quite speculative, to
say the least. My point simply is that neither the hesitancy nor the words which Ballard 45
attributed to Lawrence would have informed her that the subject he wanted to discuss was the
JD(ATL)–26–13
14
union organizing drive. If he raised this subject, he necessarily would have used more direct and
unambiguous language, yet Ballard’s testimony gives no clue as to what this language might
have been. This vagueness causes some concern about the reliability of Ballard’s recollection,
particularly considering that a year had elapsed between the conversation and the testimony.)
5
Rather than quoting the words Lawrence spoke, Ballard’s testimony had more the flavor
of being about the conversation in general. For example, the following sentence did not allay my
concern that, after a year, the testimony did not reflect a recollection of the actual words so much
as the witness’ reconstruction of what she thought must have been said: “And I acknowledged
what he was talking about, and I was like, ‘Yes, I did sign that paper.’”10
The actual language used is important because not every reference to union or protected
activity violates the Act. Only those statements of an employer which interfere with, restrain, or
coerce employees in the exercise of Section 7 rights violate Section 8(a)(1). Here, complaint
paragraph 9(a) alleges an unlawful interrogation. Under Rossmore House, above. the Board 15
determines whether a supervisor’s question is unlawful by considering whether, under all the
circumstances, the question reasonably tended to restrain, coerce, or interfere with those rights.
See Donaldson Bros. Ready Mix, Inc., 341 NLRB No. 124 (2004); Mediplex of Danbury, 314
NLRB 470, 472 (1994).
20
Based on my observations of the witnesses and my concerns about the generality of
Ballard’s testimony, I conclude that Lawrence’s testimony is more reliable. Crediting his denial,
I find that he did not ask Ballard whether she had signed the petition.
However, Lawrence did not deny that he and Ballard had discussed the union organizing 25
drive, and he did not deny telling Ballard “if anything else happens or you have any more
information” to tell him. In this instance, Ballard’s testimony did quote specific words, which
Lawrence did not specifically deny. Crediting that testimony, I find that Lawrence did ask her to
tell him if anything else happened or if she had any more information concerning the
unionization effort.30
Although asking an employee about union activity which already has taken place clearly
constitutes interrogation, the lawfulness of which is evaluated under the Rossmore House line of
precedents. Asking an employee to report back in the future about union activity which has not
yet happened interferes with the exercise of Section 7 rights in a different way. Paragraph 9(d) 35
does not allege an unlawful interrogation but rather an instruction to report on the union
activities of other employees. Therefore, I do not evaluate this allegation under the Rossmore
House framework.
The coercive effect of asking an employee to report on the union activities of other 40
employees almost always is sufficient to violate Section 8(a)(1) of the Act. The Board does
recognize an exception when an employer makes clear that it is only asking to be informed of
abusive acts, such as intimidation, which lie outside the Act’s protection. Compare First Student,
Inc., 341 NLRB No. 19 (2004) and West Michigan Plumbing & Heating, Inc., 333 NLRB No. 61
(2001). However, this exception is not applicable here. Lawrence did not simply ask to be told 45
of any instance of intimidation and his words would not reasonable be understood as a request
JD(ATL)–26–13
15
only to be informed about such nonprotected conduct.
Accordingly, I conclude that Respondent interfered with employees’ Section 7 rights
when its manager and agent, Will Lawrence, asked an employee to keep him informed about
developments in the union organizing drive. Therefore, I must consider Respondent’s defense 5
that the allegation is untimely.
Section 10(b) of the Act provides that “no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the filing of the charge with the Board.”
Notwithstanding the literal language of Section 10(b), the Board does not absolutely bar 10
complaint allegations that are based on charges filed outside the 6-month 10(b) period. The
Board has stated that “the timely filing of a charge tolls the time limitation of Section 10(b) as to
matters subsequently alleged in an amended charge which are similar to, and arise out of the
same course of conduct, as those alleged in the timely filed charge. Amended charges containing
such allegations, if filed outside the 6-month 10(b) period, are deemed, for 10(b) purposes, to 15
relate back to the original charge.” WGE Federal Credit Union, 346 NLRB No. 87 (2006).
In determining whether an amended charge relates back to an earlier charge for 10(b)
purposes, the Board applies the three-prong “closely related” test set forth in Redd-I, Inc., 290
NLRB 1115, 1118 (1988). . . The Board considers20
(1) whether the otherwise untimely allegations of the amended charge involve
the same legal theory as the allegations in the timely charge;
(2) whether the otherwise untimely allegations of the amended charge arise 25
from the same factual situation or sequence of events as the allegations in
the timely charge; and
(3) whether a respondent would raise the same or similar defenses to both the
untimely and timely charge allegations.30
Here, the new allegation involves a statement closely related to one which already had
been alleged to violate the same section of the Act. Thus, complaint paragraph 9(a) alleges that
Respondent, by Will Lawrence, interrogated employees concerning their union activities and the
union activities of other employees. The newly-added complaint paragraph 9(d) alleges that this 35
same supervisor instructed an employee to report on the union activities of other employees. The
complaint further alleges both actions to interfere with, restrain, and coerce employees in
violation of Section 8(a)(1) of the Act. It may be argued that the legal theory is slightly different
for each of the two allegations, but certainly not by much. The first Redd-I factor clearly favors
a finding that the two allegations are closely related.40
So does the second Redd-I factor. Both complaint paragraph 9(a) and 9(d) allege that the
same supervisor, Lawrence, made statements to the same employee during the same meeting.
Moreover, the Respondent would raise the same or similar defenses to both statements. 45
Therefore, I conclude that the new allegation, set forth in complaint paragraph 9(d), is closely
JD(ATL)–26–13
16
related to the allegation described in complaint paragraph 9(a) and is not barred by Section 10(b)
of the Act.
Accordingly, I recommend that the Board find the Respondent violated Section 8(a)(1) of
the Act when its supervisor and agent, Will Lawrence, asked an employee to keep him informed 5
about the union organizing campaign.
Complaint Paragraph 8(c)
Complaint paragraph 8(c) alleges that Respondent, by Manager Keith Means, in about 10
May 2012, threatened employees with discharge because of their union activities. Respondent
has denied this allegation.
To support this allegation, the General Counsel elicited testimony from Autumn Ballew
that while in the kitchen sometime in May 2012, she had a brief conversation with Kitchen
Manager Keith Means. According to Ballew, the conversation was “really quiet” because Means 15
was whispering. She further testified:
Q. And what was said in this conversation and who spoke?
A. Keith means told me that I needed to watch my back because they were
looking to fire me, and I asked him why, and he said that he overheard a 20
conversation in the kitchen between Will Lawrence and the manager.
Q. Was there anything else to this discussion? Was that it?
A. That was it
Q. Okay.
A. that I can recall now.25
When Means took the witness stand, he explicitly denied having such a conversation with
Ballew and making the statement which Ballew attributed to him. Based on my observations of
the witnesses, I conclude that Means’ testimony is more reliable and credit his denials.
30
Although I find that Means did not tell Ballew that she should watch her back because
they were looking to fire her, even if Means had made such a statement, it would not be
sufficient to prove the allegations in complaint paragraph 8(c) and would not violate the Act.
Complaint paragraph 8(c) alleges that Respondent, through Means, threatened employees with
discharge for their union activities. Ballew’s testimony does not indicate that Means said 35
anything at all about union or other protected activities.
Moreover, Ballew’s testimony does not suggest that the statement she attributed to Means
arose in the context of a conversation about union or protected activities. Other evidence,
discussed below, indicates that Ballew did not attend to customers and had performance 40
problems which led to her discharge. A person who heard the words which Ballew attributed to
Means would not reasonably understand them to refer to union or protected activities, a subject
not mentioned.
In sum, the pleadings and the proof differ significantly. The complaint alleges a threat of 45
discharge related to union activities but Ballew’s testimony does not indicate this subject ever
JD(ATL)–26–13
17
arose during the conversation. In any event, I do not credit that testimony. Therefore, I
recommend that the Board dismiss the unfair labor practice allegations predicated on the conduct
alleged in complaint paragraph 8(c).
Complaint Paragraph 8(d)5
During the hearing, the General Counsel amended the complaint to add a paragraph 8(d),
alleging that sometime in July 2012, Respondent, by Means, threatened employees with
discharge for their union activities. Respondent denied the allegation and also raised a 10(b)
defense.10
Autumn Ballew testified that sometime in July 2012, she had a conversation with Kitchen
Manager Means. She said it took place near the computer terminal in Respondent’s kitchen, with
no one else present. Ballew further testified as follows:
15
Q. By the way, did you approach him? Did he approach you? How did it take
place?
A. I’m not sure, but he had to stay in the kitchen, so I had to come into the
kitchen, but I don’t know exactly what the situation was to start the
conversation. 20
Q. Okay.
A. But he did say, he said, “Don’t look at me. Just listen.” And he goes,
talking to me, and he said that—he said, “If you go outside to smoke with
that server, Will told me that he was going to fire you.”
Q. Give me that again. Speak up. 25
A. He told me, he said, “Don’t look at me. Just listen.” And he told me that if
I went outside to smoke with the server, that I won’t—that Will Lawrence
is going to fire me.
Q. Do you know what he was referring to?
A. Yes, I do. 30
Q. What was that?
A. Just shortly after this conversation, a server came up to the bar while I was
waiting on customers, and she looked at me really funny and she said,
“Will told me to ask you to go outside and smoke so he could fire you.”
Q. Do you know this server’s name?35
A. I do not.
Q. What did she look like?
A. Short, real blonde hair. She didn’t work there very long. She had just
started.
Q. Now, in relation to the conversation with Keith Means, when was that? 40
Was that the same day or
A. The same day shortly after the conversation. Thirty minutes or so.
Means specifically denied such a conversation. Based on my observations of the
witnesses, I credit Means’ denial and find that he did not make the statement which Ballew 45
attributed to him.
JD(ATL)–26–13
18
Ballew’s story requires the listener to accept some melodramatic elements of the sort
familiar on television but not in real life, namely, that a supervisor said “don’t look at me, just
listen” and that a server she did not know then gave her a strange look followed by a strange
message hinting at a conspiracy to have Ballew fired for violating a smoking rule.5
Sometimes, an implausible story indeed proves to be true, but that happens when other
parts of the record reveal a reasonable explanation for the events and when there is some other
corroborating testimony or evidence not present here. The record does not corroborate Ballew’s
testimony or provide predicate facts which would put the described events in a believable 10
context. The notion that management would have another employee deliberately encourage
Ballew to break a rule to set her up for discharge simply doesn’t fit the evidence.
Manager Lawrence explicitly denied any scheme to have Ballew discharged and credibly
testified that he never indicated to anyone that he was trying to have Ballew terminated because 15
of smoking. However, he did have a conversation with Manager Means about Ballew smoking,
and it would appear that this conversation may have been the melody which gave rise to Ballew’s
fanciful riff.
It is important to stress that Respondent has a very strong no-smoking policy. Lawrence 20
described how an unfortunate event led to the promulgation of the rule:
Q. Can you tell us why it was prohibited?
A. Smoking is prohibited because a hourly employee put a cigarette out in
one of the trash cans behind the building, which caused a fire and the 25
flames were, you know, 12, 15 feet in the air, and if the trash can would
have been another foot closer to the restaurant, it would have caught the
restaurant on fire. So the fire department had to come out, put out the
flames, and it was pretty bad. So we definitely take that seriously.
30
One evening, as Lawrence was about to leave for the night, a bartender approached him
and reported that Ballew had left multiple times during shifts to go smoke, which was strictly
prohibited. Lawrence, realizing that Kitchen Manager Means would be the only remaining
manager on duty, decided to speak to him. “I just told him,” Lawrence testified, “I said, you
know, keep an eye on Autumn. She’s been, you know, leaving to go smoke. If you see anybody 35
smoking, you know, tell them to stop and then just, you know, write me a note in the manager’s
log or, you know, document it somehow and let us know who it was and what they were doing.”
