Cordua Restaurants, Inc.

National Labor Relations Board - Board Decisions

Apr 26, 2018

366 NLRB No. 72 (N.L.R.B. 2018)

366 NLRB No. 72
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Cordúa Restaurants, Inc. and Steven Ramirez and
Rogelio Morales and Shearone Lewis. Cases 16–
CA–160901, 16–CA–161380, 16–CA–170940, and
16–CA–173451
April 26, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
On December 9, 2016, Administrative Law Judge Sha-
ron Levinson Steckler issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the General Counsel filed cross-exceptions and a sup-
porting brief. The Respondent and General Counsel filed
answering briefs and reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions and briefs and
has decided to adopt the judge’s rulings,1 findings,2 and

1 The Respondent excepts to the judge’s granting of the General
Counsel’s motion to strike three non-record exhibits attached to its
posthearing brief to the judge. We find it unnecessary to pass on this
exception because the judge did not rely on the exhibits to support her
findings and, in any event, they would not affect the result in this case.
2 The Respondent and General Counsel have excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in
relevant part 737 F.3d 344 (5th Cir. 2013), as affirmed by the Board in
Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant
part 808 F.3d 1013 (5th Cir. 2015), the judge found that the Respondent
violated Sec. 8(a)(1) by promulgating and maintaining an arbitration
agreement that requires employees, as a condition of employment, to
waive their rights to pursue class and collective actions involving em-
ployment-related claims in all forums, whether arbitral or judicial.
Subsequent to the judge’s decision, the United States Supreme Court
granted certiorari in Murphy Oil, USA. See NLRB v. Murphy Oil, USA,
Inc., 137 S.Ct. 809 (2017). Pending the Supreme Court’s decision in
Murphy Oil we shall sever and retain the complaint allegation pertain-
ing to the arbitration clause as well as the related Sec. 8(a)(1) allegation
that Assistant Manager Alex Nguyen threatened employees with lost
employment if they refused to sign the arbitration agreement by telling
them “I wouldn’t bite the hand that feeds me.”
Similarly, although we reject the Respondent’s argument that the
judge abused her discretion when granting the General Counsel’s mo-
tion at the hearing to amend the complaint to allege that several em-
ployee handbook provisions were unlawfully overbroad, we shall sever
those rules’ allegations and retain them for further consideration.
Member McFerran joins her colleagues in severing the allegations
that the handbook rules and the arbitration agreement are unlaw-
conclusions3 in part, to reverse them in part, and to adopt
the recommended Order as modified and set forth in full
below.4
1. The judge found, applying the analysis set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F. 2d
899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), that
the Respondent violated Section 8(a)(1) of the Act by
discharging employee Steven Ramirez in response to his
filing of a collective action lawsuit against the Respond-
ent alleging minimum wage and overtime violations un-
der Federal and State law. We agree.
There is no dispute that filing the lawsuit constituted
protected concerted activity and we agree with the judge
that the General Counsel met his initial evidentiary bur-
den under Wright Line of establishing that the lawsuit,
joined by many employees in the months leading up to
Ramirez’ discharge, was a motivating factor in his termi-
nation. We further agree with the judge that the Re-
spondent failed to establish its Wright Line defense that it
would have discharged Ramirez even in the absence of
his protected concerted activity. The Respondent’s main
defense is that it discharged Ramirez not for his protect-
ed concerted activity, but for his unprotected activity of
attempting to steal employee wage information from
confidential company files and lying about it during in-
vestigative interviews. We reject this defense on several
grounds.

ful. She observes that—with regard to Nguyen’s statements declaring
that employees’ failure to sign the arbitration agreement would lead to
termination, and that “I wouldn’t bite the hand that feeds me”—the
determination whether those statements violated Sec. 8(a)(1) does not
necessarily turn on the lawfulness of the arbitration agreement. Even
assuming, arguendo, that the Respondent could lawfully impose the
agreement on employees, employees would still have a Sec. 7 right to
engage in protected concerted activity in opposition to the agreement,
and a threat of retaliation for engaging in such activity would still be
unlawful. Nonetheless, because her colleagues are simply severing
these allegations for future consideration and not adjudicating the issue
on the merits, she concurs in the decision to sever this allegation as
well.
3 The Judge omitted the names of the Respondent’s supervisors and
agents in Conclusions of Law paragraph 2. However, the Consolidated
Complaint alleged, and the Respondent’s First Amended Answer ad-
mitted, that at all material times Rigoberto Romero, Claudia Navas,
Damian Ambroa, Sergio Rodriguez, Patricia Lopez, John Karber, Fred
Espinoza, Naomi Reichman, Alex Nguyen, and Patricia Quinones were
supervisors of the Respondent within the meaning of Sec. 2(11) of the
Act and agents of the Respondent within the meaning of Sec. 2(13) of
the Act.
4 The General Counsel seeks a make-whole remedy that includes
consequential damages incurred as a result of the Respondent’s unfair
labor practices. The relief sought would involve a change in Board
law. Having duly considered the matter, we are not prepared at this
time to deviate from our current remedial practice. Accordingly, we
decline to order this relief at this time. See e.g. Laborers’ International
Union of North America, Local Union No. 91 (Council of Utility Con-
tractors), 365 NLRB No. 28, slip op. at 1 fn. 2 (2017).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The Board has held that “mere request[s]” by employ-
ees for information relevant to Section 7 activities are
protected, “even if the employer contends that [the re-
quested information] is confidential.” Faurecia Exhaust
Systems, 355 NLRB 621, 622 (2010). The protection is
lost, however, if the employee obtains, or seeks to obtain,
the requested information surreptitiously. Id., citing
Ridgely Mfg. Co., 207 NLRB 193, 197 (1973), enfd. 510
F.2d 185 (D.C. Cir. 1975). Ramirez’ conduct was plain-
ly protected under this precedent.
While employed at the Respondent’s Sugarland restau-
rant in late July 2015, Ramirez sent a text message to
Naomi Reichman, the Assistant Manager of the Re-
spondent’s Artista restaurant, where Ramirez occasional-
ly worked. As the judge found, Ramirez’ text message
requested that Reichmann obtain his pay records for him.
Not only was this a protected request under Faurecia, it
was permitted by the Respondent’s handbook. The Re-
spondent argues, however, that Ramirez also sought the
pay records of other employees. The text does not sup-
port this contention but, even if it did, such a “mere re-
quest” would have remained protected under Faurecia.
Contrary to the Respondent, there is also no evidence
that Ramirez asked Reichman to steal the wage infor-
mation of other employees. In support of that argument,
the Respondent relies principally on a text from Reich-
man to Artista’s General Manager Damian Ambroa, stat-
ing that Ramirez had “asked” if she could obtain em-
ployees’ payroll information. But nowhere in Ramirez’
text did he ask Reichman to “misappropriate the [wage]
information or to obtain the records by disregarding any
policy set forth in the Respondent’s employee hand-
book.” Faurecia, supra, 355 NLRB at 622. Compare
Macomb Daily, 260 NLRB 983, 984–986 (1982) (finding
unprotected an employee’s surreptitious conduct in wait-
ing for bookkeeper’s supervisor to go to lunch and then
pressuring the bookkeeper, despite her initial refusal, to
provide him with wage information).
Accordingly, because Ramirez’ wage information re-
quest—either as found by the judge, or as argued by the
Respondent—was protected, it cannot serve as a legiti-
mate Wright Line defense. But even assuming that
Ramirez’ conduct was unprotected, we agree with the
judge, for the reasons that she states, that the Respond-
ent’s reliance on that asserted unprotected misconduct as
the basis for his discharge was a pretext. We, therefore,
adopt the judge’s finding that Ramirez’ discharge violat-
ed Section 8(a)(1).5

5 In adopting the judge’s pretext finding, we do not rely on the ad-
verse inference the judge drew against the Respondent for failing to call
Reichman as a witness in its case in chief.
2. We do not agree with the judge, however, that the
Respondent discharged employee Shearone Lewis in
violation of Section 8(a)(1). For the reasons explained
below, we reverse the judge’s finding and dismiss this
complaint allegation.
Lewis was a server at the Artista restaurant where, as
noted above, Ambroa was the General Manager and
Reichman was the Assistant Manager. Lewis joined
Ramirez’ lawsuit in June 2015, and recruited other em-
ployees to join.
By most accounts, including Ambroa’s, Lewis was a
very good server whom patrons frequently requested.
However, she was also difficult to work with, as evi-
denced by disciplinary reports predating her April 2016
discharge. For example, Ambroa and Reichman testified
about a March 2014 confrontation they witnessed be-
tween Lewis and kitchen staff employee Noelia Herrera.
Ambroa testified that an upset Lewis “scream[ed]” at
Herrera about the delay of an order Lewis had placed.
Lewis received a written warning and a suspension for
this incident. She received another written warning and
suspension in May 2015 for “yell[ing]” at a server for not
assisting in server side-work duties, such as setting tables
and polishing glasses.6
In October 2015, another confrontation occurred be-
tween Lewis and her coworkers that resulted in an inves-
tigation by Human Relations Manager Patricia Quinonez.
As described by the judge, five kitchen employees of
Hispanic origin “accosted” Ambroa with complaints that