Ballew may well have learned somehow, perhaps even from Means himself, that
Lawrence wanted Means to make a note of anyone who was smoking. However, crediting 40
Means, I find that he did not say the words which Ballew attributed to him. Indeed, he would
have felt no need to try to conceal the conversation by saying “don’t look at me, just listen,”
because Lawrence had left and Means was the highest ranking supervisor on duty. From whom
would he be trying to hide the fact that he spoke with the bartender?
45
JD(ATL)–26–13
19
Another part of Ballew’s testimony, discussed below, also leads me to suspect that she
processed information in a quirky way vulnerable to misperception. Her testimony about the
reasons Manager Walker gave for her discharge omitted a serious matter—a customer’s
complaint that Ballew neglected customers and left her post to text on her cellphone—but did
mention receiving an oral warning for being 3 minutes late.5
However, even if Ballew fancied herself the central figure around whom intrigue swirled,
rather than an employee who was warned not to go outside and smoke, the story she told did not
implicate Section 7 rights. The words she attributed to Means did not mention the Union or
protected activities, and neither did the words she attributed to the server. Moreover, her 10
testimony did not indicate that there was any mention of union activities or that she had recently
engaged in any union activities. Nothing about the context would associate the words with the
Union or protected activities.
It concerns me the General Counsel alleges that Means threatened to discharge 15
employees for union activities when the words attributed to Means made no reference to either a
union or union activities and there was no context which would lead a listener reasonably to
believe he was talking about union activities. Significantly, this could not be an instance in
which a witness’s pretrial affidavit claimed that a supervisor did mention union activities,
resulting in a complaint allegation, but then the witness changed her testimony at trial. Instead, 20
the General Counsel amended the complaint during the hearing to add the allegation.
My concern is about fairness, not about whether the allegation meets the notice pleading
requirements. It is about a commonsense notion of truth-in-labeling. A can marked “beans”
should have at least one bean in it somewhere. Likewise, when the complaint labels a 25
supervisor’s remark a “threat to discharge employees for union activities,” the remark should
either have the word “union” in it somewhere or at least include a reasonably recognizable
reference to union activities.
No evidence, either credited or uncredited, establishes that Means threatened employees 30
with discharge because of their union activities. Therefore, I recommend that the Board dismiss
the unfair labor practice allegations predicated on complaint paragraph 8(d).
Complaint Paragraph 9(b)
35
Complaint paragraph 9(b) alleges that about May 7, 2012, at the Employer’s facility,
threatened employees with unspecified reprisals because they engaged in forming and assisting a
union. The Respondent denies this allegation.
In late April 2012, notwithstanding that he had been served with the “no trespass” letter, 40
Kevin Ballew again entered the restaurant, where he left an envelope. The record doesn’t
disclose the contents of the envelope or even that it ever was opened.
Respondent’s management reported the matter to police, who later arrested Ballew. The
record indicates that a South Carolina state court later found him guilty of violating a criminal 45
trespass statute.
JD(ATL)–26–13
20
According to Autumn Ballew, on the day after Kevin Ballew’s arrest, she had a
conversation with Manager Lawrence. She said this conversation took place in the restaurant’s
office, and no one else was present.
5
Ballew testified that Lawrence told her that Kevin Ballew’s arrest “serves him right” and
that he had told Kevin Ballew that the petition was going to cause a lot of trouble, adding that it
was going to cause her a lot of trouble down the road. Ballew said that she protested that it was
her right to sign the petition and that it should not be held against her, and that Lawrence replied
“Well, you signed it. It will be held against you.”10
Lawrence denied these allegations. As explained above, my observations of the
witnesses lead me to place greater trust in the accuracy of Lawrence’s testimony. Crediting his
denial, I find that he did not make the statements which Ballew attributed to him.
15
Therefore, I recommend that the Board dismiss the unfair labor practice allegations
predicated on complaint paragraph 9(b).
Complaint Paragraph 9(c)
20
Complaint paragraph 9(c) alleges that about June 18, 2012, at the Employer’s facility,
Respondent, by Will Lawrence, impliedly threatened employees with discharge because they
engaged in forming and assisting a union. The General Counsel’s brief describes this allegation
as follows:
25
In or around June, Lawrence also impliedly threatened A. Ballew with discharge.
In this connection, she testified that after she returned from vacation in June, she
approached Lawrence about getting her work shifts back. (TR 156) She asked
Lawrence why she was scheduled for only one shift. (TR 156) He told her it was
because she had been on vacation. (TR 156) In the past, she had never lost shifts 30
after vacation, so A. Ballew asked Lawrence why he was doing this to her. (TR
156) Lawrence simply responded, “Well, why don’t you just quit?” (TR 156)
The General Counsel’s brief accurately summarized Autumn Ballew’s testimony.
However, it does not explain how the statement attributed to Lawrence—that Ballew had been 35
assigned fewer shifts because she had been on vacation—could be even an implied threat of
retaliation for union or protected activity. Although Ballew claimed that Lawrence asked her
why she didn’t just quit, that question also makes no reference to union or protected activities.
An employee hearing the words attributed to Lawrence would not reasonably understand them to
relate to union or protected activities.40
Under some circumstances, when a supervisor and employee are engaged in a
conversation which makes some reference to union activity or has some obvious connection with
union activity, a “why don’t you just quit” remark might violate Section 8(a)(1). The Board has
consistently found violative employer statements that a union supporter who is unhappy should 45
seek work elsewhere. Such statements suggest that union support or dissatisfaction is
JD(ATL)–26–13
21
incompatible with continued employment. See, e.g., El Paso Electric Co., 350 NLRB No. 14
(2007); Paper Mart, 319 NLRB 9 (1995). However, the “just quit” comment attributed to
Lawrence does not communicate any such message. According to Ballew, Lawrence made the
remark during a conversation about her work schedule. As stated above, nothing about the
conversation Ballew described constituted a reference to union or protected activities.5
Lawrence denied making these remarks and, crediting his testimony, I find that he did
not. I recommend that the Board dismiss the unfair labor practice allegations predicated on
complaint paragraph 9(c).
10
Finally, the significant difference between the allegation pleaded in the complaint and the
evidence the government offered to satisfy its burden of proof again troubles my sense of
fairness. When the testimony and other evidence makes no reference, either explicit or implied,
to a union or union activity, is there any justification for alleging that a respondent threatened
employees with discharge for forming and assisting a union?15
Complaint Paragraphs 10(a), (b), and (c)
Paragraph 10 of the complaint and its three subparagraphs concern work rules published
in Respondent’s employee manual. Respondent’s answer admits that complaint paragraphs 10(a) 20
and (c) accurately set forth the respective rules. It denies the accuracy of complaint paragraph
10(b). A comparison of this allegation with the evidence leads me to conclude that the complaint
allegation is verbatim except for the inclusion of the word “other” between the words “to any”
and “unauthorized person or party.” Based on the admissions in Respondent’s answer and on the
Respondent’s employee handbook, which is in evidence, I find that at all material times, 25
Respondent maintained in effect work rules which included the following prohibitions:
[Rule 4]
Insubordination to a manager or lack of respect and cooperation with fellow
employees or guests. This includes displaying a negative attitude that is 30
disruptive to other staff or has a negative impact on guests.
[Rule 18]
Unauthorized dispersal of sensitive Company operating materials or information
to any unauthorized person or party. This includes but is not limited to policies, 35
procedures, financial information, manuals, or any other information contained in
Company records.
[Rule 24]
Any other action or activity which the Company believes represents an actual or 40
potential threat to the smooth operation, goodwill, or profitability of its business.
The Board has established a framework for evaluating whether a work rule reasonably
would tend to chill employees in the exercise of Section 7 rights and thereby violate Section
8(a)(1) of the Act. A work rule which explicitly restricts the exercise of such rights is unlawful 45
on its face. See Lutheran Heritage Village Livonia, 343 NLRB 646, 646 (2004). If the rule does
JD(ATL)–26–13
22
not include such an explicit limitation, then, to prove its illegality, the government must establish
one of following: (1) Employees reasonably would understand the rule to prohibit Section 7
activity; (2) the employer promulgated the rule in response to union activity; or (3) the rule has
been applied to restrict the exercise of Section 7 rights.
5
Here, the government does not argue that the work rules meet either the second or third
criteria, but instead contends only that employees reasonably would understand the rules to limit
their right to engage in activities the Act protects. The General Counsel’s brief states, in part, as
follows:
10
In the instant case, it is not alleged that the work rules in issue were
promulgated in response to union activity, nor is it alleged that the work rules
explicitly reference Section 7 activity. However, with respect to work rules 4 and
24, Respondent’s broad prohibitions against displaying a negative attitude that is
disruptive to other staff or has a negative impact on guests and actions which 15
threaten smooth operation, clearly encompass employees’ concerted
communications or conduct protesting terms and conditions of employment. In
finding language similar to work rules 4 and 24 to be overly broad, the Board, in
adopting the administrative law judge’s analysis in University Medical Center,
335 NLRB 1318, 1321 (2001), stated that concerted employee protest of 20
supervisory activity and employee solicitation of union support from other
employees are protected activities under the Act. The Board also found that the
employer’s prohibition against all disrespectful conduct toward others could
reasonably be construed to prohibit concerted employee protests or other
protected activities. Id. at 1322. Similarly, in Ridgeview Industries,Inc., 353 25
NLRB 1096 (2009), the Board found the promulgation, maintenance, and
enforcement of rules prohibiting employees from engaging in behavior designed
to create discord or lack of harmony to be overly broad and, thus, violative of
Section 8(a)(1) of the Act. However, the Board distinguishes work rules
addressing conduct that is reasonably associated with actions that fall outside the 30
Act’s protection such as conduct that is malicious, abusive, or unlawful. See
Lutheran Heritage Village, supra.; Livonia, supra.
With respect to Rule 18, the General Counsel cites Costco Wholesale Corp., 358 NLRB
No. 106 slip op. at 1 (2012) and University Medical Center, above, for the proposition that 35
employees could reasonably understand the language, forbidding “unauthorized dispersal of
sensitive Company operating materials or information,” to prevent them from disclosing or
discussing their wages or other terms and conditions of employment.
Disagreeing, the Respondent cites other authority to support its argument that employees 40
would not reasonably believe the rules applied to activities protected by the Act. See Lutheran
Heritage Village—Livonia, above; Tradesman International, 338 NLRB 460 (2004); Lafayette
Park Hotel, 326 NLRB 824 (1998).
JD(ATL)–26–13
23
Before discussing the case law, clarity may be served by making some observations about
the cases cited in the government’s brief. I do not rely on Ridgeview Industries, Inc., 353 NLRB
1096 (2009), because it is one of the decisions affected by the Supreme Court’s holding in New
Process Steel, L.P. v. NLRB, ___ U.S. ___, 130 S.Ct. 2635 (2010).
5
Additionally, although the General Counsel’s brief cited University Medical Center, 335
NLRB 1318, 1321 (2001), to support a finding that Respondent’s work rules violated the Act, the
brief did not mention that the Court of Appeals for the District of Columbia Circuit had denied
enforcement of this portion of the Board’s decision. See University Medical Center v. NLRB,
335 F.3d 1079, 1088–1089 (D.C. Cir. 2003). The court of appeals decision is especially 10
significant because of its apparent influence on subsequent Board decisions, notably Lutheran
Heritage Village—Livonia, above, which the General Counsel’s brief did cite, and which will be
discussed below.
The University Medical Center case remains instructive even though the court of appeals 15
disagreed with its work rule analysis and even though the Board’s later precedents responded to
the Court’s concerns. The University Medical Center decision demonstrates that two work rules
which superficially appear quite similar can differ in their effects and their legality. The decision
also shows how the Board has distinguished two rules which appear to be fraternal twins, if not
identical, a lesson which will prove useful in the discussion below.20
In University Medical Center, the Board distinguished the rule it was examining - and
ultimately found violative—from a rather similar (but not identical) rule which had passed
muster in Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999).
Here is the language the Board found unlawful:25
[Rule] 1. Insubordination, refusing to follow directions, obey legitimate requests
or orders, or other disrespectful conduct towards a service integrator, service
coordinator, or other individual;
30
* * *
[Rule] 8. Release or disclosure of confidential information concerning patients or
employees.
35
The Board majority stated that it was applying the principle it articulated in Lafayette
Park Hotel, that the appropriate inquiry is whether the rules would reasonably tend to chill
employees in the exercise of their Section 7 rights. However, the Board concluded that this rule
did chill the exercise of such rights in a way the corresponding rule in Lafayette Park Hotel had
not.40
The rule in Lafayette Park Hotel had prohibited “Being uncooperative with supervisors,
employees, guests and/or regulatory agencies or otherwise engaging in conduct that does not
support the Lafayette Park Hotel’s goals and objectives.” (Italics added) However, the rule in
University Medical Center did not make reference to the employer’s “goals and objectives.” The 45
Board majority considered this difference distinctive:
JD(ATL)–26–13
24
In Lafayette Park, the majority, focusing on the “goals and objectives” language,
concluded that the language in question addressed legitimate business concerns
and contained no ambiguity. The rule in this case, however, included no such
limiting language which removes its ambiguity and limits its broad scope.5
335 NLRB at 1321.
Certainly, the District of Columbia Circuit rejected the Board’s conclusion that the
language in question violated the Act, and the Board cited the Court’s opinion and followed it in 10
Lutheran Heritage Village—Livonia, above. However, the idea that limiting language in a rule
can affect employees’ reasonable understanding of it flows logically from the well-established
principle that the Board must “must refrain from reading particular phrases in isolation.”
Lutheran Heritage Village—Livonia, above, 343 NLRB at 646. Thus, language in a rule which
relates a prohibition to a specific legitimate business purpose may well affect how employees 15
reasonably understand the scope of the rule.
Indeed, where work rules appear together in a publication, such as Respondent’s
employee handbook, employees reasonably would read the individual rules as part of the whole.
If one of the rules articulated goals and objectives, a reader reasonably would conclude—absent 20
some indication to the contrary—that such a statement of purpose informed the rules as a whole
and suggested the contours of their application. Such a statement of goals and objectives could,
as the Board explained in University Medical Center, amount to “limiting language” which
prevented employees from concluding that an unclear rule restricted the exercise of their Section
7 rights.25
The work rule described in complaint paragraph 10(c) and identified in the manual as
Rule 24 refers to actual or potential threats “to the smooth operation, goodwill, or profitability of
its business.” These words are tantamount to an explanation of goals and objectives and
therefore constitute limiting language. Thus, even under University Medical Center, I would 30
conclude that limiting language made the rule lawful. Clearly, it would be lawful under later
precedent.
The Board’s decision in Lutheran Heritage Medical Village—Livonia does not affect the
principle that limiting language can narrow the scope of a rule so that it does not infringe on the 35
exercise of Section 7 rights. However, this decision does underscore the need for caution in
drawing conclusions based on the absence of limiting language. The Board “must not presume
improper interference with employee rights.” Id., citing Lafayette Park Hotel, 326 NLRB at 825,
827.
40
In Luther Heritage Village—Livonia, the Board affirmed the judge’s findings that some
work rules (which did not resemble those at issue here) violated the Act but concluded that others
(which were similar to those at issue here) did not. Citing the Court’s opinion in University
Medical Center v. NLRB, 335 F.3d 1079, 1088–1089 (D.C. Cir. 2003), the Board held that a
reasonable employee would not read a rule prohibiting “insubordination, refusing to follow 45
directions, obey legitimate requests or orders, or other disrespectful conduct towards a
JD(ATL)–26–13
25
[supervisor] or other individual as proscribing solicitation of union support or concerted
employee protest of supervisory activity because, read as a whole, the rule applied only to
insubordinate activity.” The Board continued as follows:
Where, as here, the rule does not refer to Section 7 activity, we will not conclude 5
that a reasonable employee would read the rule to apply to such activity simply
because the rule could be interpreted that way. To take a different analytical
approach would require the Board to find a violation whenever the rule could
conceivably be read to cover Section 7 activity, even though that reading is
unreasonable. We decline to take that approach.10
343 NLRB at 647 (footnote omitted).
The General Counsel’s brief also cites Claremont Resort & Spa, 344 NLRB 832 (2005), a
case in which the Board further explained and applied the principles it had discussed in Lutheran 15
Heritage Village—Livonia. The respondent in Claremont Resort & Spa had issued a work rule
stating, “Negative conversations about associates [employees] and/or managers are in violation
of our Standards of Conduct that may result in disciplinary action.”
The Board found that this prohibition “would reasonably be construed by employees to 20
bar them from discussing with their coworkers complaints about their managers that affect
working conditions, thereby causing employees to refrain from engaging in protected activities.”
The General Counsel’s brief equates the rule’s unlawful prohibition of “negative
conversations” with the Respondent’s prohibition against “displaying a negative attitude that is 25
disruptive to other staff or has a negative impact on guests.” However, the two rules can be and
should be distinguished.
Prohibiting “conversation” cuts to the very essence of activity which the Act protects
because all other actions contemplated by the statutory scheme flow out of employees’30
discussions about their wages, hours, and other terms and conditions of employment. There
could be no union organizing effort at all without such employee conversations. Typically, a
negative emotion—dissatisfaction with wages or working conditions, stimulates such
discussions. A typical employee reasonably would understand the prohibition of “negative
conversations” to ban discussion of work-related complaints and, therefore, to restrict the 35
exercise of Section 7 rights.
By comparison, Respondent’s rule, forbidding “displaying a negative attitude” does not
limit employees’ rights to have conversations about any subject. Moreover, the rest of the rule
includes the kind of “limiting language” which the Board discussed in its University Medical 40
Center decision. Specifically, the Respondent’s rule does not ban all displays of negative attitude
but only a display “that is disruptive to staff or has a negative impact on guests.”
The limiting language thus links the scope of the prohibition to Respondent’s legitimate
business concerns. Thus, just as the Board, in University Medical Center, drew a distinction 45
between the work rule in that case and the rule in Lafayette Park Hotel, the violative work rule in
JD(ATL)–26–13
26
Claremont Resort & Spa should be distinguished from the Respondent’s rules in the present case.
A more recent case cited by the General Counsel, Costco Wholesale Corp., above, did
involve work rules which described particular activities which enjoy the Act’s protection.
Indeed, the rules even forbade the sharing of employees’ names, addresses, and telephone 5
numbers. However, the rules under examination in the present case neither refer to specific
Section 7 activities nor prohibit any.
In sum, based on Lutheran Heritage Village—Livonia, I conclude that employees would
not reasonably understand the rule to prohibit Section 7 activity. Further, the record does not 10
indicate and the government does not contend that Respondent promulgated the rules in response
to protected activity. I find that Respondent did not.
There is a third question which must be answered: Has Respondent applied any of the
rules to restrict the exercise of Section 7 rights. The government so asserts. The General 15
Counsel’s brief states, in part:
As will be discussed later in this Brief, rule 4 was not only maintained, but, also
enforced to restrict the exercise of employees’ Section 7 rights when Respondent
discharged employee Autumn Ballew citing, among other things, her violation of 20
this work rule.
Among other things, Rule 4, quoted above, prohibits a “lack of respect” which “includes
displaying a negative attitude that is disruptive to other staff or has a negative impact on guests.”
Indeed, as will be discussed further below, Respondent did discharge Autumn Ballew for reasons 25
which included “displaying a negative attitude” which was disruptive and had a “negative impact
on guests.” In Respondent’s restaurant, which does business as the “Copper River Grill,” within
the hearing range of guests, Ballew loudly announced “Fuck Copper River!”
This fit of pique wasn’t part of the service that guests reasonably would expect. It also 30
was not activity protected by the Act. Credible evidence does not establish that Respondent ever
applied the work rules to restrict Section 7 activity and I conclude that it did not. In sum, I
conclude that the government has not established that the work rule described in complaint
paragraph 10(a) chills the exercise of employees’ Section 7 rights, and therefore further conclude
that it does not violate Section 8(a)(1) of the Act.35
The work rule described in complaint paragraph 10(b) prohibits the “unauthorized
dispersal of sensitive Company operating materials or information. . . This includes but is not
limited to policies, procedures, financial information, manuals, or any other information
contained in Company records.”40
The rule’s reference to “financial information” might be construed to include wage and
benefit rates, which employees have the Section 7 right to discuss. However, the rule itself does
not refer to wage or benefit rate and its prohibition is limited to the dispersal of “sensitive
Company” materials and information. The rule does not suggest that information appearing on 45
an employee’s pay stub would be such “sensitive Company” information.
JD(ATL)–26–13
27
I conclude that a person reading the rule in its total context would not understand it to
prohibit employees from discussing and disclosing information about their wages, hours, and
working conditions. Therefore, I further conclude that it does not violate Section 8(a)(1) of the
Act.5
For the reasons discussed above, I also conclude that the rule described in complaint
paragraph 10(c) does not have a chilling effect on employees exercise of Section 7 rights. I
further conclude that it does not violation Section 8(a)(1) of the Act.
10
Therefore, I recommend that the Board dismiss the unfair labor practice allegations
which are predicated on the conduct alleged in complaint paragraphs 10(a), (b) and (c).
Complaint Paragraphs 11(a) and 11(b)
15
Complaint paragraph 11(a) alleges that about March 2012, Respondent, by Will
Lawrence, by oral announcement, promulgated and since then has maintained a work rule
prohibiting employees from engaging in solicitation at any time at its facility. Complaint
paragraph 11(b) alleges that Respondent promulgated and maintained this rule to discourage its
employees from forming or assisting a union or engaging in other concerted activities. 20
Respondent denies these allegations and also raises a 10(b) timeliness defense.
Although complaint paragraph 10(a) alleges the promulgation of a no-solicitation rule,
that description may cause confusion. No evidence, not even that presented by the government,
suggests that Manager Lawrence announced a work rule, as such. The General Counsel’s brief 25
described the allegations as follows:
In March, Supervisor Lawrence orally announced and promulgated an unlawful
and overly broad work rule when he told Massey and A. Ballew that it was illegal
to solicit a union petition at the restaurant. (TR 100, 145) The promulgation of 30
such a rule was clearly overly broad and thus presumptively invalid because it
stated an absolute prohibition of employee solicitation at all times and places.
Thus, the Judge should find that the oral promulgation of a no solicitation rule by
Lawrence violates Section 8(a)(1) of the Act. Mesa Vista Hospital, 280 NLRB
298, 299 (1986); Our Way, Inc., 268 NLRB 394, 394,395 (1983).35
From the General Counsel’s brief, it is clear that the government is alleging (1) that
Lawrence told employees “it was illegal to solicit a union petition at the restaurant” and (2) that
this statement amounted to a rule prohibiting employees from soliciting employees to sign a
petition supporting the Union.40
Allegations related to complaint paragraph 8(a) also attribute to Lawrence a statement
that circulating a union petition in a restaurant was illegal. For the reasons discussed above, I
have concluded that the testimony offered in support of these allegations is not reliable. Instead,
I have credited Lawrence’s specific denial that he ever made such a statement.45
JD(ATL)–26–13
28
In addition to the testimony discussed above in connection with complaint paragraph
8(a), the record includes testimony which clearly is specific to complaint paragraph 11. The
General Counsel’s direct examination of Katie Massey includes the following:
Q. Now, I want to direct your attention to a period March/April 2012. Again, 5
did you have an incident there or a conversation on the patio involving any
supervisor about the Union?