We reject the Respondent’s reliance on Fresenius USA Mfg. Inc.,
362 NLRB No. 130 (2015), in arguing that it lawfully discharged
Ramirez for lying to Chief Operating Officer Espinoza in an investiga-
tory interview that his texts to Reichmann were only for the purpose of
obtaining his work schedule. In Fresenius, the Board found that the
employee’s dishonesty “did not implicate a legitimate interest in shield-
ing his Section 7 activity from employer inquiry” because he “had no
reasonable basis to believe that Fresenius was attempting to pry into
protected union activity generally or that he would suffer reprisal for
the activity in question because of its prounion content.” Id. slip op. at
2. Here, by contrast, Espinoza pried into Ramirez’ protected activity by
asking if he requested Reichman to obtain employees’ payroll infor-
mation. Ramirez was entitled to “shield[ this] Sec. 7 activity from [the
Respondent], even by lying.” Id. at 1, fn. 3. We find Fresenius distin-
guishable for the additional reasons provided by the judge, namely, that
the employer in that case conducted a detailed investigation into the
employee’s alleged misconduct and had a confession which the em-
ployee subsequently denied making. Here, the Respondent failed to
discuss the matter with Ramirez for about 6 weeks, during which time
it permitted Ramirez to work. When Espinoza finally confronted
Ramirez, he failed to provide Ramirez an opportunity to review the
assertedly inappropriate texts.
6 This is R. Exh. 7, referenced in Sec. XI, C. 2 of the judge’s deci-
sion. The judge incorrectly found that this “disciplinary action form
does not accurately reflect the events” of the May 2015 incident; the
judge confused this disciplinary form with the one she thought Lewis
received for the “spoiled dessert” incident in October 2015.
CORDÚA RESTAURANTS, INC. 3
Lewis made derogatory remarks to them after she dis-
covered that a spoiled dessert had been served to a guest.
In written statements taken by Ambroa, the five employ-
ees alleged that Lewis came into the kitchen screaming
for the sous chef to complain about the dessert. Most of
the statements allege that before the chef appeared, Lew-
is looked at the employees and said “Y’all looking at me
like y’all don’t speak my language;” two statements al-
lege that she called them “dumb foreigners” or “f__ing
dumb people;” and one statement alleges that she called
them “stupid.” Ambroa forwarded the statements to
Quinonez who worked at Respondent’s corporate office.
Quinonez arrived at the restaurant 2 days later to conduct
an investigation. After meeting with the five employees,
who all confirmed their statements, Quinonez presented
the employees’ accusations to Lewis and reminded her
that “this is not the first time we have received com-
plaints about your behavior.” Lewis admitted yelling for
the chef because the kitchen is so noisy, but denied call-
ing the employees any names. Although Ambroa rec-
ommended that Lewis be discharged, Quinonez warned
Lewis not to engage in any future inappropriate conduct.
Management personnel also complained about Lewis’
conduct. In December 2014, Lewis was counseled for
insubordination for refusing a manager’s directive that
all staff remain after hours to set up the restaurant for
business the next day. In December 2015, Assistant
Manager Nguyen emailed Ambroa with complaints of
continual “false” accusations by Lewis - sometimes “in
the middle of the restaurant with [employees] witnessing
the entire incident” - of unfair treatment with respect to
tables and sidework that he assigned her. Nguyen stated
that he felt “harassed” by Lewis’ “petty, selfish issues”
and demanded that a decision be made by someone
“higher up” to resolve the problem. Ambroa forwarded
Nguyen’s email to Espinoza, adding his own complaints
that Lewis threatened to call her lawyer on several recent
occasions when he tried to counsel her for being late to
work, and stated that “SHE NEEDS TO GO!!” Ambroa
criticized the failure to discipline Lewis after the spoiled
dessert incident 2 months earlier, and stated “we cannot
let her do whatever she wants just because she is part of a
lawsuit. I can get 15–20 team members to testify against
her, relating to all of her misconduct while at work.”
It was against this background that the events leading
to Lewis’ discharge arose. In late February 2016, several
employees contacted Quinonez alleging that Lewis and a
second employee were creating a “hostile environment”
at the Artista restaurant. On March 23, Quinonez inter-
viewed 15 employees at the restaurant. In those inter-
views, and in written witness statements that Quinonez
obtained from these employees, many of the employees
described Lewis as constantly screaming at them for not
doing their jobs correctly, being rude and impatient to
kitchen staff when placing orders, and being “disrespect-
ful to management” by disrupting pre-shift meetings and
“arguing loud with the management team.” Three state-
ments allege that Lewis made comments critical of His-
panic employees for not understanding English and call-
ing them “wetbacks,” and two statements allege that she
threatened to report kitchen staff to immigration authori-
ties. As summed up by the chef and kitchen manager,
and confirmed by the statements of two other employees,
the restaurant was a good place to work but “gets bad
only when [Lewis] is working” (chef’s statement); and
“there is peace and tranquility in the kitchen when she
doesn’t come to work” (statement of kitchen manager).7
Quinonez discussed her investigation with chief oper-
ating officer Espinoza and both agreed that in light of the
employees’ complaints and Lewis’ past discipline and
warning for the same mistreatment of coworkers, dis-
charge was warranted. Quinonez informed Lewis of her
discharge in an April 5 meeting, where she provided her
with a termination form stating that she was discharged
for the following misconduct: making inappropriate
comments to coworkers regarding national origin, race
and color; directing derogatory comments toward work-
ers (e.g., “wetbacks,” Mexicans, etc.); confronting
coworkers about whether they can speak English; speak-
ing rudely and unprofessionally to coworkers; and being
disrespectful toward supervisors/management. Lewis
denied the allegations, telling Quinonez “you know me, I
don’t talk like this.”
Discussion
Applying Wright Line, the judge found that Lewis was
discharged in violation of Section 8(a)(1). She found
that the General Counsel established the requisite show-
ing under Wright Line that Lewis engaged in protected
concerted activity by joining the FLSA lawsuit and re-
cruiting others to join it, and that the Respondent was
aware of that activity and was motivated by animus
against that activity in discharging her. The judge further
found that the Respondent failed to establish its Wright
Line defense that it would have discharged Lewis even
absent her protected concerted activity. Although we
agree with the judge that the General Counsel satisfied
her Wright Line burden of showing that Lewis’ discharge
was unlawfully motivated, we find that the Respondent

7 Lewis also provided a written statement denying any problems be-
tween her and kitchen employees, except for a “language barrier” that
sometimes created difficulties in explaining to them a change to a
guest’s menu order.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
established that it would have discharged her even absent
the unlawful motive.
To establish a defense under Wright Line, an employer
must show by a preponderance of the evidence that it
would have taken the same action even in the absence of
the employee’s union or protected concerted activity.
Metropolitan Transportation Services, 351 NLRB 657,
659 (2007). In certain cases in which the employer has
disciplined an employee for asserted misconduct, the
Board permits the employer to meet its Wright Line de-
fense if it can establish, under all of the circumstances
that it had a reasonable, good-faith belief that the em-
ployee engaged in the misconduct, and that it acted on
that belief in taking the adverse employment action
against the employee. This arises in cases involving
misconduct of a severe nature where the employer con-
ducted an extensive investigation that substantiated its
reasonable belief of the employee’s misconduct. See,
e.g., DTR Industries, 350 NLRB 1132, 1135–1136 & fn.
29 (2007) (“Given the magnitude of the financial loss
caused by this 2-day spurt of ruined production, and the
Respondent’s careful elimination of other bases to ex-
plain the production errors,” the respondent established
its reasonable belief that the employee intentionally pro-
duced defective products), enfd. 297 Fed.Appx. 487 (6th
Cir. 2008) (unpublished); GHR Energy Corp., 294
NLRB 1011, 1012–1013 (1989) (Respondent met its
Wright Line burden by establishing that it would have
suspended the employees, even in the absence of their
protected activity, because based on its investigation, the
respondent reasonably believed the employees had en-
gaged in serious misconduct endangering other employ-
ees and the plant itself.), enfd. 924 F.2d 1055 (5th Cir.
1991) (unpublished). The principles from these cases
apply here.
As detailed above, when Quinonez was alerted to ac-
cusations in February 2016 that Lewis had created a hos-
tile work environment at the restaurant, she commenced
an investigation where she obtained numerous employee
statements attesting to Lewis’ offensive and inappropri-
ate comments about her coworkers’ race and ethnicity
and her reputation among employees and management as
an employee who was difficult to work with. Lewis had
been warned and suspended twice in the previous 2 years
for verbally accosting coworkers, and counseled in De-
cember 2014 for refusing a manager’s work directive. In
addition, a complaint by five employees in October 2015
that Lewis had screamed and called them derogatory
names was serious enough to warrant an investigation by
corporate headquarters and, a mere 4 months later, Qui-
nonez received multiple new complaints about Lewis’
behavior, substantiated by most of the 15 employees who
provided written statements to Quinonez. Based on
Lewis’ past record, and Quinonez’ investigation of the
February 2016 complaints, Quinonez recommended that
Lewis be terminated; Espinosa agreed and Lewis was
terminated.8
It bears emphasizing that the Respondent received re-
peated complaints by many of Lewis’ coworkers that she
made demeaning and derogatory comments about their
race and nationality and threatened to report two em-
ployees to immigration authorities. Based on these seri-
ous and widespread complaints, substantiated by signed,
witness statements obtained by the Respondent during its
investigation, we find that the Respondent met its burden
of demonstrating that it had a reasonable, good-faith be-
lief that Lewis created a hostile work environment for a
large number of employees. And the impact on employ-
ee morale was apparent, as described by the Respond-
ent’s chef who stated that the restaurant was a good place
to work but “gets bad only when [Lewis] is working.” In
Harris v. Forklift Sys., 510 U.S. 17, 22 (1993), the Su-
preme Court observed that a “discriminatorily abusive
work environment . . . can and often will detract from
employees’ job performance, discourage employees from
remaining on the job, or keep them from advancing in
their careers.”
Although the judge credited the testimony of Lewis
over the testimony of the complaining employees, her
findings in this regard are distinct from whether the Re-
spondent reasonably believed that Lewis did engage in
the misconduct.9 The Respondent was not required to

8 By the time Lewis was discharged, the Respondent had discharged
the other employee, Cecilia Blanco, whom employees also accused of
creating the hostile work environment.
9 We do not accept the judge’s credibility resolutions to the extent
they are based on her finding that the investigatory statements of some
employees were inconsistent with their trial testimony, or that their
testimony was contradicted by other witnesses. For example, the judge
discredited employee Maria “Ruby” Garza because her statement that
Lewis yelled at her and coworkers “primarily” in the kitchen, was
inconsistent with her testimony that Lewis yelled at her in front of
customers and in the kitchen. We see no inconsistency, as the state-
ment does not indicate that Lewis’ yelling was confined primarily to
the kitchen. Nor is the judge correct in finding that Garza’s testimony
contradicts her statement that Lewis recruited employees to join the
FLSA lawsuit. Garza testified, consistent with her statement, that Lew-
is regularly recruited employees to join the lawsuit (Tr. 553).
Similarly, the judge determined that employee Herrera’s statement
was inconsistent with her testimony because the statement made no
mention that Lewis: 1) cursed at kitchen employees; 2) threw things at
her, and 3) threw a stale salad in the trash. We see no material incon-
sistencies. With respect to the first point, Herrera’s statement noted
that Lewis “flip[ped her] off” (i.e. gave her “the middle finger”) in a
dispute over the proper method for placing salad orders, which was
consistent with Herrera’s testimony that Lewis cursed at kitchen em-
ployees. As to the next two points, Herrera did not testify, as the judge
found, that Lewis threw things at her; rather, she testified that Lewis
CORDÚA RESTAURANTS, INC. 5
“prove that [Lewis] had committed the misconduct al-
leged,” DTR Industries, supra, 350 NLRB at 1135; ra-
ther, even accepting the judge’s credibility resolutions as
correct, the Respondent was required only to show that it
discharged Lewis based on its reasonable belief that she
engaged in the serious misconduct for which she was
discharged. In short, although the facts here are unusual
due to Lewis’ credited denial of misconduct, given the
circumstances surrounding the Respondent’s belief that
she engaged in serious misconduct—particularly its re-
ceipt of many serious complaints by her colleagues—we
find that the Respondent has satisfied its burden.
Finally, we disagree with the judge that the 3-month
delay between Ambroa’s December 2015 email com-
plaints about Lewis and Quinonez’ investigation in
March suggests that the Respondent tolerated Lewis’
misconduct until it discovered in March that Lewis re-
cruited employees to join the lawsuit and that this dis-
covery spurred the Respondent to terminate her. The
Respondent did not wait 3 months before acting on the
December complaints; it commenced its investigation in
March in response to new employee complaints of Lew-
is’ misconduct that Quinonez received in February.
Those complaints, which were cited as the basis for Lew-
is’ discharge, were documented in the employee state-
ments submitted to Quinonez during her March investi-
gation and, contrary to the judge, the statements were not
all “non-specific” as to when Lewis’ misconduct oc-
curred. A statement by a chef alleged that, just “last
week,” Lewis threatened kitchen employees that she
would report them to Immigration, and a kitchen em-
ployee’s statement similarly alleged the same threat by
Lewis “a few days ago.” A statement by another chef
alleged that Lewis “screamed” at him “last week” be-
cause her order was not ready and another statement de-
scribed Lewis yelling in the kitchen “a few days ago”
that “there are a lot of wet backs working here, they do
not know what they are doing in there, they don’t even
speak English.”
In sum, we find that the Respondent established a rea-
sonable belief, based on the numerous complaints by
employees, that Lewis engaged in a continuous pattern of
inappropriate and confrontational conduct directed at her
coworkers, and that it acted on that belief in discharging

threw a stale salad in the trash because the lettuce was not crisp. And
Herrera’s statement similarly mentioned the “incident that happened
when the lettuce was not crisp . . . .”
Finally, with respect to kitchen manager Eduardo “Lalo” Vera, who
testified that Lewis frequently called kitchen workers “stupid,” we
reject the judge’s finding that Ambroa contradicted Vera by testifying
that he never heard Lewis use that term. That Ambroa may not have
heard such language by Lewis means only that; it does not contradict
Vera’s testimony.
her. Accordingly, we conclude that the Respondent has
carried its Wright Line burden of establishing that it
would have discharged Lewis even in the absence of her
protected activity. We therefore reverse the judge and
dismiss the allegation that she was discharged in viola-
tion of Section 8(a)(1).10
ORDER
The National Labor Relations Board orders that the
Respondent, Cordúa Restaurants, Inc., Houston, Texas,
its officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Discharging an employee because he engaged in
protected concerted activities.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Within 14 days from the date of the Board’s Order,
offer Steven Ramirez full reinstatement to his former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(b) Make Steven Ramirez whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the remedy
section of the judge’s decision.
(c) Compensate Steven Ramirez for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 16
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years.
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge of Steven Ramirez and within 3 days thereafter,
notify him in writing that this has been done and that the
discharge will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place de-
signed by the Board or its agents, all payroll records,