A. Yes.
Q. All right.
JUDGE LOCKE: What complaint allegations is this that you’re 10
MR. BROWN: This goes to Paragraph 9 pardon me I believe it’s Paragraph 11,
Your Honor.
JUDGE LOCKE: 11. Thank you.
MR. BROWN: I believe it’s Paragraph 11.
Q. BY MR. BROWN: Okay. Now, this was on the patio. Who was present in 15
this conversation? Who was there? Was a group gathered?
A. This day on the patio it was it was during the day between shifts. It was
myself, Kevin Ballew, Autumn Ballew, and another server named Elias
Bolero (ph.).
Q. Okay. 20
A. We were all sitting out at a table on the patio. Kevin was explaining
Kevin Ballew was explaining to Elias Bolero about the Union. We were
trying to get him to sign the petition and to, you know, support what we
were doing, and we had been out there for probably I’m not real sure how
long, but maybe 15, 20 minutes. And Will comes out 25
Q. Will Lawrence?
A. Will Lawrence comes out onto the patio.
Q. Okay.
A. He looks at us, glares us down, and walks back inside. I walked inside,
you know, a few minutes later. 30
Q. Did he say anything while he was out there?
A. Will did not say anything.
Q. Okay. All right.
A. And I walked inside a few minutes later and he told me, you know, that it
was illegal what Kevin was doing, and I informed Will that it was actually 35
illegal that what he that what he himself, Will Lawrence, was doing was
illegal by trying to interfere with this.
Autumn Ballew testified that she, Kevin Ballew and an employee named Elias Balero
were on the restaurant’s patio on one occasion in early April 2012 when Lawrence came outside, 40
saw them and glared. However, her testimony did not extend to the remainder of Massey’s
account, quoted above. Thus, Massey’s testimony concerning what Lawrence told her is
uncorroborated.
JD(ATL)–26–13
29
My observations of the witnesses lead me to resolve credibility conflicts between
Lawrence and Massey by crediting Lawrence, but it also may noted that Massey’s testimony
itself falls short of the government’s claims. Although the General Counsel’s brief asserts that
Lawrence said “that it was illegal to solicit a union petition at the restaurant,” neither the word
“union” nor the word “petition” appears in Massey’s testimony about this matter.5
Moreover, this testimony reasonably does not support an inference that the words Massey
actually attributed to Lawrence—”it was illegal what Kevin was doing”—referred to union or
protected, concerted activity. Nothing in the testimony indicates that Lawrence got close enough
to the four people on the patio, or stayed long enough, to learn that they were discussing a union 10
petition.
Additionally, the words attributed to Lawrence have an obvious meaning unrelated to
union activity. In late February 2012, after Kevin Ballew had caused a disturbance at the
restaurant, the Respondent had served him with a no-trespass letter. Even if Lawrence had said 15
that “it was illegal what Kevin was doing,” those words literally were true and referred to the
crime of trespass.
The record indicates that Lawrence had learned about the union activity by sometime in
May 2012, when he had the conversation with employee Victoria Ballard discussed above in 20
connection with the allegations raised by complaint paragraph 9(d). However, that was well
after the events described in Massey’s testimony here. Credited evidence does not establish that
Lawrence knew anything about a union organizing drive at that time.
The Respondent’s posthearing brief, noting that the Union filed its representation petition 25
in February 2013 and that the Board conducted an election on April 4 and 5, 2013, argues that a
year earlier “there was no such campaign about which any supervisors or employees generally
were aware.” The record is consistent with a conclusion that, if the union organizing drive had
been a snowball growing as it rolled downhill, it would have been quite small and unlikely to
attract much notice in March and April 2012.30
For example, the petition which the government introduced as General Counsel’s Exhibit
6 bears 8 signatures. Of those, one is undated, four are dated in early January 2012, one is
dated March 19, 2012, one is dated March 20, 2012, and the remaining signature is dated July 1,
2012. The gaps in the dates are consistent with periods of inactivity in which the petition did not 35
circulate.
Moreover, this could not have been the showing of interest used to support the
representation petition in Case 10–RC–098046, or at least not all of it. The Regional Director’s
Decision and Direction of Election in that case held that the bargaining unit consisted of about 47 40
employees, the same number sought by the Union. The 30 percent showing of interest necessary
to support the representation petition would have required 15 signatures, almost twice the
number on General Counsel’s Exhibit 6.
JD(ATL)–26–13
30
The testimony of one of Respondent’s employees, called by the General Counsel,
supports a conclusion that there actually were two organizing efforts separated by months of
inactivity. The witness, Zachary Scott Daniel, gave the following testimony on April 22, 2013,
during cross-examination by Respondent:
5
Q. BY MR. FISHER: Mr. Daniel, you referred to a petition.
A. Umhmm.
Q. Did you see this petition?
A. Not the first time. Only the—there was a time in 2012 when I guess the
petition was going around. I never saw it that time. But the most recent 10
one I had I did see.
Q. And that was in January or February of this year?
A. Yes, sir.
The Decision and Direction of Election, dated March 7, 2013, stated that the Union “was 15
organized about 14 months ago” and that it “consists of about 15 members, but additional
members are being added.” It also found that the Union was not affiliated with any other labor
organizing, that it had not yet registered with any government agency and that its members “have
ratified parts of its constitution and bylaws, but that too is an ongoing process.”
20
These facts form a picture of a union getting started and picking up momentum slowly,
which would be consistent with it having a low profile, and low visibility, in March and April
2012. This picture is fully consistent with a conclusion that Lawrence was unaware of the union
organizing campaign in April 2012. Based on the credited testimony, I so find.
25
The credited evidence fails to establish that Lawrence ever said that soliciting a union
petition or support for the union in the restaurant was illegal, and I find he did not make such
statements. Therefore, I recommend that the Board dismiss the unfair labor practice allegations
which are related to complaint paragraphs 11(a) and 11(b).
30
Complaint Paragraph 13(a)
Discharge of Katie Massey
Complaint paragraph 13(a) alleges that on about April 19, 2012, Respondent discharged 35
employee Katie Massey. Respondent admits this allegation, but denies that it did so for unlawful
reasons or violated the Act.
Massey first worked for Respondent as a server in 2008 then quit. She testified that
Respondent rehired her in 2010. She then worked for Respondent as a server until her discharge 40
in April 2012.
Respondent states that it discharged Massey for twice violating a work rule commonly
called “ring it before you bring it.” It enforces this rule by having a “key employee” conduct
“drink audits.” For brevity, I will describe this “drink audit” procedure in connection with an 45
evidentiary issue raised by the General Counsel because the two subjects are related.
JD(ATL)–26–13
31
The General Counsel contends that Respondent failed to comply fully with the
government’s subpoena duces tecum and requests that sanctions be imposed for such asserted
noncompliance. Specifically, the government asserts that Respondent failed to produce certain
documents—”audit tickets”—described in the subpoena. The General Counsel argues that I 5
should strike certain evidence, offered by Respondent, which relates to the audit tickets. The
General Counsel also urges that I draw an adverse inference based on Respondent’s failure to
produce the subpoenaed documents.
When the General Counsel raised this matter during the hearing, I denied the request for 10
sanctions, but did so subject to further consideration after I had reviewed the transcript and
exhibits. The government sought such reconsideration in the General Counsel’s posthearing
brief.
Because the procedural issue concerns the Respondent’s failure to produce the 15
subpoenaed “audit tickets,” I will begin by summarizing the relevance of these slips.
Respondent has a strict policy that, when a customer orders a beverage, the server must enter the
billing information into the computer before taking the drink to the customer. The slogan “ring it
before you bring it” helps waiters and waitresses remember the policy. However, because of the
penalty for breaching it, such a reminder may be unnecessary. A server receives a warning for a 20
first violation, but is discharged for the second.
To enforce the rule, Respondent has a “key employee” circulate discreetly among the
tables performing “drink audits.” (The term “key manager” also refers to such an individual.
Notwithstanding the title “manager,” the person is not a statutory supervisor. The Regional 25
Director’s decision and direction of election in Case 10–RC–098046 included such individuals in
the bargaining unit.)
The key employee observes whether the beverages on a certain table correspond to the
information in the computer about the drinks which the customers at that table had ordered. If 30
the beverage on the table appears to be tea or a soft drink but the computer indicates only water,
that discrepancy suggests that the server failed to record the drink order properly.
A manager performing a drink audit begins by checking the computer terminal and then
walks among the tables to make observations. When managers first started doing such audits, 35
they either had to remember what they saw on the computer screen or else jot a note. More
recently, the Respondent began installing a computer printer near each terminal, so that the key
manager can print out an “audit ticket” to use as a memory aid. This “audit ticket” is different
from the bill which the server delivers to the customer at the end of a meal.
40
On about April 19, 2012, Key Manager Courtney Stepp performed such an audit and
detected a discrepancy between the drinks she observed on a customer’s table being served by
Katie Massey and the information in the computer, which indicated only water. She found a
JD(ATL)–26–13
32
similar discrepancy on another table being served by Massey. Stepp testified as follows
concerning the action she took:
Q What, if anything, did you do as a result of this audit?
A I went to print her ticket from the computer, her receipt that she would 5
take to the table, and I stapled it and took it to the manager that was on
duty at the time and told him that she didn’t have her drinks rung in, and
he told me to write a note and leave it for our owner. (Italics added.)
As the italicized words establish, the document which Stepp took to the manager in 10
charge was not an “audit ticket” but rather the receipt—the “bill”—which Massey would deliver
to the customer at the conclusion of the meal. The record does not reveal exactly what happened
to the “audit ticket” which Stepp had carried with her while checking the tables, but no evidence
contradicts Respondent’s assertion that it does not keep such tickets in the course of its business.
15
Routinely conducting drink audits generates many such small slips of paper. Each serves
a useful purpose for perhaps 10 minutes, but after that, there is no obvious need for their
retention. The slips aptly could be called not “business records” but “litter.” It is not surprising
that they would be discarded.
20
Before the hearing, the General Counsel served a subpoena on the Respondent which
sought production of a number of documents, including the audit tickets. In compliance with the
subpoena, the Respondent provided the government with a substantial number of documents, but
stated that it could not furnish the audit tickets because it had not kept them. During Stepp’s
testimony, the General Counsel moved to strike portions of it as a sanction for Respondent’s 25
failure to furnish the audit tickets pursuant to the subpoena. The government also argued that I
should draw an adverse inference based on the failure to produce the subpoenaed documents. I
denied these motions, but indicated that I would give the matter further consideration after
reviewing the transcript and exhibits.
30
As noted above, the General Counsel’s posthearing brief renewed the motions to impose
sanctions and draw an adverse inference. A portion of that brief is quoted below. The name
“Walker” refers to the Respondent’s highest ranking manager at the restaurant:
At hearing, Respondent asserted that it did not maintain the audit tickets as part of 35
its business records. (TR 275)
The evidence reflects that Walker relied on the customer receipts and other related
documents to determine that Massey violated Respondent’s drink policy. (TR
329332) It is, therefore, submitted that the audit tickets showing Massey’s service40
to guests on April 19, as well as Stepp’s alleged note to Walker pertaining to this
matter, are relevant to the Judge’s decision in this case. Accordingly, Counsel for
Acting General Counsel renews his motion to strike all evidence elicited by
Respondent and relied upon as a basis for its determination that Massey violated
its drink policy. In this regard, the Board has long held that Respondent may not 45
use relevant evidence it refused to produce pursuant [to] a properly issued
JD(ATL)–26–13
33
subpoena to prove its case. Bannon Mills, Inc., 146 NLRB 611, 613 at fn. 4
(1964).
My consideration of the General Counsel’s argument begins with the general principle
that a party has a duty to comply with a subpoena seeking unprivileged documents if the 5
subpoena is not revoked and if such records are within the party’s custody or control. This duty
of compliance bars a party from destroying subpoenaed evidence to prevent its use in the
litigation. Similarly, it prohibits the subpoenaed party from claiming falsely that an extant
document does not exist and from simply withholding it unilaterally. Instead, the party must
challenge the subpoena by petition to revoke pursuant to Section 102.31(b) of the Board’s Rules 10
and Regulations, and, where applicable, by timely assertion of privilege. See, e.g., Pioneer
Hotel, Inc. d/b/a Pioneer Hotel & Gambling Hall, 324 NLRB No. 148 (1997).
The Board is entitled to impose a variety of sanctions to deal with subpoena
noncompliance, including permitting the party seeking production to use secondary evidence, 15
precluding the noncomplying party from rebutting that evidence or cross-examining witnesses
about it, and drawing adverse inferences against the noncomplying party. See, e.g., International
Metal Co., 286 NLRB 1106, 1112 fn. 11 (1986) (precluding employer from introducing into
evidence documents it had failed to produce in response to the General Counsel’s subpoenas).
20
As the Board stated in McAllister Towing & Transportation Co., Inc., 341 NLRB No. 48
(2004), its authority to impose such sanctions “flows from its inherent ‘interest [in] maintaining
the integrity of the hearing process.’ NLRB v. C. H. Sprague & Son, Co., 428 F.2d 938, 942 (1st
Cir. 1970); see also Perdue Farms, Inc., Cookin’ Good Division v. NLRB, 144 F.3d 830, 834
(D.C. Cir. 1998) (approving Board’s application of the ‘preclusion rule’ as being necessary to 25
ensure compliance with subpoenas).”
Thus, some form of sanction may be appropriate in response to a deliberate destruction of
evidence or an intentional refusal to honor the subpoena because such willful acts undermine the
integrity of the hearing process. However, I would be quite reluctant to impose a sanction 30
without credible evidence that the party acted with such improper intent. Moreover, when a non-
culpable destruction of a document has made compliance with the subpoena impossible, it
clearly would be inappropriate to penalize the party for failing to do what it cannot.
A sanction serves to redress a party’s misconduct which interferes with the Board’s 35
processes and the cause of justice, and to discourage similar misconduct in the future. In the
absence of misconduct, a sanction neither is warranted nor appropriate. Accordingly, any
decision about the imposition of sanctions must take into account both the party’s intent and its
ability to comply with the subpoena.
40
Although the government’s brief does not explicitly accuse the Respondent of spoliation
of evidence or of a contumacious refusal to turn over subpoenaed records in its possession, the
brief includes language which arguably might imply such a claim. For example, in the passage
quoted above, the General Counsel stated “the Board has long held that Respondent may not use
relevant evidence it refused to produce pursuant a properly issued subpoena to prove its case.”45
JD(ATL)–26–13
34
The brief’s use of the word “refused” rather than “failed” suggests that the General
Counsel is accusing the Respondent of a refusal, an intentional act. However, during the hearing,
the General Counsel explicitly disavowed, on the record, that he was accusing the Respondent of
acting deliberately:
5
MR. BROWN: Your Honor, with all due respect, I am not impugning the integrity
of the Company. I am not saying this matter was willful. I don’t know. But I am
not making that allegation. I’m simply saying that it seems to me under the law, if
it’s subpoenaed, they have an obligation to produce it or to at least explain, you
know, why it was not produced.10
In fact, the Respondent did explain why the audit tickets were not produced: Respondent
does not make a practice of keeping them. This explanation is quite plausible and fully
consistent with the record. Because the General Counsel is not accusing the Respondent of
willful misconduct, and because the evidence certainly would not support such an accusation, I 15
do not believe it appropriate to impose a sanction.
The General Counsel also argues that I should draw an adverse inference from the
Respondent’s failure to furnish the subpoenaed audit tickets. Although drawing an adverse
inference may be characterized as a sanction, it also serves an evidentiary purpose by 20
compensating for an unexplained deficit of documents or absence of a witness in circumstances
which reasonably would create an expectation that the documents would be produced or a
witness would be called. Thus, drawing an adverse inference might be appropriate even in some
circumstances where there is no accusation of misconduct.
25
However, although misconduct is not a prerequisite to drawing an adverse inference,
circumstances must be sufficiently abnormal to justify a departure from the bedrock principle
that facts must be proven by evidence. No such circumstances exist here.
The Act does not require the Respondent to keep audit tickets and the record does not 30
indicate that any law or regulation imposes such an obligation. Moreover, no evidence suggests
that the Respondent has a practice of doing so. Considering the number of drink audits
conducted, it would surprise me more if the Respondent did save such slips, particularly in an era
which relies on computer drives rather than shoe boxes to store information.
35
As quoted above, Stepp testified that when she discovered the discrepancy, she printed
out Massey’s “receipt that she would take to the table” and gave it to the manager. The
Respondent’s computer did preserve this data and a copy of that receipt is in evidence. In these
circumstances, drawing an adverse inference would be unwarranted and I decline to do so.
40
Respondent previously had warned Massey that she should log the drink order in the
computer before bringing the beverage to the customer. On October 22, 2011, which was well
before the formation of the Union or the beginning of the union organizing campaign, Massey
had received a written warning for failure to ring in drinks before serving them. The “Employee
Counseling Report” noted that she and other servers had been “VERBALLY WARNED ABOUT 45
THE CONSEQUENCES OF NOT RINGING IN DRINKS” and then repeated those
JD(ATL)–26–13
35
consequences in capital letters: “IF THIS INSTANCE HAPPENS AGAIN WILL RESULT IN
DISCHARGE.”
Several employee witnesses referred this policy and the record leaves no doubt that
Respondent took it seriously. Employee Daniel testified that management reminded employees 5
of the policy once a week:
Q. Okay. Did Will Lawrence ever give you a reminder, a verbal reminder
after he told you what the policy was?
A. Oh, yes. It was I mean every Friday or Saturday night we would gather 10
together, all the servers, at the beginning of the shift, and that was given.
Massey admits that she violated the policy on the occasions in question. However, the
General Counsel argues that the Respondent’s real reason for discharging Massey was her union
activity.15
My analysis of whether the Respondent violated Section 8(a)(3) and (1) of the Act by
discharging Massey is governed by Wright Line, 251 NLRB 1083, 1089 (1980), enfd. on other
grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under the Wright Line
test, the General Counsel has the initial burden of establishing that employees’ union activity was 20
a motivating factor in the Respondent’s taking action against them. The General Counsel meets
that burden by proving union activity on the part of employees, employer knowledge of that
activity, and antiunion animus on the part of the employer. See Willamette Industries, 341 NLRB
560, 562 (2004) (citations omitted). If the General Counsel makes this initial showing, the
burden then shifts to the Respondent to prove as an affirmative defense that it would have taken 25
the same action even if the employees had not engaged in protected activity. Id. at 563; Manno
Electric, 321 NLRB 278, 280 fn. 12 (1996). See El Paso Electric Co., above.
The record clearly establishes that Massey engaged in union activity which the Act
protects. However, the credited evidence does not prove that Respondent knew about that 30
protected activity at the time it discharged her. This evidence does indicate that Manager Will
Lawrence had become aware of the union organizing campaign by sometime in May 2012, when
he asked employee Ballard to keep him informed. However, that was after Massey’s discharge.
As discussed above, I find that very little union activity took place during the first months 35
of 2012 and tat Respondent was unaware of it. Certainly, Respondent knew that Kevin Ballew
had come to the restaurant and created a disturbance, but it had no reason to believe that Ballew
had formed a union and was trying to get Respondent’s employees to join it.
My finding that Respondent did not know about Massey’s union activity when it decided 40
to terminate her employment necessarily means that such activity was not a motivating factor in
the discharge decision. Therefore, the General Counsel has failed to make the initial showing
required to shift the burden of proceeding to the Respondent. Accordingly, the Respondent need
not show that it would have discharged Massey in any event, notwithstanding her union activity.
45
JD(ATL)–26–13
36
The General Counsel argues that Respondent’s asserted motivation for terminating
Massey’s employment was pretextual, and that the existence of a pretext constitutes evidence of
unlawful motive. To support the pretext argument, the government asserts that other employees,
notably Michelle Reppe and Jennifer Kennedy, had violated the Respondent’s “ring it before you
bring it” rule twice without being discharged for the second violation.5
The General Counsel adduced testimony from a key employee, Cheniece Porter,
concerning drink audits she conducted. According to Porter, she reported to management on two
separate occasions that Reppe had violated the rule but continued to work for the Respondent
even after the second infraction.10
Similarly, Porter testified that twice, she reported that Kennedy had broken the rule, but
that Kennedy continued to be employed. However, apart from saying that she saw Reppe and
Kennedy at work after their second violations, Porter did not know what discipline those
employees had received.15
Porter’s testimony does not convince me that Respondent treated Massey disparately
because it is unclear that Reppe and Kennedy broke the rule to the same extent. During her drink
audits on April 19, 2012, Stepp observed Massey break the rule not once but twice. At one of the
tables, Stepp counted 6 different glasses filled with either a soft drink or tea, rather than the six 20
glasses of water indicated by the computer. As noted above, Massey already had received an
earlier warning for failing to follow the rule.
As described above, the Wright Line framework imposes an initial evidentiary burden on
the General Counsel, but this burden does not require the government to prove that an employer 25
treated the employee more harshly than it had treated other employees in the same situation.
Rather, Wright Line requires the General Counsel to establish that the employee’s protected
activities were a motivating factor in the employer’s discipline decision. When an employee
who had engaged in union or other protected activities receives harsher punishment than
similarly situated employees who had not, it may be logical to attribute the disparate treatment to 30
the protected activities.
However, drawing such an inference is logical only if the decision maker knew about the
protected activities. Where, as here, the credited evidence does not establish that Respondent
knew about the employee’s union activity when it discharged her, inferring unlawful motivation 35
would involve more than drawing a conclusion from facts in evidence; it would require assuming
a fact not in evidence.
In applying the Wright Line standard, the Board has held that as part of his initial
showing, the General Counsel may offer proof that the employer’s reasons for the personnel 40
decision were pretextual. Pro-Spec Painting, Inc., 339 NLRB No. 115, slip op. at 4 (2003)
(citing National Steel & Shipbuilding Co., 324 NLRB 1114, 1119 fn. 11 (1997)). By
“pretextual,” the Board means a reason which is “either false or not in fact relied upon.” Rood
Trucking Co., 342 NLRB 895 (2004).
45
The evidence clearly establishes that Massey violated the “ring it before you bring it”
JD(ATL)–26–13
37
rule, so the reason given for her discharge cannot be deemed “false” in the sense of untrue. Was
her violation of the rule “not in fact relied upon?” Because Massey did, in fact, break the rule,
the most likely reason for her discharge is the stated one, that she broke the rule. Even were the
evidence sufficient to establish that similarly situated employees had received more lenient
discipline, that disparity only raises the possibility that another reason exists, but it does not 5
establish what that reason might be. Disparate treatment would suggest that a respondent played
favorites but it does not indicate way.
Favoritism can have many causes, most of which do not violate the Act. Assuming for
the sake of analysis that the record is sufficient to establish that Reppe and Kennedy received 10
more favorable treatment, the reason might have nothing at all to do with Massey’s conduct. If
the credited evidence established that Respondent had knowledge of Massey’s union activities,
then logically, there would but reason to suspect that disparate treatment had some relationship to
that knowledge. But here, credited evidence does not establish knowledge
15
The General Counsel’s brief also raises some arguments which go, essentially, to the
“fairness” of the rule. For example, the government argues that Massey was particularly busy on
this occasion and had little time to “ring in” the drink order before taking it to the table.