10 We rely on the same rationale in adopting the judge’s dismissal of
the allegation that the Respondent violated Sec. 8(a)(1) in discharging
employee Rogelio Morales. Even accepting the judge’s crediting of
Morales’ testimony that he did not participate in the lewd and offensive
conversation with employee Bert Arnes in the presence of a customer,
the Respondent established that it reasonably believed the customer’s
complaint that Morales willingly participated in the conversation and
that it discharged him for that reason and not for his protected activity
in joining the FLSA lawsuit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
social security payment records, timecards, personnel
records and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its metropolitan Houston, Texas facilities copies of the
attached notice marked “Appendix.”11 The notices shall
be posted in English, Spanish, and any other language
deemed necessary by the Regional Director. Copies of
the notice, on forms provided by the Regional Director
for Region 16, after being signed by Respondent’s au-
thorized representative, shall be posted by Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an internet or an internet
site, and/or other electronic means, if Respondent cus-
tomarily communicates with its employees by such
means. Reasonable steps shall be taken by Respondent
to ensure that the notices are not altered, defaced, or cov-
ered by any other material. If Respondent has gone out
of business or closed any of its restaurants, Respondent
shall duplicate and mail, at its own expense, a copy of
the notice to all current and former employees employed
by Respondent at any time since September 10, 2015.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 16 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the allegations pertaining
to: (1) the Respondent’s promulgation and maintenance
of its arbitration agreement and threat of lost employ-
ment if employees refused to sign the agreement, and (2)
the Respondent’s maintenance of allegedly overbroad
handbook rules, are severed from this case and retained
for future resolution.
Dated, Washington, D.C. April 26, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT terminate you because you engaged in
protected concerted activities, including participating in a
collective wage lawsuit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Steven Ramirez full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Steven Ramirez whole for any loss of
earnings and other benefits resulting from his unlawful
discharge, less any net interim earnings, plus interest,
and WE WILL also make him whole for reasonable search-
for-work and interim employment expenses, plus inter-
est.
WE WILL compensate Steven Ramirez for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 16 within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
CORDÚA RESTAURANTS, INC. 7
ful discharge of Steven Ramirez, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
CORDÚA RESTAURANTS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/16-CA-160901 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Laurie Duggan, Esq., for the General Counsel.
Daniel Ramirez, Esq. and Jacob Monty, Esq., for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
SHARON LEVINSON STECKLER, Administrative Law Judge.
This case was tried in Houston, Texas on June 27 through July
1, 2015. The three charging parties were servers at Respond-
ent Cordua’s restaurants (Respondent) and were involved in a
class action suit against the Respondent regarding payment of
wages pursuant to the Fair Labor Standards Act. Each was
terminated.
Charging Party Steven Ramirez (Ramirez) filed charge 16–
CA–160901 against Respondent Cordúa, Inc. (Respondent) on
September 24, 2015 and filed the amended charge on October
29.1 Charging Party Rogelio Morales (Morales) filed charge
16–CA–161380 on October 5. Charging Party Shearone Lewis
(Lewis) filed charge 16–CA–170940 on February 29, 2016 and
an amended charge on March 4, 2016. Lewis also filed charge
16–CA–173451 on April 6, 2016.
On January 28, 2016, General Counsel issued an Order Con-
solidating Cases, Consolidated Complaint, and Notice of Hear-
ing (Second Complaint) based upon the charges from Ramirez
and Morales. On May 31, 2016, General Counsel issued anoth-
er Order Consolidating Cases, Consolidated Complaint and
Notice of Hearing, which included allegations based upon Lew-
is’ charge. Respondent filed timely answers in which it denied
all wrongdoing.

1 All dates are in 2015 unless otherwise indicated.
The Second Complaint alleged the following violations of
Section 8(a)(1):
1. About September 10, Respondent terminated Ramirez be-
cause he concertedly complained about wages, hours and
terms and conditions of employment and concerted filed a
collective action complaint under the Fair Labor Standards
Act (FLSA) in federal district court.
2. About August 15, Respondent terminated Morales because
he concertedly joined the federal class action FLSA suit filed
by Ramirez.
3. Regarding Lewis, Respondent, because Lewis concertedly
joined the federal class action FLSA suit filed by Ramirez and
concertedly complained that she and other employees should
not be required to sign an arbitration agreement, took the fol-
lowing actions against Lewis:
a. About October 1, reduced the number of restaurant
patrons she served and reduced her shifts; and,
b. On April 5, 2016, terminated her.
4. Since about September 29, Respondent promulgated and
maintained an Arbitration Agreement to discourage employ-
ees from engaging in concerted activities.
5. About December 11, Respondent, at one of its restaurants,
threatened employees with:
a. Unspecified reprisals if they did not sign the arbitra-
tion agreement; and,
b. Not scheduling employees for work if they did not
sign the arbitration agreement.
On the last day of hearing, after Respondent closed its case
and before General Counsel presented rebuttal witnesses, Gen-
eral Counsel moved to amend the Second Complaint by adding
the following allegations:
1. Based upon the Employee Handbook, the following provi-
sions are unlawful:
a. Under “Standards of Conduct”, the provision stat-
ing “Conduct that is disruptive, non-productive, unpro-
fessional, is strictly prohibited.”
b. Under cause for Human Resources preventative
correction action process, the inclusion of “solicitation
on Company premises.”
c. “The following actions are cause for immediate
termination of employment, with or without warning
or prior notice:” . . .
i. “leaving Company premises or work location
during working hours without permission of your
supervisor”; and,
ii. “Committing other acts which tend to bring the
Company into disrepute.”
d. “The following are behaviors that may develop into
explicit violence in the workplace and are cause for a
corrective action up to and including termination:” . . .
“(i) Arguing.”
e. “Media and Press Relations”: “All questions from
the media and press regarding the Company’s business
must be directed to the COO. No other member of the
Company should discuss such matters with the media
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
and the press.” “Cellular telephones and pagers be-
longing to team members cause a disruption in busi-
ness. Likewise, the use of digital camera, including
the types that are included on some cellular phones,
are also prohibited. Team members are not allowed to
bring cellular phones or pagers to work, unless they
are company-issued.”
2. About July 2015, Respondent, by Damian Ambroa, en-
gaged in unlawful surveillance when it viewed and/or took
photographs of Steven Ramirez’ text messages, seen at R.
Exh. 8.
3. About August 2015, Respondent, by Rigo Romero, unlaw-
fully interrogated George Henderson.2
4. About September 2015, Respondent:
a. Orally promulgated and maintained an unlawful
rule that employee personnel files are confidential;
b. Unlawfully applied the above confidentiality rule to
the termination of Steven Ramirez; and,
c. By Fred Espinoza, unlawfully interrogated Steven
Ramirez.
5. About March 2016, Respondent, by Patricia Quinonez and
Damian Ambroa, unlawfully interrogated employees.
During the hearing, Respondent objected to the amendments
due to lack of notice that deprived Respondent of a full and fair
hearing on these matters. It additionally argued that the
amendments were beyond the statute of limitations. I requested
that both parties brief the propriety of the amendments and, just
in case they would be received, whether the amendments were
violations. Respondent, as part of its brief but without any
motion to include in the record, included additional documents
to support its arguments.
To better understand the allegations and my rulings regard-
ing General Counsel’s proposed amendments, I will provide a
discussion of the facts with analysis following closely after
each section. I first address jurisdiction and General Counsel’s
proposed amendments. Because I decide that the amendments
regarding the employee handbook are properly included, I ana-
lyze those rules. I also discuss Respondent’s latest arbitration
agreement.
The facts then show the Charging Parties were engaged in
protected concerted activities by joining a suit against Re-
spondent for alleged violations regarding wages. I then present
the facts of the alleged discriminatory actions against the al-
leged discriminatees and the alleged Section 8(a)(1) statement
to employees at Artista. I find that Respondent unlawfully
terminated Ramirez and Lewis in violation of Section 8(a)(1)
and that Respondent threatened employees with the statement
at Artista. I recommend dismissal of the remaining allegations.
After the hearing, the parties filed briefs, which I have care-
fully read and considered. Based upon those briefs and the
entire record, including the testimony of the witnesses and my
observation of their demeanor, I make the following:

2 General Counsel withdrew this allegation in the posthearing brief.
FINDINGS OF FACT3
I. JURISDICTION
At all material times, Respondent, a Texas corporation with
an office and place of business in Houston, Texas, has been
engaged in the operation of several retail restaurant facilities in
the Houston, Texas area. During the 12-month period ending
December 31, 2015, Respondent, in conducting its business
operations, derived gross revenues in excess of $500,000 and
purchased and received at its Texas facilities goods or services
valued in excess of $5000 which originated outside the State of
Texas. Respondent therefore is an employer engaged in com-
merce within the meaning of Section (2), (6) and (7) of the Act.
II. THE PROPOSED AMENDMENTS
In this section I review applicable law for Respondent’s ad-
ditional documents to the brief in support of its arguments for
exclusion of the amendments. I then examine the applicable
law of amendments and discuss the amendments in two catego-
ries: the published handbook rules; and the remainder of the
allegations, which are based upon testimony of witnesses.
A. Respondent’s Additional Documents, Attached to Its Brief
Respondent attached a few documents to its brief to support
its rationale for rejection of the amendments. General Counsel
moved to strike these documents after receipt of the brief as it
had no opportunity to cross-examine anyone in response to the
exhibits. Respondent filed a Response to General Counsel’s
Motion to Strike, and contended that extra-record evidence may
be cited and used in briefs. I find that Respondent failed to
move to reopen the record to add these documents and case law
supports a finding to strike these documents as they were not
part of the record.