However, the General Counsel cannot logically argue that because an action appears to be unfair,
it must therefore be evidence of unlawful motive. 20
The General Counsel also argues that Massey eventually went back to the computer and
entered the drink order, so the customer received a bill which included the price of the drinks and
paid it. In this circumstance, the General Counsel contends, “there was no legitimate reason to
discharge her.”25
Essentially, the government is arguing “no harm, no foul.” Accepting that argument
would require me to second guess the wisdom of the rule as written. However, the Act gives me
no authority to substitute my judgment for the Respondent’s or to sit as an arbiter of “fairness” in
some abstract sense.30
The General Counsel’s brief also contends that the restaurant manager “failed to conduct
a full and fair investigation.” Although I do not agree with that conclusion, more fundamentally,
the Act does not require an employer to conduct an investigation before imposing discipline.
35
The General Counsel further argues that the restaurant manager, Josh Walker, displayed
no interest in ascertaining the facts at the time he told Massey she was discharged. The
government’s brief states:
During the termination meeting, when Massey attempted to explain the events 40
from the night before, Walker cut her off, told her he didn’t believe her; and
summarily terminated her. (TR 108) Walker presumably had already concluded
that Massey deliberately sought to cheat the Respondent out of the cost of the
drinks, or that she was trying to get extra tips even though she was not accused of
either infraction. (TR 373374, 376) The April 19 termination document was 45
clearly prepared prior to the meeting. (TR 107108) (GC 7)
JD(ATL)–26–13
38
However, uncontroverted evidence establishes that only one person, Respondent’s chief
executive officer, has authority to discharge an employee. Walker, the restaurant manager, only
brought the news. Nothing about the termination meeting suggests that an unlawful reason was a
motivating factor in the decision to discharge Massey.5
For all these reasons, I recommend that the Board dismiss the allegations that
Respondent’s discharge of Massey violated Section 8(a)(3) and (1) of the Act.
Discharge of Autumn Ballew10
Complaint paragraph 13(a) alleges that Respondent discharged employee Autumn Ballew
on July 17, 2013. Respondent admits that it discharged Ballew, but states that it did so on July
16, 2013, rather than the next day. Respondent denies the related complaint allegations that the
discharge of Ballew violated Section 8(a)(3) and (1) of the Act.15
Ballew began work for Respondent as a hostess in 2007. For the last 2 years of her
employment, she worked as a bartender.
In mid-July 2012, about a week before Ballew’s discharge, a customer complained about 20
her to the hostess on duty. The customer, Nicholas Soria, was a “regular” who came to restaurant
two or three times a week. Soria credibly testified that he told the hostess “that your bartender
keeps disappearing. She’s not serving the customers. She keeps walking away, and I understand
there’s a long walk from the bar to the kitchen area to pick up food, but this was longer than
usual.”25
The hostess with whom Soria spoke, Megan Scherbarth, corroborated his testimony:
He was aggravated as to the service he was receiving. I asked him what had
happened, and he said he was sitting there for a good amount of time and that she, 30
Autumn, was texting on her phone rather than serving the customer, and that he
didn’t expect special treatment but he did expect to be treated as a normal
customer and he didn’t feel like he was. He felt like he was being ignored. He
also asked me to tell my manager this.
35
Several days later, when Soria returned to the restaurant, he spoke with Manager
Lawrence about the matter. According to Soria, he told the manager that Ballew “was
disappearing from the bar area, taking her time serving the drinks and food.”
Lawrence’s testimony about this conversation is consistent with Soria’s. Lawrence also 40
identified a note he had made shortly after speaking with Soria. This note states, in part, as
follows:
On Wednesday 7/11 the bar guest, Nick, was back at the bar. I approached him
and apologized for missing him the other day when he wanted to talk to me. He 45
said it was no big deal he just had a problem. I told him it was a big deal to me
JD(ATL)–26–13
39
and we walked outside on the patio to discuss his problem. He told me that every
time Autumn works he and several of the guests are neglected. He said that she
comes in gets on her cell phone, eats behind the bar and ignores the guests. I
apologized to him for the bad service he had received and thanked him for
bringing it to my attention.5
During this same time period in early July 2012, Ballew was experiencing other work-
related problems. She received a warning for being late to work and a warning for violating a
work rule requiring employees with tattoos to cover them so that they weren’t visible to
customers.10
Another bartender, Rebecca Mahan, testified that after Ballew attended a counseling
session, she returned to the bar and said to some regular customers “Fuck Copper River.” Mahan
further quoted Ballew as saying, in the presence of customers, “I don’t like this place. The
managers are stupid. I don’t know why I have to cover up my tattoo. It’s not offensive.”15
For reasons discussed further below, I conclude that Mahan was a truthful witness and
that her testimony is reliable. Crediting it, I find that Ballew made the comments Mahan
attributed to her.
20
Additionally, it may be noted that the General Counsel has not contended that Ballew
made these remarks in the course of protected activity. If, for example, Ballew had been
discharged because of intemperate exclamations while on a picket line, the lawfulness of the
discipline would need to be analyzed under a framework different from Wright Line. See, for
example, E. W. Grobbel Sons, Inc., 322 NLRB 304 (1996); NLRB v. Burnup & Sims, 379 U.S. 21 25
(1964). However, from all the circumstances, I conclude that Ballew was not engaged in union
or concerted activity when she said “Fuck Copper River” and called the managers “stupid.”
Mahan informed management about Ballew’s outburst and also memorialized the
incident in a two-page handwritten note which also described another problem with Ballew’s 30
work. According to Mahan, Ballew had a practice of giving customers free drinks. Mahan’s
note explained that Ballew’s actions placed other bartenders, such as herself, in an awkward
position when customers asked them for free drinks as well. Mahan’s note continued as follows:
Whenever working with her she often dispears [sic] from behind the bar for long 35
periods of time when we are busy. She also takes smoke breaks in car during
almost every shift. Last week she got written up for being late and having her
tattoo showing. She came out of the office and behind the bar in a horrible mood
saying stuff to regulars like, “fuck Copper River this place is stupid” and “the
managers are horrible.” Not only is it uncomfortable for me and other bartenders 40
to work with but guests even regulars don’t enjoy her constant complaining. It’s
not a positive environment for anyone, especially if they are new guests and hear
her comments.
JD(ATL)–26–13
40
The note continued with more details of Ballew’s conduct followed by Nahan’s opinion
that Ballew was “very unprofessional and has caused so much tension behind the bar.” Mahan
gave the note to Manager Lawrence.
The restaurant manager, Josh Walker, contacted Respondent’s vice president and chief 5
operating officer, Stephen Jackson. By telephone, they discussed her past instances of discipline,
Soria’s complaint against Ballew and the “Fuck Copper River” exclamation she made in front of
customers.
Jackson then contacted Respondent’s chief executive officer, Albert D. Angell. After a 10
discussion, Angell directed that Ballew be discharged. The restaurant manager, Walker, then told
Ballew that her employment was terminated. He also prepared an “Employee Counseling
Report” memorializing the discharge. It included the following statement of reasons for the
termination (with capitalization as in the original):
15
AUTUMN IS BEING WRITTEN UP FOR THE FOLLOWING REASONS:
SHE HAS BEEN WRITTEN UP IN THE PAST FOR BEING LATE, NO CALL
NO SHOW 3/8,3/11, BAR SHORTAGES 12/1, BAR MISS RINGS 10/8,
FAILURE TO CLOCK OUT 3/S, 3/7,4/2, FAILURE TO CLOCK IN OR OUT 3
OUT OF 4 SHIFTS ON PAYROLL 5/286/10.20
ON 7/11 A BAR REGULAR HAD A GUEST COMPLAINT ABOUT AUTUMN
THE GUEST SAID ON A REGULAR BASIS THAT AUTUMN NEGLECTED
HIM AND OTHER BAR GUEST. THE GUEST SAID SHE WOULD COME IN.
TEXT ON HER CELL PHONE AND THE WOULD EAT IN FRONT OF THEM 25
AND IGNORES THE GUEST.
ON 7/6 AUTUMN WAS COUNCELED ON FAILURE TO CLAIM TIPS AND
NOT CLOCKING OUT OR IN 3 OUT OF 4 SHIFTS AFTER SHE WAS
COUNCELED AUTUMN GOES TO THE BAR TALKING TO REGULARS 30
SAYING “FUCK COPPER RIVER THIS PLACE IS STUPID” AND THE
MANAGERS HERE ARE HORRIBLE”
WITH THESE LAST SEVERAL INSTANCES THAT AUTUMN HAS HAD AT
COPPER RIVER GRILL WHICH HAS LEAD TO GUIDELINES FOR 35
DISCIPLINE AND DISCHARGE #4 Insubordination to a manager or lack of
respect and cooperation with fellow employees or guest. This includes displaying
a negative attitude that is disruptive to other staff or has a negative Impact on
guests.
40
walker
When Ballew testified, she did not deny making the “Fuck Copper River” remark at work
and in the presence of customers. The closest she came to such a denial is the following
JD(ATL)–26–13
41
testimony, about her discharge interview with Manager Walker, which she gave on direct
examination by the General Counsel:
Q. And what did Mr. Walker say to you?
A. He told me that I was being fired for being three minutes late one day, for 5
showing my tattoo, for being caught on the patio smoking, and for a
customer complaint.
Q. Did he say what the customer complaint was?
A. He said that I said “Fuck Copper River” in front of a customer.
Q. That you said “Fuck Copper River” in front of the customers?10
A. Correct.
Q. Okay. And did he did you respond in any way?
A. Yes, I did.
Q. What did you say?
A. I explained the three minutes late, that I was sick that day. I was already at 15
work on time; I was just sick in the bathroom, is why I clocked in late.
Q. Okay.
A. I explained that I had my tattoo covered up with bandaids. The smoking
thing never happened, so of course I denied it. And then the customer
complaint I knew nothing about. 20
Q. And did you deny making that statement?
A. Yes, I did.
As noted above, my observations of the witnesses leave me uneasy about the reliability of
Ballew’s testimony. An inaccuracy in her testimony, quoted above, adds to those doubts. 25
According to Ballew, Walker said she was being fired for several reasons, including a “customer”
complaint and explained that she had said “Fuck Copper River” in front of a customer. This
testimony conflates two separate incidents.
The customer complaint did not concern language Ballew used but rather her absence 30
from her work area and her failing to perform her job duties. That was entirely separate from her
“Fuck Copper River” outburst. The discharge document prepared by Walker states that Ballew
had made the “Fuck Copper River” remark on July 6, 2012, and that the customer had
complained about Ballew texting on her cell phone rather than serving customers on July 11,
2012. Ballew’s failure to recall the separate customer complaint concerning her failure to 35
perform her job duties reinforces my impression that her apparent lack of interest in her work
duties reflected a more general inattentiveness.
Beyond my general doubts about Ballew’s testimony, I am skeptical about her claim that
she told Walker that she did not make the “Fuck Copper River” statement. Her testimony on this 40
point was unconvincing.
In the testimony quoted above, right after the General Counsel repeated, and Ballew
confirmed, that Walker had accused her of saying “Fuck Copper River” in front of customers, the
General Counsel asked Ballew what was her response. Ballew’s answer to that question was not 45
quite what I would have expected.
JD(ATL)–26–13
42
According to Ballew, during the discharge interview Walker cited a number of reasons for
her termination. All of these work-related problems certainly were nontrivial, but the “Fuck
Copper River” remark stands out as the elephant in the room, demanding attention and, if
possible, denial. The remark’s dramatic starkness and obvious impropriety would put it at the 5
top of the list of accusations to be contested, and likely would evoke an immediate, emphatic
denial by someone innocent. Yet when the General Counsel asked Ballew a nonleading
question—”What did you say?”—her answer focused on the mice and ignored the elephant.
She testified that she told Walker that she really had not been late on a particular occasion 10
but had been in the bathroom. She also told Walker that she had not violated the “no visible
tattoo” rule because her tattoo had been covered with a bandage. Ballew further testified that
“smoking thing never happened, so of course I denied it.”
However, Ballew did not volunteer any similar testimony to the effect that the “Fuck 15
Copper River” remark never happened and so she denied it. Ballew’s brief answer to a follow-
up question indicated that in the interview with Walker she had denied making the “Fuck Copper
River” remark, but Ballew provided no specifics as to what she actually had said to Walker.
Without such details, my doubts are undispersed.
20
Moreover, even if she did tell Walker that she had not made the “Fuck Copper River”
remark, such a denial does not rise to the level of a denial under oath, on the witness stand.
Ballew’s testimony does not include an explicit, unequivocal denial that she made the “Fuck
Copper River” remark in the presence of customers. Her September 6, 2012 affidavit, which is
in evidence, also does not include such a denial.25
Additionally, I credit the testimony of Rebecca Mahan that Ballew did say “Fuck Copper
River” in an outburst in front of customers. At the time of hearing, Mahan no longer was
working for Respondent. Although she had worked at Copper River Grill while in college, she
had completed her education and had embarked on a nursing career. Thus, the outcome of this 30
case would be of little consequence to her and unlikely to affect her testimony.
On cross-examination, Mahan was questioned about an error in her pretrial affidavit and
about minor differences between her affidavit and other evidence. Her demeanor, and her
willingness to admit the mistake, bolstered my conclusion that her testimony is reliable and 35
should be credited. Therefore, notwithstanding any denial Ballew may have given Walker during
the termination interview, I find that she made the statements and engaged in the actions which
Mahan attributed to her.
Again, I will use the Board’s Wright Line framework to determine whether Respondent’s 40
discharge of Ballew violated the Act, as alleged. As discussed above, under Wright Line, the
General Counsel has the initial burden of establishing that employees’ union activity was a
motivating factor in the Respondent’s taking action against them. He can satisfy his burden by
showing that (1) the employees engaged in union activity; (2) the employer had knowledge of
that union activity; and (3) the employer bore animus toward the employees’ union activity. 45
Vision of Elk River, Inc., 359 NLRB No. 5 (2012), citing Camaco Lorain Mfg. Plant, 356 NLRB
JD(ATL)–26–13
43
No. 143, slip op. at 3–4 (2011).
The government has proven that Ballew engaged in union activity. However, the credited
evidence fails to establish that Respondent’s officials who made the discharge decision knew she
had engaged in any union or protected activity.5
The three officials who recommended, made and effectuated the decision to terminate
Ballew’s employment—Jackson, Angell, and Walker—all denied having any knowledge of
Ballew’s activities at this time. Based on my observations of the witnesses, I conclude that their
testimony is reliable and I credit it.10
However, this finding, that the management officials who made the decision to discharge
Ballew were unaware of her union activity, must be reconciled with another finding. Above, I
found that Manager Lawrence learned about the union organizing drive sometime in May 2012.
Respondent has admitted that Lawrence is its supervisor and agent. Applying agency law 15
principles, the Board ordinarily would attribute to Respondent the knowledge which Lawrence
possessed.
Board precedent does not require direct evidence that the manager who took an adverse
employment action against an employee personally knew of that employee’s union activity. 20
Rather, the Board imputes a manager’s or supervisor’s knowledge of an employee’s union
activities to the decision maker, unless the employer affirmatively establishes a basis for negating
such imputation. Vision of Elk River, Inc., above.
Thus, in State Plaza Hotel, 347 NLRB 755 (2006), a supervisor, Aouli, left his 25
employment with a company just a day after Aouli had learned about an employee’s protected
activity. Nonetheless, the Board imputed Aouli’s knowledge to the higher-level manager, Rish,
who made the decision to discharge the employee. The Board stated:
It is true, as the dissent notes, that the Board does not impute knowledge of protected 30
activity in the face of credited contradictory testimony. However, for whatever reason,
the Respondent here chose not to present Rish to testify that he did not receive word
from Aouli.
347 NLRB at 757.35
In the present case, unlike State Park Hotel, the Respondent’s chief operating officer and
its chief executive officer—the management officials who, respectively, recommended and
authorized Ballew’s discharge—took the witness stand and denied having knowledge of her
protected activities. The store manager who discharged Ballew also denied knowing about her 40
union activities at the time.
Based on my observations of the witnesses, I have concluded they were telling the truth
and have credited their testimony. Therefore, I do not impute Lawrence’s knowledge of the
union organizing drive, or of Ballew’s role in it, to the Respondent or to its officials who decided 45
to terminate Ballew’s employment.
JD(ATL)–26–13
44
Frankly, I do not find it surprising that Lawrence would not communicate to higher levels
what he had learned about the union organizing drive. If the effort had appeared to have had any
realistic chance for success, I suspect that Lawrence would have let his superiors know about it.
However, Ballew had alienated some of her fellow employees by doing things which made their 5
work more difficult, such as “disappearing” while on duty, which meant that other employees
had to finish what she had left undone. Her influence on other employees might well have
seemed nil.
Moreover, the record suggests that both in May 2012, when Lawrence learned about it, 10
and also in mid-July, when Ballew was discharged, the union organizing effort had about as
much energy and visibility as a bear hibernating in a cave. The penultimate signature on the
union petition bore the date March 20, 2012. More than 3 months then elapsed before the final
signature on July 1, 2012. Of course, the dates of signatures on the petition hardly provide an
exact measure of union activity, but other evidence does not contradict the impression that such 15
activity had slumped into dormancy well before Ballew’s discharge.
In sum, crediting the testimony of Jackson, Angell, and Walker, I find that they were not
aware of Ballew’s union activities at the time of the decision to discharge her. Therefore, I
conclude that the government has not proven this element which is necessary to carry its initial 20
burden.
The Wright Line analysis therefore ends at this point, with the conclusion that the General
Counsel has not proven that Respondent’s discharge of Ballew violated Section 8(a)(3) and (1) of
the Act. However, I would note that the credited evidence also fails to establish the third element 25
which the General Counsel must prove, that Respondent bore antiunion animus towards Ballew.
The General Counsel’s brief argues that Respondent treated Ballew more severely than
two other employees. Although the Wright Line analysis ended before the point at which
evidence of disparate treatment would but evaluated, it may be helpful to address the General 30
Counsel’s argument briefly. The General Counsel’s brief stated:
A. Ballew. . .stated that she was present when a kitchen employee, whose name
she knew only as Drago, got into a loud heated argument with a manager during
2012. (TR 167–168) She stated that the two men cursed each other back and forth 35
and were so loud that customers even complained about the profanity. (TR 167–
168) She was at the bar when this incident took place. The bar is approximately
20 to 30 feet from the kitchen area where the confrontation took place. She stated
that Drago was not disciplined as a result of this incident. (TR 168) She further
testified that she had never received a complaint about using profanity in the 40
presence of a customer. (TR 169) To the contrary, the evidence shows that in
addition to the Drago incident, Respondent has allowed at least one other
employee to continue their employment after use of profanity in such a manner.
(GC 16) In this regard, employee Ashley Albrecht called a customer an “asshole”
and the profanity was overhead by a manager, yet she was only issued a written 45
warning. (TR 356357) (GC 16) Walker admitted that while the offending
JD(ATL)–26–13
45
comment was heard by a manager, it was loud enough that it could have been
heard by a customer. (TR 357358) Walker stated that Albrecht was merely issued
a written warning and was not discharged. (TR 357359) (GC 16)
Although the brief refers to an employee named “Drago,” the name appears as “Draco” in 5
the transcript of Ballew’s testimony and I will follow that spelling. Ballew could not remember
the name of the manager with whom Draco reportedly argued.
Because of my doubts about the reliability of Ballew’s testimony, I am reluctant to take
her report of the Drago incident at face value. As discussed above, her testimony tended towards 10
the imaginative and the melodramatic, which raises some doubt about how loud and vehement
the argument really had been. It also concerns me that Ballew, who had been working at the
restaurant for at least 4 and possibly 5 years when this shouting match supposedly occurred,
could not remember the name of the manager who participated in it. An employee would be
particularly likely to remember the name of a person in authority who loudly cursed another 15
worker because that manager potentially could aim his venom in the employee’s direction. The
mind instinctively would file such information in the “watch out for” category and hold onto it.
However, even if the incident took place as Ballew described, the participation of the
supervisor in the shouting match made it a much different situation from Ballew’s outburst in 20
front of customers. Moreover, and quite significantly, Ballew did not testify that Draco made
any comment equivalent to “Fuck Copper River,” disparaging the restaurant itself in front of
customers.
As to the Albrecht matter, I likewise am not persuaded that the situations are similar. 25
Calling a customer a vulgar epithet in front of a manager is not the same as using an even more
offensive expression to refer to the employer in the presence of customers.
Moreover, in Ballew’s case, a number of job-related performance problems came to
management’s attention at the same time. The two most serious—her neglecting customers to 30
text on her cell phone, without even concealing herself from the customers’ view, and her “Fuck
Copper River” remark—came within 5 days of each other. Ballew had demonstrated not a
single instance of unsatisfactory performance but an ominous pattern of such incidents.
Thus, even if the credited evidence established that Respondent’s management knew 35
about Ballew’s protected activities, the evidence cited to establish disparate treatment is
insufficient to prove antiunion animus. No other credited evidence indicates that animus was a
motivating factor in the decision. Accordingly, the General Counsel has not carried his initial
burden. I recommend that the Board dismiss the allegations that Respondent unlawful
discharged Autumn Ballew.40
There is one other matter related to Ballew’s discharge which should be addressed. In the
General Counsel’s posthearing brief, the government moved to amend the complaint to allege
another theory regarding why Respondent’s discharge of Ballew violated the Act. The brief
states:45
JD(ATL)–26–13
46
During the hearing, Walker acknowledged that A. Ballew was discharged pursuant
to work rule 4, cited above. (TR 354) (GC 2) As detailed above, work rule 4 is
overly broad and, therefore, violative of Section 8(a)( 1) of the Act. In this
connection, the Board has determined that where such an overly broad rule is
applied to restrict the exercise of Section 7 rights, any discipline issued pursuant 5
to such a work rule is similarly violative of the Act. See Ridgeview Industries,
Inc., 353 NLRB 1096, 1114 (2009).
Respondent’s work rule 4 prohibits “a negative attitude that is disruptive to other
staff or has a negative impact on guests.” (GC 2) On its face, the rule is subject to 10
a reasonable interpretation by employees that it prohibits Section 7 activities. . .In
its discharge notice to A. Ballew, Walker wrote that in violating work rule 4 she
displayed a “negative attitude that is disruptive to other staff or has a negative
impact on guests”. (R 10) This wording clearly refers to the prohibition of
protected activity and is violative of Section 8(a)(1) of the Act. Respondent’s 15
discharge of A. Ballew, pursuant to an unlawfully overbroad work rule, is
therefore violative of Section 8(a)(3) of the Act.
To be sure, A. Ballew’s termination pursuant to work rule 4 was not specifically
alleged in the Consolidated Complaint as it is merely another theory of a 20
violation. However, in an abundance of caution, Counsel for Acting General
Counsel asserts that A. Ballew’s termination pursuant to the overly broad rule is
closely related to her termination which is alleged in the Consolidated Complaint.
Moreover, the matter was fully litigated, and, accordingly, we move to amend the
Consolidated Complaint at this time to include the allegation that A. Ballew was 25
terminated pursuant to Respondent’s overly broad work rule 4, as an independent
violation of Section 8(a)(1) and (3) of the Act. [Italics added]
First of all, the government should take more care to describe the facts correctly. The
work rule in question does not prohibit “a negative attitude,” as the General Counsel’s brief 30
states, but rather prohibits displaying a negative attitude, and it prohibits only such displays that
are disruptive to staff or have a negative impact on guests.