3 Although I have included citations to the record to highlight partic-
ular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations, but rather upon my review and
consideration of the entire record for this case. My findings of fact
encompass the credible testimony, evidence presented, and logical
inferences. The credibility analysis may rely upon a variety of factors,
including, but not limited to, the context of the witness testimony, the
weight of the respective evidence, established or admitted facts, inher-
ent probabilities, and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB 303,
303–305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing
Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd.
56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings regarding any
witness are not likely to be an all-or-nothing determination and I may
believe that a witness testified credibly regarding one fact but not on
another. Daikichi Sushi, 335 NLRB at 622.
When a witness may reasonably be assumed to be favorably dis-
posed to the party, an adverse inference may be drawn regarding any
factual question on which the witness is likely to have knowledge.
International Automated Machines, 285 NLRB 1122, 1123 (1987),
enfd. 861 F.2d (6th Cir. 1988). This is particularly true where the wit-
ness is the Respondent’s agent. Roosevelt Memorial Medical Center,
348 NLRB 1016, 1022 (2006). Testimony from current employees
tend to be particularly reliable because it goes against their pecuniary
interests when testifying against their employer. Gold Standard Enter-
prises, 234 NLRB 618, 619 (1978); Georgia Rug Mill, 131 NLRB 1304
fn. 2 (1961); Gateway Transportation Co., 193 NLRB 47, 48 (1971);
Federal Stainless Sink Division, 197 NLRB 489, 491 (1972).
CORDÚA RESTAURANTS, INC. 9
Respondent misplaces reliance upon Horizon Contract Glaz-
ing, Inc., 353 NLRB 136 fn. 2 (2008). The two-member Board
denied motions to strike extra-record statements of the parties
because “[t]he challenged statements are in the nature of argu-
ments based either on record evidence, the judge’s decision, or
reasonable interpretations of record evidence.” Even if the case
had precedential value, none of the documents submitted by
Respondent are based upon record evidence, a judge’s decision
or any interpretation of record evidence. Id.
The situation here is also dissimilar to the cited Alaska Pulp
Corp., 325 NLRB 522 fn. 1 (1998), enfd. in part and remanded,
rev. and remanded in part sub nom. Sever v. NLRB, 231 F.3d
1116 (9th Cir. 2000). There a respondent moved to strike por-
tions of General Counsel’s answering brief because, according
to the respondent, the brief allegedly contained representations
of factual matters not included in the record. The Board found
the motion lacked merit as the record reasonably supported the
factual assertions the respondent sought for exclusion. Id.
General Counsel’s Motion to Strike included pertinent case
law. In Fund for Public Interest, 360 NLRB 877, 877 fn. 2
(2014), the Board struck portions of a respondent’s brief that
relied upon evidence not entered into the record. In United
Steelworkers, 356 NLRB 996 fn. 2 (2011), rev. denied sub
nom. PPG Industries, Inc. v. NLRB ̧ 460 Fed. Appx. 1 (D.C.
Cir. 2012), General Counsel moved to strike the union’s an-
swering brief for the portions discussing an arbitrator’s opinion
and award that were not in evidence, which the Board granted.
General Counsel also cited Birch Run Welding, 286 NLRB
1316 fn. 3 (1987). The Board granted General Counsel’s mo-
tion to strike certain factual representations in respondent’s
exceptions that were not presented as evidence and therefore
not included in the record, nor subject to cross-examination.
These cases demonstrate that evidence not in the record cannot
be added after the fact, particularly as Respondent failed to
move to reopen the record to add these documents.
I therefore strike the documents attached to Respondent’s
Brief to the Administrative Law Judge and any portion of the
brief that relies upon them. I now turn to the applicable law on
amendments.
B. Applicable Law on Amendments
An administrative law judge has wide discretion on accept-
ing amendments to a complaint upon terms that seem just.
Section 102.17 of the Board’s Rules and Regulations. The
factors examined are: (1) whether there was surprise or lack of
notice; (2) whether General Counsel offered a valid excuse for
its delay in moving to amend; and (3) whether the matter was
fully litigated. Stagehands Referral Service, LLC, 347 NLRB
1167, 1071–1072 (2006), enfd. 315 Fed.Appx. 318 (2d Cir.
2009).
In Stagehands, supra, General Counsel moved for an
amendment to the complaint for a hiring hall violation when
only one discriminate was named in the complaint. Timing was
significant as General Counsel did not amend as soon as it
knew of respondent’s actions but only after all witnesses had
testified and respondent rested. The Board declined to assume
that the lack of objective criteria used in the hiring hall process
related to respondent’s determination not to refer the discrimi-
nate and determined the amendment was prejudicial to re-
spondent. It dismissed the allegation without prejudice.
In dealing with General Counsel’s amendments, I examine
the amendments in two categories: allegations based upon the
rules included in Respondent’s Employee Handbook; and, alle-
gations based upon testimony adduces at hearing.
1. Handbook rules/policies
Respondent, throughout the hearing, objected to receipt of
the entire handbook as an exhibit as the handbook contained
rules that might be found unlawful. During hearing, Respond-
ent made clear that it did not want the Handbook entered into
evidence because the Board would look at the rules. Respond-
ent did not produce the Handbook pursuant to General Coun-
sel’s subpoena as the subpoena was somewhat limited and I did
not order it to be produced. General Counsel apparently resort-
ed to other sources to find it before the hearing was over and
moved for admission, which I granted.
Respondent relied upon “the Handbook” when questioning
former Assistant Manager Naomi Reichman about her conduct.
(Tr. 141–142.) However, it declined to enter any relevant por-
tions into evidence. Respondent entered into evidence portions
of the Handbook but also that the discriminatees’ signed state-
ments that a number of the handbook provisions were reviewed
when they were hired. It also cited to the sexual harassment
and racial harassment policies: Those were included in the
handbook too, but Respondent only submitted those policies
into evidence, rather than the Handbook as a whole.
In applying the 3 criteria in Stagehands, Respondent cannot
claim surprise: It stated on the record it did not want the rules in
the record because fault would be found with the rules. Gen-
eral Counsel was able to have the Handbook admitted on the
fourth day of the hearing. General Counsel did not allege any
disciplinary actions or discriminatory actions pursuant to the
Handbook provisions and only that the rules are facially unlaw-
ful. No testimony is needed to determine whether the rules,
which continue in effect, are facially unlawful. I therefore find
that these amendments are properly included in this proceeding
and are addressed below.
2. Amendments based upon testimony adduced at hearing
These allegations are based primarily upon Respondent’s
witnesses testimony. Some of the allegations, such as surveil-
lance of Reichman’s telephone and verbally making a new rule
about confidentiality of personnel files, relate to whether
Ramirez was lawfully terminated. Others involve new allega-
tions of interrogation in connection with the alleged termina-
tions.
Based upon the first factor in Stagehands, Respondent was
surprised to have the amendments proposed after the close of
its case. The third factor in Stagehands also supports Respond-
ent’s position. Although the proposed amendments are factual-
ly intertwined with this case, Respondent might have handled
the presentation of its case differently or recalled witnesses
before it closed had the amendments not been made before that
time. Consolidated Printers, Inc., 305 NLRB 1061, 1064
(1992). Similarly instructive is Bruce Packing Co. v. NLRB,
795 F.3d 18, 23–24 (D.C. Cir. 2015). The District of Columbia
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Court of Appeals stated that a critical issue with a late amend-
ment was whether the respondent was informed before the rec-
ord closed that it might be liable for the additionally alleged
conduct. General Counsel did not move to include its new
allegation regarding unlawful promises to its employees until
after Respondent closed. The respondent was not given an
opportunity to hone its case for the alleged unlawful statement
and may have questioned the witness differently.
I therefore deny admission of these amendments and dismiss
those without prejudice to any party’s right to file charges re-
garding these allegations. Stagehands, 347 NLRB at 1172 and
fn. 12.
III. RESPONDENT’S OPERATIONS
Respondent operates several Latin-themed restaurants in the
metropolitan Houston area: Churrascos; Americas; Artista; and
the Amazon Grill. It also operates a catering business. Chur-
rascos has five locations, including Sugarland and River Oaks.
Artista is unique among the restaurants because it provides
dinners to patrons who usually are scheduled to attend events at
the Hobby Arts Center, such as Broadway shows, private
events, award shows and concerts. On show nights, Artista
may have 200 or more clients to seat and serve within a short
period of time. In the summer, the Hobby Center tends to have
fewer shows, but Artista still serves lunch and dinners. Some
of its servers are designated for “VIPs.” The VIP servers are
known for their high quality of service. If slow, part-time em-
ployees are released from work first and the restaurant is
staffed with the full-time employees. Artista’s general manager
is Damian Ambroa, who supervises approximately 90 to 100
employees as part of his duties.
Servers at all locations wait tables and ensure guest satisfac-
tion. The servers also perform assigned side duties, such as
polishing glassware, rearranging party rooms, and refilling iced
teas, depending upon the location. Most of these duties are
performed before or after customers are in the restaurants. The
manager on duty usually assigned the side duties.
On the corporate side, Patricia Quinonez has held the posi-
tion of Respondent’s Human Resources Director since 2000.
She deals with all employee matters, including investigations,
payroll and benefits. She conducts investigations about every
to three months. Quinonez stated that Respondent does not
take notes of all investigations. She also testified that that Re-
spondent consistently follows its progressive discipline policy.
(Tr. 489.)
Quinonez reports to Fred Espinoza, Respondent’s chief op-
erating officer. The restaurants’ general managers also report
to him. Espinoza runs the day to day operations, purchasing,
and marketing. The persons who have the power to terminate
employees are the restaurants’ general managers, Espinoza and
Quinonez.
IV. HANDBOOK RULES
A. Applicable Law
“In determining whether a work rule violates Section 8(a)(1),
the appropriate inquiry is whether the rule would reasonably
tend to chill employees in the exercise of their Section 7
rights.” Hyundai America Shipping Agency, 357 NLRB 860
(2011). “Where the rules are likely to have a chilling effect on
Section 7 rights, the Board may conclude that their mainte-
nance is an unfair labor practice, even absent evidence of en-
forcement.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998)
(footnote omitted), enfd. 203 F.3d 52 (D.C. Cir. 1999). “In
determining whether a challenged rule is unlawful, the Board
must, however, give the rule a reasonable reading. It must re-
frain from reading particular phrases in isolation.” Lutheran
Heritage Village-Livonia, 343 NLRB 646 (2004).
If the rule explicitly restricts Section 7 rights, it is unlawful.
Id. at 646. If it does not, “the violation is dependent upon a
showing of one of the following: (1) employees would reasona-
bly construe the language to prohibit Section 7 activity; (2) the
rule was promulgated in response to union activity; or (3) the
rule has been applied to restrict the exercise of Section 7
rights.” Id. at 647.
Here, none of the handbook rules were promulgated in re-
sponse to union activity. General Counsel argues only that the
arbitration agreement was implemented due to Section 7 activi-
ty. The issue, then, with each rule is whether employees would
reasonably construe the language to prohibit Section 7 activity.
Ambiguous rules are construed against the drafter of the rule.
Flex Frac Logistics, LLC, 358 NLRB 1131, 1132 (2012), re-
manded on other grounds, 360 NLRB 1004 (2014), enfd. 746
F.3d 205 (5th Cir. 2014).4 The Board does not wait until chill
is apparent abut instead acts to dispel the rule before chill oc-
curs. Hooters of Ontario Mills, 363 NLRB No. 2, slip op. at 21
(2015), citing Flex Frac, supra. An ambiguous rule can chill
employees’ Section 7 protected activities by creating “a cau-
tious approach” to the activities because of fears of employer
retaliation. Whole Foods Market, Inc., 363 NLRB No. 87, slip
op. at 3 fn. 11 (2015). Therefore, all rules are examined to
determine whether an employee would reasonably construe the
language to prohibit Section 7 activities. Lily Transportation
Corp., 362 NLRB No. 54 (2015). The test for Section 8(a)(1)
violations is not subjective, but objective: “[W]hether [it]
would reasonably have a tendency to interfere with, restrain or
coerce employees in the exercise of their Section 7 rights . . . .”
See generally Multi-Ad Services, Inc., 331 NLRB 1226, 1227-
1228 (2000), enfd. 255 F.3d 363 (7th Cir. 2001). Also see
Whole Foods Market, 363 NLRB No. 87, slip op. at 2, citing
Triple Play Sports Bar, 361 NLRB 308, 314 (2014), enfd. 629
Fed.Appx. 33 (2d Cir. 2015).
Respondent contends that General Counsel has taken the
rules out of context, and when placed in context, they are law-
ful. As the following analysis demonstrates, in context a num-
ber of the rules violate Section 8(a)(1) of the Act.

4 The first Flex Frac decision was issued by a Board panel whose
members included two persons whose appointments to the Board were
eventually considered invalid. NLRB v. Noel Canning, __ U.S. __, 134
S.Ct. 2550 (2014). Before Noel Canning issued, the United States
Court of Appeals for the Fifth Circuit enforced the Board’s Order. No
question exists about the validity of the court’s judgment. See Lily
Transportation Corp., 362 NLRB No. 54, slip op. at 1 fn. 2 (2015).
CORDÚA RESTAURANTS, INC. 11
B. Under “Standards of Conduct”, the Provision Stating
“Conduct that is disruptive, Non-productive, Unprofessional, is
strictly prohibited.”
The three types of behavior are not further defined. “Disrup-
tive” conduct is imprecise and may include disputes between
employees about Section 7 topics. First Transit, Inc., 360
NLRB 619, 621 (2014). Recently the Board affirmed a finding
that a rule prohibiting “boisterous or other disruptive activity in
the workplace” was unlawful. Component Bar Products, Inc.,
364 NLRB No. 140, slip op. at 1, fn. 1 and slip op. at 11
(2016). Also see Purple Communications, Inc. 361 NLRB 575,
575, 580 (2014) (creating disruption during working hours on
company property found unlawful).
Similarly, employees reasonably would view talking about
Section 7 topics as “non-productive.” The rule does not distin-
guish between poor work habits versus discussions of protected
activity during break time. Because the rule provides no guid-
ance regarding about specific types of conduct not permitted,
the rule is overly broad. See generally First Transit, 360
NLRB 619, 620.
However, I find that employees should know what unprofes-
sional conduct is and is not so broad that employees would not
be able to distinguish between Section 7 activities and profes-
sional conduct at work.
C. Solicitation Rule
The Human Resources preventative correction action process
will be applied for “solicitation on Company premises.” (GC
Exh. 15 at 12.)
The rule is indeed overly broad. Solicitation and distribution
are not the same in the legal sense. Traditionally “solicitation
and distribution of literature or different organizational tech-
niques and their implementation pose[d] different problems
both for the employer and for employees.” Stoddard-Quirk
Mfg. Co., 138 NLRB 615, 619 (1962) (emphasis in original).
Solicitation is viewed as an oral request; distribution is consid-
ered handing out literature. Id. at 617–618. Here, Respond-
ent’s rule only covers solicitation.
Rules prohibiting solicitation during working time are pre-
sumptively lawful because “. . . that term denotes periods when
employees are performing actual job duties, periods which do
not include the employee’s own time such as lunch and break
periods.” Our Way, 268 NLRB 394, 394–395 (1983). An em-
ployee may solicit for Section 7 concerns outside of working
hours. Cooper Tire & Rubber Co. v. NLRB, 957 F.2d 1245,
1249, reh’g denied 968 F.2d 18 (5th Cir. 1992), cert. denied
506 U.S. 985 (1992). Thus, a solicitation rule is presumptively
invalid when solicitation is prohibited during the employee’s
own time. Our Way, 268 NLRB at 394.
An employer may ban solicitation in working areas during
working time; however, in most work sites the ban cannot be
extended to working areas during nonworking time. UPS Sup-
ply Chain Solutions, Inc., 357 NLRB 1295, 1296 (2011). Res-
taurants are an exception due to the nature of the business. The
right of employees to solicit must be balanced against the em-
ployer’s right to maintain discipline in such an establishment.
Double Eagle Hotel & Casino v. NLRB, 414 F.3d 1249, 1253
(10th Cir. 2005) enfg. as modified 341 NLRB 112 (2004), cert.
denied 546 U.S. 1170 (2006). When applied to restaurants and
entertainment venues, an employer may lawfully prohibit solic-
itation in areas open to the public. Dunes Hotel, 284 NLRB
871 (1987). Also see Beth Israel Hospital v. NLRB, 437 U.S.
483, 506 (1978) (primary purpose of restaurants is to serve
customers, but restaurants have non-public areas in which solic-
itation of non-working employees must be permitted); Restau-
rant Corp. of America v. NLRB, 827 F.2d 799 (D.C. Cir. 1987).
Respondent does not define premises and makes no distinc-
tion between non-working areas and working areas that are
open to the public. It also fails to distinguish between working
time versus non-working time, which also is an impermissible
restriction on employees’ rights. Casino San Pablo, 361 NLRB
1350, 1352–1353(2014), citing Our Way, supra, and Stoddard-
Quirk, supra. Because an employee would not know the differ-
ence in premises, an employee would interpret “premises” to
the entire facility, instead of non-working areas. Prohibition of
solicitation in non-work areas during non-working times is
unlawful, even in these venues. Dunes Hotel, supra, fn. 1.
Also see: Turtle Bay Resorts, 353 NLRB 1242, 1270–1271
(2009), enfd. sub nom. Oaktree Capital Management, L.P. v.
NLRB, 452 Fed.Appx. 433 (5th Cir. 2011). The rule therefore
violates Section 8(a)(1) of the Act.
D. Rules Prohibiting Leaving Without Permission and
Creating Disrepute for Respondent
The rules state:
The following actions are cause for immediate termination of
employment, with or without warning or prior notice: (These
are only examples and are not intended to be all inclusive) . . .
 Leaving Company premises or work location
during working hours without permission of
your supervisor; . . .
 Committing acts of dishonesty towards the
Company, its customers, and other Team Mem-
bers, organizations servicing the Company or
committing other acts which tend to bring the
Company into disrepute . . . .
(GC Exh. 15 at 12) (italics and underline in original).
1. Leaving premises or work location
The rule about leaving the work premises or work location
during working hours is unlawful. The situation is not limited
to working time, but the broader working hours, which includes
employee breaks and meal times. Purple Communications, 361
NLRB 1050 (2014).
The rule does not state that an employee cannot take unau-
thorized leaves or breaks. 2 Sisters Food Group, 357 NLRB at
1817–1818. Instead, the rule limits leaving at any time, which
employees reasonably would construe to prohibit a Section 7
activity, such as a walk-out strike. Labor Ready, Inc., 331
NLRB 1656 fn. 2 (2000).
2. Acts tending to bring Respondent into disrepute
General Counsel alleges only the portion of the rule that dis-
cussed bringing the company into disrepute, not the first part of
the rule about committing action of dishonesty. However, the
rule about other conduct bringing the company into disrepute is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
unlawful.5
In reading the rule as a whole, the rule is remains vague
about the “other acts.” The concept of dishonesty could be as
wide as stealing or bribery, but “other acts” involving disrupte
is a wide, unexplained gulf. An employee would reasonably
interpret that Section 7 activities, such as bringing to light wage
disputes or lawful picketing, would be prohibited. In Schwan’s
Home Service, Inc., 364 NLRB No. 20, slip op. at 5 (2016), a
rule prohibiting any conduct, whether on or off duty, that could
be detrimental to the employer’s interests or reputation was
unlawful. The rule, like here, gave too much discretion to the
employer to determine what grounds an employee would suffer
consequences for action, including those covered by Section 7.
Id. Also see First Transit Inc., 360 NLRB 619, 620 fn. 5 (rule
prohibiting outside activities detrimental to employer’s imagine
or reputation or conducting one’s self outside working hours in
a way detrimental to employer reputation or interest unlawful).
Even including the portion about dishonesty, the rule also
does not differentiate between conduct that is permissible and
the extreme of defamatory conduct. The “mere fact that state-
ments are false, misleading or inaccurate” is not sufficient to
remove the employees from the protection of the Act. Valley
Hospital Medical Center, Inc., 351 NLRB 1250, 1252 (2007),
enfd. 358 Fed.Appx. 783 (9th Cir. 2009). Because the rule
makes no differentiation, it is unlawful. Chipotle Services LLC
d/b/a Chipotle Mexican Grill, 364 NLRB No. 72, slip op. at 1
fn. 3 and slip op. at 9 (2016). Also see: NLRB v. Elec. Workers
Local 1229 (Jefferson Standard), 346 U.S. 464, 476–477
(1953) (communications may be disloyal when not connected
to ongoing labor dispute); Linn v. United Plant Guard Workers
of America, Local 114, 383 U.S. 53, 61 (1966) (statement
would be defamatory is made with knowledge of falsity or
reckless disregard for its truthfulness).6
Respondent argues that the rule as a whole does not demon-
strate an unlawful meaning. Tradesmen International, 338
NLRB 460, 461 (2002). However, Tradesmen was differentiat-
ed in Hills and Dales General Hospital, 360 NLRB 611, 612
(2014). In Tradesmen, the rule included the caveat of conflicts
of interest that required employees to represent the employer in
a positive and ethical manner. As in Hills and Dales, the rule
includes no such caveat. Also see Quicken Loans, Inc. v.
NLRB, 830 F.3d 542, 550 (D.C. Cir. 2016) (non-disparagement
rule “flies in the teeth of Section 7”), enfg. 361 NLRB 904
(2014).

5 Under cause for immediate termination of employment, Respond-
ent also maintains a rule prohibiting “misrepresentation or an exaggera-
tion of the truth.” (GC Exh. 15 at 12.) General Counsel did not allege
this rule as a violation and I make no finding here.
6 Costco Wholesale Corp., 358 NLRB 1100, 1101 (2012), although
not precedential, is persuasive. The rule there involved “statements that
damage Costco.” The Board stated that this type of rule, which did not
have any provisions to show that protected activities were excluded
from the rule’s ambit, was unlawful. A number of cases were cited to
support these propositions, inter alia: Southern Maryland Hospital,
293 NLRB 1209, 1222 (1989), enfd. in relevant part 916 F.2d 932, 940
(4th Cir. 1990); Claremont Resort & Spa, 344 NLRB 832 (2005); and,
Beverly Health & Rehabilitation Services, 332 NLRB 347, 348 (2000),
enfd. 297 F.3d 468 (6th Cir. 2002).
In addition, Respondent also argues that disparaging Re-
spondent’s products is not protected under the Act. St. Luke’s
Episcopal-Presbyterian Hospital v. NLRB, 268 F.3d 575, 580
(8th Cir. 2001), denying enf. 331 NLRB 761 (2000). The
Board’s findings, to which I am bound, determined that the
employer hospital violated Section 8(a)(3) when it terminated
an obstretric nurse, involved in organization efforts, for speak-
ing out to a local television station about inadequate staffing
levels in her department that could affect the health and safety
of mothers and infants. The hospital’s defense was that fellow
employees did not want to work with her because of her pro-
tected activities, which was an unlawful consideration, and
were her statements were not disloyal, reckless, or maliciously
false. 331 NLRB at 761–762. The Eighth Circuit’s determined
the nurse was not engaged in protected activity by making the
statement because the statement was materially false and mis-
leading. 268 F.3d at 580–581. In defining how the nurse ex-
ceeded the protection of the Act, the court stated that an em-
ployee loses protection of the Act by appealing to the public
through information “with reckless disregard of its truth or
falsity.” Id. at 580, citing Montefiore Hosp. & Med. Ctr. v.
NLRB, 621 F.2d 510, 517 (2d Cir. 1980).
The Eighth Circuit decision in St. Luke’s does not clear Re-
spondent’s rule: The rule still does not distinguish between a
defamatory statement and permissible protected conduct. I
therefore find this rule unlawful. Chipotle, supra.
E. Rule Prohibiting Arguing
The rule is part of the policy entitled “Violence in the Work-
place.” The rule states initially that Respondent intends to
provide a safe workplace and does not tolerate any workplace
violence against employees or by employees, including threats
and violence itself.
The pertinent part of the allegation is: “The following are
behaviors that may develop into explicit violence in the work-
place and are cause for a corrective action up to and including
termination:” . . . “(i) Arguing.” (GC Exh. 15 at 18–19.) Oth-
er behaviors on the list include ambiguous threats, indirect
threats, displaying symbols associated with hostile or violent
groups, invading personal space, glaring, cornering people,
swearing, humiliating others, and losing emotional control. Id.
Respondent argues that, as part of the violence in the work-
place policy, which also prohibits banning weapons in the
workplace, makes the rule lawful and that an employee reason-
ably would not find the rule to be construed any other way.7
However, on its face, the rule is overly broad as employees
would not know what discussion was permissible under Section
7. Employees have the right to discuss workplace conditions
but it is no guarantee that a protected discussion will not “in-
temperate, abuse and inaccurate statements.” Linn v. United