Second, the General Counsel’s brief cites Ridgeview Industries, Inc., above, a case which
is not a valid precedent because decided by a two-member Board. See New Process Steel, L.P. v. 35
NLRB, above.
Third, under extant precedent, the rule in question is lawful as written. See Lutheran
Heritage Village – Livonia, above.
40
Fourth, the rule’s obvious purpose is to prevent incivility and rudeness to other
employees and guests. To argue that this rule cannot be applied when an employee says “Fuck
Copper River” in the presence of employees and guests is absurd.
Fifth, Section 102.17 of the Board’s Rules and Regulations provides that, at the hearing 45
stage, complaint may be amended by the administrative law judge upon motion. Section 102.26
JD(ATL)–26–13
47
provides that a motion shall become part of the record. However, the record, as defined in
Section 102.45(b), does not include briefs to the administrative law judge.
A motion should be filed, and served, as a separate document, to place the other parties
on clear notice and afford them opportunity to respond. Finding it lacking in merit, I deny the 5
General Counsel’s motion to amend the complaint.
Complaint Paragraph 13(b)
Complaint paragraph 13(b) alleges that beginning about May 2012, Respondent ? the 10
work hours of and provided fewer closing shifts to its employee Ballew. The complaint
elsewhere alleges that this alleged decrease in work hours and closing shifts violated Section
8(a)(3) and (1) of the Act. Respondent denies these allegations. The General Counsel’s brief
described these allegations, in part, as follows:
15
After being observed with K. Ballew and Massey on the patio as they solicited
support for the Union from another employee, A. Ballew stated she noticed a
change in Lawrence’s behavior toward her. (TR 147) She testified that he became
more hostile toward her and refused to respond to her when she had questions.
(TR 147) More significantly, she stated that her work hours were reduced and she 20
received fewer closing shifts. (TR 147) This reduction in hours and closing shifts
resulted in A. Ballew receiving less compensation. (TR 147) In this regard, A.
Ballew stated that, starting in May, her compensation in wages and tips was
reduced from approximately $300.00 per week down to about $40.00 per week.
(TR 148)25
To establish these allegations, the government relies on Ballew’s testimony and time
records showing the hours she worked. However, this evidence fails to prove the alleged
discrimination because management based its scheduling decisions on when Ballew said she
would be available to work and she had reduced her availability during this time period.30
When Respondent cross-examined Ballew, she admitted that she had informed
management that she wouldn’t be available for work during certain times, and those periods were
blacked out on the scheduling sheets. Examining those sheets, she identified instances in which
she wasn’t scheduled for work after informing management that she would not be available for 35
work at those times, and instances in which she was scheduled for work consistent with her
availability:
Q So on Friday, which would be a normal work shift, you requested to be
off, correct?40
A I did.
Q And on Saturday which would be your requested shift, you requested to be
off?
A Yes.
Q Sunday, you requested to be off?45
A Yes.
JD(ATL)–26–13
48
Q All right. The following week on Tuesday 6/12, which would be a normal
work schedule shift, you requested to be off, correct?
A Correct.
Q And on Friday 6/15, which would be a normal work shift for you, you
requested to be off, didn’t you?5
A Correct.
Q And on Saturday, which would be a normal shift that you would work, you
requested to be off, correct?
A I was on vacation that whole week, yes.
Q All right. And on Sunday, which would be a normal shift, you requested 10
to be off?
A Yes.
Q All right. The following week, 6/19, Tuesday, you’re scheduled for a
closing shift, correct?
A That’s correct.15
Q And then you’re not scheduled on Friday, but you’re scheduled on
Saturday, correct?
A Correct.
Q Then the next week, 7/2, do you see this?
A Uhhuh.20
Q And on Tuesday, 7/3, you’re scheduled for your Tuesday shift, correct?
A Uhhuh.
Q And you’re scheduled for your Friday shift, correct?
A Correct.
25
The manager in charge of the restaurant, Josh Walker, credibly testified that Ballew
“would constantly change her availability for work.” As noted above, my observations of the
witnesses lead me to conclude that Walker’s testimony is reliable. Moreover, in view of other
evidence concerning Ballew’s work behavior, the testimony is quite plausible. Based on
Walker’s credited testimony, I find that Ballew often changed the dates and times on which she 30
would be available for work.
Section 8(a)(3) of the Act prohibits an employer from discrimination that encourages or
discourages union membership. To establish a violation, the government must both plead and
prove an act of discrimination “in regard to hire or tenure of employment or any term or 35
condition of employment.” See 29 U.S.C. § 158(a)(3). Here, the relevant term or condition of
employment is being scheduled to work or in being scheduled to work a closing shift.
In a typical case, an employee’s availability for work is simply presumed and does not
become an issue. In the present case, it cannot be taken for granted. Credited testimony 40
establishes that Ballew changed her availability often. However, the General Counsel has not
identified a particular instance in which the evidence establishes that Ballew was available for
work but was not placed on the schedule. The General Counsel’s brief states:
With respect to A. Ballew’s loss of work hours and loss of closing shifts, the 45
documentary evidence clearly demonstrates the factual basis for this allegation.
JD(ATL)–26–13
49
(GC 12) In this regard, a comparison of “Amber’s” and A. Ballew’s scheduled
shifts, during the period of May through July, shows that A. Ballew received
barely half the hours of her junior counterpart. (TR 149154) (GC 12)
This argument does not take into account the fact, established by reliable evidence, that 5
Respondent scheduled bartenders for work based upon their stated availability for work. Making
a meaningful comparison would require not only evidence about the information Ballew gave
management concerning her availability for work, but also the information which “Amber”
provided management concerning her own availability for work. In the absence of such
information, it cannot even be concluded that the Respondent discriminated in scheduling, let 10
alone the reason for or legality of such a decision.
Here, the General Counsel has not proven any instances of discrimination. Absent such
an adverse employment action, any discussion of motivation takes the issue into the theoretical
realm of philosophy, where the rarified air gives judges altitude sickness. 15
In view of my conclusion that the government has failed to prove any instance of
discrimination, any further discussion may well be superfluous. Nonetheless, one other
argument raised by the General Counsel might warrant discussion. The General Counsel’s brief
states, in part, as follows:20
The evidence reflects that when A. Ballew complained about her work hours,
Lawrence responded by stating, “Well, why don’t you just quit?” (TR 156) This
threatening and coercive statement proves the nature of Respondent’s hostility
toward A. Ballew’s union involvement and evidences its unlawful motive and 25
actions.
However, Ballew’s testimony concerning the supposed “why don’t you just quit” remark
does not indicate that it occurred within any discussion of union activity or in any context which
would suggest a reference to such activity. Moreover, I do not credit Ballew’s testimony but 30
instead conclude, based on Lawrence’s credited denial, that he never made such a statement. In
other respects, no credible evidence suggests that antiunion animus entered into any decision
regarding Ballew’s work schedule.
For all of these reasons, I recommend that the Board dismiss the unfair labor practice 35
allegations related to complaint paragraph 13(b).
Complaint Paragraph 13(c)
Complaint paragraph 13(c) alleges that in about June 2012, Respondent issued verbal 40
warnings to its employee Ballew. Respondent denies this allegation.
The General Counsel’s brief could be clearer in identifying the conduct described in this
complaint paragraph. It appears that the government is referring to one of the reasons which
Walker gave, during the discharge interview, for the decision to terminate Ballew’s employment. 45
Ballew’s testimony about this interview, quoted above, included that Walker “told me that I was
JD(ATL)–26–13
50
being fired for being three minutes late one day.” The following passage in the General
Counsel’s brief leads me to believe that complaint paragraph 13(c) relates to this incident:
Likewise, the issuance of a verbal warning to A. Ballew for being late also
violates the Act for several reasons. First, the evidence fails to show that A. 5
Ballew was even aware that her discussion with Lawrence constituted a formal
verbal warning under the Respondent’s progressive disciplinary procedure.
Second, to the extent that Respondent relied on the alleged verbal warning as a
factor supporting her later termination, without specifically informing her that the
warning existed, demonstrates Respondent’s overall unlawful motive and 10
animosity toward A. Ballew. Finally, that A. Ballew was present at the restaurant
on the day in question and had only clocked in three minutes late because she
stepped away to use the restroom, demonstrates that Respondent was grasping at
straws and looking for reasons to terminate her employment. In this regard, to
verbally warn an employee, who is actually present at the facility, about her 15
failure to timely clock in, when the employee was simply using the restroom,
clearly evidences the unreasonableness of the Respondent’s actions and direct
animus toward A. Ballew. Notably, Respondent failed to present evidence that
other employees have been verbally warned under similar circumstances.
20
The General Counsel misapprehends the situation. As part of the discharge interview,
Walker reviewed Ballew’s past work performance, which included this incident. Certainly, it
was minor compared to the other problems, but it formed part of an all too consistent and all too
persistent pattern. It was one dot among many which, when connected, created a picture of an
employee whose performance was sliding from unsatisfactory to worse than unsatisfactory.25
Moreover, Ballew admitted that she had, in fact, been late on the day in question.
Warning an employee who is late that she should arrive on time does not violate the Act.
Therefore, I recommend that the Board dismiss the unfair labor practice allegations 30
related to complaint paragraph 13(c).
REMEDY
The record establishes one violation that a supervisor requested that an employee keep 35
him informed of developments in the union organizing campaign. This violation must be
remedied by posting the Notice to Employees attached hereto as Appendix.
The General Counsel seeks an order requiring a management official to read the Notice
out loud to employees. This is an extraordinary remedy reserved for extraordinary violations. 40
Chinese Daily News, 346 NLRB 906, 909 (2006). The violation found here is not one of them.
Accordingly, the usual posting of the Notice will suffice.
JD(ATL)–26–13
51
Conclusions of Law
1. The Respondent, Copper River of Boiling Springs, LLC, is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
5
2. The National Workers Association is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act when its supervisor and agent
asked an employee to keep him informed about the union organizing drive.10
4. Respondent did not violate the Act in any other manner alleged in the complaint.
On these findings of fact and conclusions of law and on the entire record in this case, I issue the
following recommended115
ORDER
The Respondent, Copper River of Boiling Springs, LLC, its officers, agents, successors,
and assigns, shall20
1. Cease and desist from
(a) Asking employees to keep it informed about employees’ union and
protected, concerted activities.25
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing, or to engage
in concerted activities for the purpose of collective bargaining or other mutual aid or protection, 30
or to refrain from any and all such activities.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
35
(a) Within 14 days after service by the Region, post at its facilities in
Greenville, South Carolina, copies of the attached notice marked “Appendix.”2 Copies of the
notice, on forms provided by the Regional Director for Region 10, 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 40

1 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these findings,
conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board,
and all objections to them shall be deemed waived for all purposes.
2 If this Order is enforced by a judgment of the 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.”
JD(ATL)–26–13
52
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. In addition
to physical posting of paper notices, noticed shall be distributed electronically, such as by email,
posting on an intranet or internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. J. Picini Flooring, 356 NLRB 5
No. 9 (2010). In the event that, during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since May 1, 2012. Excel Container, Inc.,
325 NLRB 17 (1997).10
(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 Regional
Director attesting to the steps that the Respondent has taken to comply.
15
Dated Washington, D.C. September 25, 2013
20
______________________________
Keltner W. Locke
Administrative Law Judge
JD(ATL)–26–13
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 abide by 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 interfere with, restrain, or coerce our employees in the exercise of these rights,
guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL NOT ask any employee to keep us informed about employees’ union activities or
other protected concerted activities.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
COPPER RIVER OF BOILING SPRINGS, LLC
(Employer)
Dated: ___________________ By: __________________________________________
(Respondent) (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.
233 Peachtree Street, N.E., Harris Tower, Suite 1000, Atlanta, GA 30303-1531
(404) 331-2896, Hours: 8:00 a.m. to 4:30 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, (336) 631-5216