7 Respondent cites a laundry list of acceptable phrases, such as
threats of violence, displaying violent symbols and glaring, cited in
General Counsel Memorandum 15-05. General Counsel memoranda
are neither precedential nor binding upon the Board. National Dance
Institute-New Mexico, Inc., 364 NLRB No. 35, slip op. at 12 fn. 26
(2016); Atelier Condominium, 361 NLRB 966, 1004 (2014), enfd. 653
Fed.Appx. 62 (2d Cir. 2016); Fun Striders, Inc., 250 NLRB 520 fn. 1
(1980); Youngstown Sheet & Tube Co., 235 NLRB 572, 575 (1978).
CORDÚA RESTAURANTS, INC. 13
Plant Guards, 383 U.S. 53 (1966). Prohibiting employees from
arguing here is in the broadest sense and not limited to dealing
with customers. Employees who read this rule reasonably
would “steer clear” of employment controversies, criticisms of
the employer, and perhaps “less than positive” statements, all of
which are protected activity. T-Mobile, 363 NLRB No. 171,
slip op. at 2–3 (2016) and cases cited therein. The rule has a
similar effect to those requiring employees to work harmoni-
ously when the term harmoniously was not defined. 2 Sisters
Food Group, Inc., 357 NLRB 1816, 1817 (2011). Compare
Copper River of Boiling Springs, LLC, 360 NLRB 459, 459 fn.
3 (2014) (differentiating non-violative rule because it included
effects upon guests). The rule is part of a list, but the list does
nothing to define what arguing would be and would be there-
fore “attenuated.” Schwan’s Home Services, 364 NLRB No.
20, slip op. at 5; Casino San Pablo, 361 NLRB 1350, 1352
(2014) (rule prohibiting disrespectful conduct unlawful despite
pairing with insubordination).
As a result, reasonable employees would not know what “ar-
guing” would lead to explicit violence and would preclude
employees from engaging in vigorous discussions of Section 7
issues.
F. Rule Prohibiting Contacts with Media and Press Relations
The rule states:
In order to assure accuracy, all questions from the media and
press regarding the Company’s business must be directed to
the COO. No other member of the Company should discuss
such matters with the media and the press.
(GC Exh. 15 at 19.)
Rules that prohibit employees from talking about wages,
hours and terms and conditions of employment to third parties
are unlawful. Schwan’s Home Service, Inc., 364 NLRB No. 20,
slip op. at 3–4 (2016); Victory Casino Cruises II, 363 NLRB
No. 167 (2016). Also see Eastex, Inc. v. NLRB, 437 U.S. 556,
565 (1987). Employees “have a clear right” to publicize em-
ployment issues and disputes. Schwan’s, supra. This rule pre-
cludes all contact with the media and press.
The rule’s use of the term “business” does not indicate
whether it applies to proprietary information or the protected
subjects of wages, hours and terms and conditions of employ-
ment. Employees are not required to guess the meaning or risk
their jobs to do so as the ambiguous term is construed against
the promulgator of the rule. Whole Foods Market, 363 NLRB
No. 87, slip op. at 2. The media relations policy is overly broad
and therefore violates Section 8(a)(1) of the Act.
G. Rule Prohibiting Personal Cell Phones, Pagers and
Recording at Work
This rule states:
Cellular telephones and pagers belonging to team
members cause a disruption in business. Likewise, the use
of digital camera, including the types that are included on
some cellular phones, are also prohibited. Team members
are not allowed to bring cellular phones or pagers to work,
unless they are company-issued.
(GC Exh. 15 at 20.)8
The rule is unlawful in two aspects: First, it prevents em-
ployees from bringing their cell phones to work at all. Second-
ly, it prohibits use of recording equipment, such as the camera
in the phone.
The first aspect of the policy does not give any rights to use
the devices because they may not be brought to work. Whole
Foods Market, 363 NLRB No. 87, slip op. at 3. Employees
reasonably would understand that they cannot conduct Section
7 activities during break times or lunch periods on their phones,
similar to the reasoning in the solicitation rule.
The second aspect is prohibition of recording by camera.
The rule has no safe harbor for protected activities. A reasona-
ble employee would interpret the rule as prohibiting protected
activities, which might include recording of protected picket-
ing, documenting unsafe working conditions, documenting
discussions about terms and conditions of employment or doc-
umenting inconsistent application of employer rules. T-Mobile,
363 NLRB No. 171, slip op. at 4 (2016), citing Whole Foods,
363 NLRB No. 87, slip op. at 3 and Rio All-Suites Hotel &
Casino, 362 NLRB No. 190, slip op. at 4 (2015). Respondent’s
brief acknowledges that employees may record or photograph
when engaged in protected concerted activity. However, this
rule does not consider whether employees could use the phone
during non-working time, such as before or after a shift. Be-
cause employees reasonably would not understand they could
record under circumstances other than scheduled breaks, the
rule chills employees who wish to exercise their Section 7
rights and therefore violates Section 8(a)(1) of the Act. Whole
Foods Market, supra, citing Rio All-Suites Hotel, 362 NLRB
No. 190, slip op. at 5.
V. RESPONDENT MAINTAINED UNLAWFUL REQUIREMENTS
FOR ARBITRATION
On September 29, 2015, Respondent introduced the follow-
ing arbitration agreement and required all employees to sign the
agreement. This agreement superceded a lengthier arbitration
agreement that had no specific provisions that allowed employ-
ees to access the processes of the Board and denied employees
the right to maintain class action suits and arbitrations. How-
ever, it permitted collective action. (Jt. Exh. 1.)
The new arbitration agreement states:
I agree to arbitrate and resolve any and all employment-
related disputes between the Company and affiliate entities
and myself. I understand that the consideration for this
Agreement is my employment, or continued employment,
with the Company and the different benefits that go along
with employment with the Company, including the prom-
ises and commitment made in this Agreement. I under-
stand that the purpose of this Agreement is to provide
both the Company and myself a way in which claims or
disputes may be resolved by binding arbitration rather than
litigation in recognition of the fact that resolution of any
differences in the courts is rarely time or cost effective for

8 Under corrective/preventative action, Respondent also maintains a
rule against use of a personal cellular phone while on the clock. (GC
Exh. 15 at 12.) I make no ruling as it was not alleged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
either party, the Company and I have entered into this
Agreement to establish and gain the benefits of a speedy,
impartial, and cost-effective dispute resolution procedure. I
understand that arbitration is for the purpose of resolving
disputes between me and the Company. As such, I agree
that I am waiving my right to file, participate or proceed in
class or collective actions (including a Fair Labor Stand-
ards Act (“FLSA”) collective action) in any civil court or
arbitration proceeding, including but not limited to receiv-
ing or requesting notice from a pending collective action,
to the extent permitted by law. Therefore, I agree that I
cannot file or opt-in to a collective action under this
Agreement, unless agreed upon by me and the Company
in writing. In no way does this waiver of class and collec-
tive actions preclude the consolidation of my claim and
other employees’ claims within a single arbitration pro-
ceeding to promote efficiency and cost-effectiveness. Ad-
ditionally, in no way does this Agreement serve to pre-
clude me from bringing an unfair labor practices claim
against the Company pursuant to the National Labor Rela-
tions Act.
(Jt. Exh. 2.)
General Counsel cites D.R. Horton, Inc., 357 NLRB 2277
(2012) and Murphy Oil, 361 NLRB 774 (2014). Respondent
relies upon the Fifth Circuit decisions denying enforcement of
these Board decisions. D.R. Horton v. NLRB, 737 F.3d 334,
359–360 (5th Cir. 2013); Murphy Oil USA, Inc. v. NLRB, 808
F.3d 1013 (5th Cir. 2015).
The September 29 arbitration agreement is unlawful because
it precludes class and collective actions unless Respondent
agrees. This agreement, promulgated after the Region initially
issued complaint, directs its attentions to collective action pur-
suant to the FLSA. The prior agreement actually permitted
some collective action with opt-ins, but now Respondent re-
moved that privilege. As a result, employees are required to
waive their rights to collective action, which is a core right
pursuant to the Act. Murphy Oil, 361 NLRB 774, 780–781.
The requirement that Respondent agree to a possible joinder
means any efforts to do remain squarely within Respondent’s
control; it therefore would preclude employees from pursuing
such claims, which also makes the agreement unlawful. 24
Hour Fitness, 363 NLRB No. 84, slip op. at 2 (2015). Also see
California Commerce Club, Inc., 364 NLRB No. 31 (2016);
Solarcity Corp., 363 NLRB No. 83 (2015).
The Supreme Court and the Board are the only authorities
that may reverse Board precedent. Until such action occurs, I
am bound to uphold the Board’s controlling precedent. Chesa-
peake Energy Corp., 362 NLRB No. 80 (2015); Pathmark
Stores, 342 NLRB 378 fn. 1 (2004). In addition, other circuits
found that the Federal Arbitration Act did not apply to exercise
of Section 7 rights and found prohibiting class action remedies,
such as those under the FLSA, unlawful. Lewis v. Epic System
Corp.,9 823 F.3d 1147 (7th Cir. 2016), petition for cert. No. 16-
285 September 2, 2016; Morris v. Ernst & Young, 834 F.3d 975

9 This case provides additional guidance for finding that an arbitra-
tion agreement requirement to waive class and collective claims is
unenforceable.
(9th Cir. 2016), petition for cert. No. 16-300 September 8,
2016. Also see: 24 Hour Fitness USA Inc. v. NLRB, 2016 WL
3668038 (5th Cir. 2016), revg. 363 NLRB No. 84 (2015), peti-
tion for cert. No. 16-701 filed November 23, 2016.
I therefore find the arbitration agreement unlawful because
the Board’s precedence in Murphy Oil is unchanged and re-
mains controlling Board law. Manor West, Inc., 311 NLRB
655, 667 fn. 43 (1993).
General Counsel also contends that Respondent enacted the
change in the arbitration agreement due to the employees’ pro-
tected concerted activities of participating in a wage suit against
Respondent. Respondent made the change after the employees
filed their action, making it likely that Respondent took action
in response to the employees’ protected activities of pursuing
collective action in the FLSA suit (see below). However, this
additional finding would not make the arbitration agreement
any more unlawful than it already is.
VI. THE CHARGING PARTIES ENGAGED IN PROTECTED
CONCERTED ACTIVITY
In this section, I discuss the applicable law that defines pro-
tected concerted activity, the facts surrounding the charging
parties’ involvement in a lawsuit against Respondent, and pro-
vide analysis.
A. Applicable Law
Section 7 of the Act explicitly states that employees have the
right to engage in concerted activities for the purpose of “mutu-
al aid and protection.” This right is not exclusive to employ-
ees’ collective bargaining activities. Eastex, Inc. v. NLRB, 437
U.S. 556, 564–565 (1978). Employees may work together to
improve their wages and terms and conditions of employment.
Meyers Industries (Meyers II), 281 NLRB 882, 883–884 (1986)
affd. 835 F.2d 1481 (D.C. Cir. 1987), cert. denied, 487 U.S.
1205 (1988).
The Board has consistently defined concerted activity as en-
compassing the lone employee who is acting for or on behalf of
other workers, or one who has discussed the matter with fellow
workers, or one who is acting alone to initiate group action,
such as bringing group complaints to management’s attention.
Kvaerner Philadelphia Shipyard, 346 NLRB 390 (2006), citing
NLRB v. City Disposal Systems, 465 U.S. 822 (1984); Meyers
Industries (II), 281 NLRB 882 (1986); Globe Security Systems,
301 NLRB 1219 (1991); and Alaska Pulp Corp., 296 NLRB
1260 (1989), enfd. 944 F.2d 909 (9th Cir. 1991).
B. Facts: The Charging Parties are Involved in FLSA Action
The three charging parties were all servers employed by Re-
spondent at its various restaurants at different times. Charging
Party Ramirez noticed that his pay checks seemed unchanged,
even when he had served more patrons. He talked with other
servers and busboys about their pay checks. They consulted
with an attorney about the differences. As a result, on January
23, Charging Party Ramirez, with six other servers and bus-
boys, filed a collective action pursuant to the Fair Labor Stand-
ards Act (FLSA) and the Texas Minimum Wage Act (TMWA)
in federal district court against Respondent and its owner
(FLSA action). The action sought damages in back pay, liqui-
dated damages, attorneys’ fees and court costs for Respondent’s
CORDÚA RESTAURANTS, INC. 15
alleged willful failure to pay overtime to its employees. (GC
Exh. 2.)
In late January, Quinonez received notice of the FLSA suit
and notified Espinoza. Quinonez notified Ramirez’ general
manager at Churrascos River Oaks, but told the remaining gen-
eral managers in July at a meeting. Charging Parties Rogelio
Morales and Shearone Lewis joined the FLSA action on June
18. (GC Exh. 5.)
About 1 month after the general managers’ meeting, the gen-
eral manager at Sugarland, Rigo Romero, called Quinonez
about the suit and asked who from his restaurant was participat-
ing; about a week after Romero called, the general manager at
Artista, Damian Ambroa, called Quinonez with the same re-
quest. Quinonez advised each general manager which employ-
ee, including the charging parties, were participating in the
FLSA action.
Respondent moved to compel Ramirez and the other em-
ployees into binding arbitration because the employees signed
arbitration agreements as part of their terms of employment, to
which the employees agreed. (GC Exh. 3.) By November, 27
employees joined the collective action.
The Alleged Discriminatees’ FLSA Action Is Protected
Concerted Activity
When employees seek to work for “mutual aid and protec-
tion,” they are not limited to approaching the employer for
assistance. Eastex, 437 U.S. at 565. Such activity is protected
so that employees can work together to improve their working
conditions. Id. at 566–567. They are protected from retaliation
from an employer if resorting to “judicial forums.” Id. at 566
(cites omitted). Civil actions by employees are protected ac-
tivity. Le Madri Restaurant, 331 NLRB 269, 275–276 (2000)
(suit alleged failing to pay minimum wages, overtime, unlaw-
fully made deductions for tips and cash losses, and misappro-
priated tips). U Ocean Place Pavilion, Inc., 345 NLRB 1162,
1170 (2005) (employees’ FLSA suit alleging failure to pay
overtime, wages and tips). Filing a FLSA action, even if done
by one employee on behalf of a group, is considered collective
action as it contemplates group participation. Beyoglu, 362
NLRB No. 152, slip op. at 1–2 (2015). Discussions with fellow
employees about such allegations also constitute concerted
activity. East Village Grand Sichuan Inc. d/b/a Grand Sichuan
Restaurant, 364 NLRB No. 151, slip op. at 1 fn. 2 (2016).
Here, Ramirez initially filed the suit about wages and was
not alone in his action. He was joined by a number of employ-
ees, including Morales and Lewis. The FLSA action consti-
tutes protected concerted activity by these employees.
VII. APPLICABLE LAW FOR THE REVIEW OF THE CHARGING
PARTIES’ ALLEGED DISCRIMINATION
The Complaint alleges that Respondent terminated the
Charging Parties individually for their protected concerted ac-
tivities. Terminating an employee for protected concerted activ-
ity is unlawful. Citizens Investment Services Corp. v. NLRB,
430 F.3d 1195, 1197 (D.C. Cir. 2005), enfg. 342 NLRB 316
(2004). Similarly, an employer may not terminate an employee
as a preemptive strike for the perception that an employee will
engage in protected concerted activity. Parexel Int’l, 356
NLRB 516, 519 (2001). As we are reminded:
The Act protects all employees, not just exemplary
employees, from adverse action by an employer based on
their protected activity. In cases like this, in which there
may be lawful grounds for discipline, it is our job to de-
termine whether the alleged discriminatee was indeed dis-
ciplined because of his protected activity, using the analyt-
ical tools developed by the Board over its many years of
enforcing this provision of the Act, with the approval of
the courts.
Alternative Energy Applications, Inc., 361 NLRB 1203, 1207
(2014).
Where arguably more than one motive exists for alleged dis-
criminatory action for protected concerted activity, a mixed
motive analysis is applied. The analysis is set forth in Wright
Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). Also see MCPc v. NLRB, 813 F.3d 475, 489–490 (3d
Cir. 2016), affg in rel. part 360 NLRB 216 (2014). Under
Wright Line, the General Counsel must first demonstrate, by a
preponderance of the evidence, that the worker’s protected
conduct was a motivating factor in the adverse action. The
General Counsel satisfies this initial burden by showing: (1) the
individual’s protected activity; (2) employer knowledge of such
activity; and (3) animus. If the General Counsel meets his ini-
tial burden, the burden shifts to the employer to prove that it
would have taken the adverse action, even absent the protected
activity. See, e.g., Mesker Door, 357 NLRB 591, 592 (2011).
The employer cannot meet its burden merely by showing that
it had a legitimate reason for its action; rather, it must demon-
strate that it would have taken the same action in the absence of
the protected conduct. Bruce Packing Co., 357 NLRB 1084,
1086–1087 (2011); JCR Hotel, Inc. v. NLRB, 342 F.3d 837, 841
(8th Cir. 2003). If the employer’s proffered reasons are pre-
textual (i.e., either false or not actually relied on), the employer
fails to show that it would have taken the same action for those
reasons regardless of the protected conduct. Metropolitan
Transportation Services, 351 NLRB 657, 659 (2007). An em-
ployer fails to meet its rebuttal burden when the evidence
shows that it tolerated an employee’s shortcomings until the
employee engaged in protected activity. Global Recruiters of
Winfield, 363 NLRB No. 68 (2015) (Hirozawa, concurrence),
citing Diversified Bank Installations, 324 NLRB 457, 476
(1997). The trier of fact may not only reject a witness story,
but also determine that the truth is the complete opposite.
Boothwyn Fire Company No. 1, 363 NLRB No. 191, slip op. at
7 (2016).
VIII. CHARGING PARTY STEVE RAMIREZ IS DISCHARGED
Ramirez worked at various Respondent restaurants between
September 2012 until his termination on September 10, 2015.
He worked at Churrascos River Oaks until March 2015, when
he transferred to Artista. Quinonez informed Claudia Navas,
the River Oaks general manager, about the suit and instructed
Navas not to retaliate against him. Quinonez further instructed
the manager to direct any questions about the suit and obtaining
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
payroll records to Human Resources.
Ramirez said he felt the transfer to Artista was necessary as
he believed the managers were talking about retaliatory action.
Although his transfer form states he requested the transfer for
scheduling, he denied telling anyone in management that he
had scheduling issues, nor did he mention that he believed
management was harassing him. However, HR Manager Qui-
nonez and General Manager Navas both testified that Ramirez
said the transfer was better for his schedule.
About May, while working at Artista, Ramirez discussed the
lawsuit with servers, busboys and bartenders in the restaurant
and parking lot. When employees asked about the suit, he di-
rected them to the attorney handling the matter, Tran. In about
July 2015, Artista General Manager Ambroa also asked Qui-
nonez about the suit and who was involved from his unit. He
could not recall whether Quinonez told him about Ramirez’
involvement; Quinonez did tell him that Charging Party Lewis
was involved with the action. Ambroa learned about Ramirez’
involvement with the FLSA action from employees Rubi Gar-
za, Daniel Perez and Vincente Cardenas. Ambroa then advised
Assistant Manager Naomi Reichman.10
Ramirez contends that, in May, his manager at Artista alleg-
edly forced him to transfer to Churrascos in Sugarland on Me-
morial Day weekend. Ramirez recalled the date due to a flood
the following day. Reichman notified Ramirez that he would
be transferred to Sugarland. Reichman told him that she said
she would agree that he could work in Sugarland for two
months and transferring back to Artista. Reichman reported to
Damian Ambroa, the Artista general manager. Ambroa denied
that Respondent could make anyone transfer to another restau-
rant and demonstrated that a server working at Artista during
that summer would have had fewer opportunities to earn, given
the seasonality and the number of shows at the Hobby Center.
(Tr. 962–963; R. Exh. 26.)
Ramirez did not speak with Churrascos Sugarland General
Manager Rigo Romero about the transfer and did not call the
Human Resources office either. Romero recalled he was con-
tacted by his banquet coordinator, who told him Ramirez want-
ed to pick up shifts. (Tr. 1121–1122.)
Ramirez knew of no other employee who was required to
transfer. While working at Churrascos Sugarland, he continued
to talk with employees in person or by telephone texting about
the collective action. Ramirez again directed these employees
to Attorney Tran. He worked at this location until his termina-
tion on September 10. In the meantime, Ramirez kept in touch
with Assistant Manager Reichman to work extra shifts at
Artista. Between May and Ramirez’ termination in September,
six employees from Sugarland joined the collective action;
before that time, none were involved. (GC Exh. 5.)
As previously noted, Quinonez notified other general man-
agers about the collective action in July. Approximately one
month after Quinonez notified the general managers, Rigo
Romero called Quinonez about the suit. According to Qui-
nonez, he wanted to know what to do if employees came to him

10 During the course of events, Reichman married and changed her
name. For consistency in this decision, the last name Reichman is
used.
about the suit and wanted to check the records. (Tr. 379.) He
also was advised of which employees were involved in the
FLSA action.
Ramirez also noted that, in August and September, he was
required to stay late to perform side duties at least every other
Friday and Saturday until 2 a.m.11 During the week, the restau-
rant closed at 9:30 p.m., yet he stayed until 12:30 a.m. on some
Wednesdays and Thursdays. He was accompanied usually by
the manager and three others who were participating in the
collective action. His claims were not corroborated and Gen-
eral Manager Romero denied that employees stayed past 1 a.m.
A. In Late July 2015, Artista General Manager Ambroa
Photographs Text Messages Between Reichman and Ramirez
General Manager Damian Ambroa took photographs of texts
between Assistant Manager Reichman and “Big Pimping Ste-
ven” and sent them to Quinonez. Despite Respondent’s policy
of not bring personal phones to work, Reichman left her cell
phone at the desk to call employees and allegedly had permis-
sion to use Reichman’s password to get into the phone because
Ambroa’s company telephone was poor. Ambroa had Reich-
man’s password and used it to gain access to the telephone.
The phone rang with another call and Ambroa read the mes-
sage.
The basis for the investigation was a text message exchange
allegedly between Reichman and the text name “Steven ‘Big
Pimpin.’”12 Manager Damien Ambroa found Reichman’s cellu-
lar telephone on a stand and opened it. He saw the message
and began to read it. He then took pictures of the text message.
The photographed text message stated:
Reichman: Ok. . . It’s nomimandel
Steven: Ok cool
Just got it
I’ll make sure to ask him those questions
that benefit you. I’ll ask them again in front
of eran [sic, Eran, Reichman’s husband and
employee at the restaurant] just so yall are
sure yall protected.
Reichman: I’m going to start storing stuff on flash
drives
Tomorrow . . . Do you remember when you
started working at CRO [sic, Churasscos
River Oaks]?
Steven: Hell yea
Yeah august 2012
Training. On the floor September
Reichman: Ok . . . Email this info to me . . . So that we
have actual correspondence
Steven: Ok will do it now
Reichman: I’m going in early so no one sees me look-

11 Ramirez did not work Fridays and Saturdays for his first month
and a half at Sugarland.
12 Ramirez denied that he was called that name, but was called “Pret-
ty Boy.” I make no credibility finding on whether the email was from
Ramirez because Respondent clearly believed it was Ramirez and took
action on that basis. Late in the hearing, Ramirez admitted that he was
the person in the text message.
CORDÚA RESTAURANTS, INC. 17
ing through this stuff . . . .
Steven: On Monday right?
Reichman: Tomorrow . . . . And I would like to see the
lawyer on Monday
What really sucks is that I found out that
there are mit getting paid more than I am!
Anyway I’m going to sleep. . Keep in touch
with email tomorrow because I leave my
phone on the desk and Damian knows you
started this and I don’t want him to know
(R. Exh. 8.)
The copy provided at hearing included no date or time for
the text messages. Ambroa testified that he knew the messages
were from Ramirez because Reichman previously used his
nickname. He also confirmed that the August 2012 start date,
mentioned in the text message, coincided with Ramirez’ start
date. He further assumed that Reichman was sneaking around
because she said she was going in early and did not want to be
seen. After photographing the text message, he sent copies to
his supervisor, COO Espinoza.
At the time of the email exchange, Reichman resigned and
planned to change jobs the next Friday. However, Ambroa
observed her drinking alcohol on the job and immediately ter-
minated her before her resignation took effect. About July 26,
2015, Reichman, already terminated, had a text message ex-
change with Ambroa, who ended the conversation by telling
her she was in trouble for drinking on the job and not to text
him again. During the exchange, Reichman said that Ramirez
asked her to obtain payrolls for other employees. She denied
cooperating with Ramirez to obtain the information. She of-
fered to bring her flash drives and computer to Ambroa for
inspection. However, her email also said she was forwarding
back to Respondent emails that she was printing up. (R. Exh.
9.) No emails were presented at hearing.
Reichman called Ramirez and said that she was wrongfully
terminated for stealing information. On the stand, Ramirez
denied that he was aware of what information she was stealing,
but maybe it was check stubs. Reichman testified she had been
drinking on the job and only learned of the reasons she was
terminated through the grapevine.
Reichman had access to confidential personnel files, which
were normally in a closed or locked office. Reichman also
scanned personnel documents, such as documents necessary for
licensure to serve alcoholic beverages, for corporate headquar-
ters; these documents were not retained by the location once
scanned and sent to headquarters. Reichman also could access
certain public folders for other employees at different locations.
However, she denied that the restaurant location would keep
copies of Social Security numbers because Ambroa would scan
and send to corporate HR, and then destroy it. Ambroa, who
obtained the text, testified that Reichman had access to the
company computer system, which held employee information
of wages, payroll, social security numbers and bank account
numbers. (Tr. 814.)
About July 26, 2015, Ambroa notified COO Espinoza about
the text messages. Espinoza was concerned that social security
numbers were at risk, that flash drives were involved to store
information and that an assistant manager, who had access to
alarm codes, could enter the restaurant early. Espinoza notified
Quinonez and the information technology department. The
information technologist could not conclusively determine
whether anything had been taken, said it was likely nothing was
taken and would cost quite a bit to make sure information was
not stolen. The IT investigation took a few weeks. Quinonez
did an investigation and had possession of emails between
Reichman and Ambroa, none of which were presented at hear-
ing.
B. In September 2015, COO Espinoza Interviews Ramirez and
Terminates Him
Espinoza had two discussions with Ramirez, which occurred
on September 4 and 10, 2015. Espinoza testified he did not
have time earlier because the restaurants had a “second Decem-
ber,” with Houston Restaurant Week, which runs specials at a
set price. Espinoza also had other duties to which he had to
attend. (Tr. 1036.) Quinonez was on vacation. In the mean-
time, between August 3 and September 1, three more Sugarland
employees joined the FLSA action, making the number of em-
ployees participating in the action now 20.
1. September 4, 2015 interview
On September 4, 2015 Espinoza recorded the first discussion
with his telephone, but did not advise Ramirez that he was re-
cording him. The meeting lasted no more than 10 minutes and
Espinoza did not present to Ramirez the text messages Ambroa
had sent him.
Espinoza began the conversation that he was conducting an
investigation. Espinoza informed Ramirez that he understood
Ramirez filed the lawsuit against Respondent and respected his
right to do so, but Respondent’ had to guard the employee’s
personnel records and the privacy of those records. Ramirez
asked what type of records. Espinoza said it was personal in-
formation and asked Ramirez if he knew that sharing the in-
formation could violate the law. Ramirez said he had no idea.
Espinoza then asked for Ramirez’ cellular telephone number
and his carrier. He then asked Ramirez about texting Reich-
man. Ramirez repeatedly said that he only contacted Reichman
through text messages about his schedule. Espinoza asked to
see his phone and when Ramirez said he would not do so, Espi-
noza asked that he write down that he refused to do so.
Ramirez asked if he could contact his attorney first. Espinoza
said Ramirez could contact his attorney after the meeting.
Espinoza then said, “So what I understand that you’re refusing
to show me your phone and you’re refusing to that in writing.”
(R. Exh. 27.) Ramirez asked again if he could quickly call his
attorney. Espinoza again said Ramirez could call after they
were done. Ramirez asked if he was in trouble. Espinoza said
it was an investigation, and he asked if Ramirez texted Reich-
man about obtaining records. Ramirez denied sending any
texts. Espinoza asked about “text messages to her” about a
flash drive. Ramirez again said strictly work. Espinoza again
asked if Ramirez asked Reichman for any company records,
which he again denied. Espinoza again asked about Reichman
giving him records or a flash drive with information, which
Ramirez again denied. Espinoza asked whether Ramirez told
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
Reichman to delete records, which Ramirez denied. Ramirez
emphasized that he talked about shifts in his texts and said he
was telling the truth. Espinoza asked if he might find out later
Ramirez was dishonest. Ramirez again denied it. Espinoza
asked, “. . . if we happen to have records or whatever you know
they’re going to prove exactly what you’re telling me?” and
then confirmed that Ramirez would not write down anything at
that time. Ramirez again said he would write his answer if he
could call his attorney. Espinoza concluded the interview.
Espinoza concluded Ramirez was lying.
2. September 10, 2015 meeting
On September 10, Ramirez was scheduled to work a shift.
When he arrived, General Manager Romero directed him to a
private office with Espinoza waiting for him inside. Romero
stayed for the meeting. Espinoza pulled out his telephone and
began recording the conversation, as did Ramirez. Romerez
said nothing during the meeting.
Espinoza, after telling Ramirez that he spoke with “various
employees” about the breach of confidentiality in the personnel
records. Espinoza asked if Ramirez had anything to add, which
he did not and asked why it mattered. Espinoza said that the
investigation revelaed he worked with other employees to ac-
cess employee records and he was dishonest about texting Na-
omi and accessing employee records. Espinoza asked Ramirez
what he was having Reichman doing with his records. Ramirez
said he did not need Reichman to do anything. Espinoza then
asked whose records Reichman was trying to obtain. Ramirez
denied that he was trying to obtain records or telling Reichman
to do anything. He said he was just trying to text about his
schedule. Espinoza then asked Ramirez write down his story,
and Ramirez refused because he was told not to write down
anything or sign anything. Espinoza, three times, without wait-
ing for Ramirez to respond, repeated that Ramirez was denying
to write down his version of the story. Ramirez started to say
he was stating it, and Espinoza interrupted and again said,
“You’re denying to write down your version of the story.”
Espinoza then said that the employee handbook only allows
examination of records with permission and any violation
would be a serious offense that “can result in termination.”
Espinoza then stated that, according to the handbook, Ramirez
lied during the investigation “by accessing confidential em-
ployee records according to this investigation” and “encourag-
ing another employee to access confidential employee records
and lying to me about texting Naomi.” (R. Exh. 28.) Ramirez
asked who texted Naomi, because his texts were always about
business. Espinoza again said Ramirez could write down his
side of the story. Ramirez asked if he could call his attorney.
Espinoza said Ramirez could call his attorney afterwards.
Ramirez asked if he signed if he could continue working there.
Espinoza said it was not a matter of signing, but a matter of
getting Ramirez’ version of the story. Ramirez again denied
that he asked for records. Ramirez again asked if he wrote his
side of the story, would he continue to work there. Espinoza
then said, “What does that have to with uh?” Ramirez asked if
he was being terminated. Espinoza again said that if Ramirez
wrote it down it might be a different version. Ramirez de-
manded to know if he was terminated. He said he did not do
anything wrong, never asked for records, that he did not know
Reichman that well and did not trust her. Espinoza told
Ramirez he was terminated for violating the policies and
wished him the best. 13
Respondent contends that Ramirez was asking Reichman to
obtain personal information, including social security numbers,
and putting information on flash drives. Ramirez denied that he
sought information to be put on flash drives. Ramirez initially
testified that he only texted Reichman about his schedule, then
said he also talked with her about parties and he did not recall
whether he had additionally texted her about other issues. On
recall, Ramirez said that he did not want to sign or write any-
thing without his attorney because of the pending FLSA action.
Respondent did not ever contact Reichman after her texts to
Ambroa because, according to Espinoza, she no longer worked
for Respondent and the matter was an internal investigation. It
also concluded that the issue was a matter of trust with
Ramirez. Espinoza testified that honesty was at issue, particu-
larly as Ramirez handled credit cards, cash and gift certificates.
Espinoza denied that the FLSA action had anything to do with
terminating Ramirez.
The messages included the times but did not include dates.
Ramirez ultimately testified, after some denials, that he was
involved in the text message conversation. Ramirez also testi-
fied that that some pages were missing from the text. However,
Ramirez said he spoke with Reichman by telephone before she
sent the texts: She was calling from a bar and was slurring her
speech, sounding drunk. (Tr. 1196–1197.) He admitted he
wanted information about his hours only.
C. Disparate Treatment Evidence
According to Quinonez, Respondent’s policy on theft is that
it is strictly prohibited and cause for immediate termination.
Quinonez presented several examples of terminations that in-
volved stealing. In the first example, a manager cashed the
same check twice. During the investigation, the manager was
presented with the picture of him cashing the check at the bank
for the second time and then started crying. He was terminated
for stealing and lying during the investigation. In the second
example, Respondent terminated another employee for stealing
beer from the bar and then selling it to the kitchen employees.
A third employee utilized the manager’s number to void checks
for food, which meant the customer was not paying for the
food. (R. Exh. 10.) The fourth example was an employee who
stole gift certificates and bottles of wine. She also said that
employees were terminated for adding tips.
D. Analysis
Respondent violated Section 8(a)(1) when it terminated
Ramirez. General Counsel presented a prima facie case under
Wright Line, supra. The Board also said, in dicta, employers
could satisfy their Wright Line burden by showing dishonesty
has been an independent reason for prior terminations or that a
practice of discipline for similar acts of dishonesty exists.

13 Ramirez also testified that in the week before his termination,
management at this location began conducting mandatory meetings,
including talking about clocking in and out procedures.
CORDÚA RESTAURANTS, INC. 19
Fresenius USA Mfg. Inc., 362 NLRB No. 130, slip op. at 1
(2015), vacating 358 NLRB 1261 (2012). I find that Respond-
ent’s rationale is a pretext.
1. Credibility
Respondent asks that I find Ramirez was not engaged in any
protected activity with the text and demands that I discredit him
for lying in the investigation and under oath.
I credit Ramirez’ reluctant admission that Reichman was to
obtain his pay records, to which he was entitled pursuant to
Respondent’s handbook. The text also establishes that Ramirez
sought to question someone with Reichman’s husband, Eran, an
employee, present for “protection.” That statement implies
some form of “joining together” for a protected purpose, one
which Respondent apparently found but decided to pursue an-
other course of action.
Respondent did not ask Espinoza about his knowledge of
who joined the FLSA and when it occurred. I find it difficult to
believe that Espinoza would not have known when employees
were added to the list of the collective action as Quinonez ad-
vised the general managers when she was asked. I discredit
much of Espinoza’s testimony as he was fed a significant num-
ber of leading questions and was asked to speculate. J-H Rut-
ter-Rex Mfg. Co., 206 NLRB 656 fn. 2 (1973) (speculative
testimony not credited when other testimony is credited). He
also was evasive when asked whether Ramirez was advised the
interview was voluntary. Espinoza identified Ramirez’ consent
when he asked Ramirez to follow him into a room, sit down
and began discussing matters, and that Ramirez was free to
leave at any time, so he interpreted these actions as consent.
(Tr. 1051–1052.)14
Espinoza’s questioning in the interview was misleading and
do not support Respondent’s conclusions. For example, Espi-
noza asked whether Ramirez had text messages “to her about a
flash drive or anything else.” Looking at the text message,
Reichman wrote to Ramirez about the flash drive, not Ramirez
to Reichman, so the question was misleading. The demand that
Ramirez write his side of the story was repeated with Ramirez
asking to speak with his attorney. Respondent also failed to
show Ramirez the text message that set off the investigation. I
therefore cannot credit Respondent’s claim that the interviews
were designed to find the truth.
In addition, all respondent witnesses who had contact with
the text message chain between Reichman and Ramirez specu-
lated on its meaning. Again, no one ever presented the text
messages to Ramirez. Because Respondent speculated instead
of finding out what it meant, I also cannot credit Respondent’s
witnesses on this point. See generally: Ernst & Young, 304
NLRB 178, 179 (1991) (in a compliance hearing, not relying
upon speculative testimony); DSL Mfg. Inc., 202 NLRB 970,
971 (1973) (speculation does not equal evidence).

14 When pointed out that Espinoza did not answer the question put to
him, Respondent’s counsel changed the question from “Did you tell
him that he didn’t have to participate in the interview?” to “Was the
interview voluntary?” (Tr. 1051.)
2. General Counsel presents a prima facie case on
Respondent’s discharge of Ramirez
Respondent contends that neither Ambroa nor Espinoza held
any animus towards Ramirez. However, Espinoza’s testimony
about his assurance to Ramirez that Respondent recognized his
right to maintain the FLSA action rang hollow when compared
to the questions that followed and other events in Respondent’s
investigation. See generally Conley Trucking, 349 NLRB 308,
312 fn. 9 (2007), enfd. 520 F.3d 629 (6th Cir. 2008). Regard-
ing timing, employees continued to join the FLSA action that
Ramirez started.
The facts above establish that Ramirez was engaged in pro-
tected activity by continuing to answer employee questions
about the FLSA action on which he is the lead plaintiff. At the
time of the text message, Respondent knew that he was lead
plaintiff and it had recently told Managers Ambroa and Romero
the names of employees participating the FLSA action. The list
of employees joining the suit demonstrates that wherever
Ramirez worked, more employees joined the FLSA action.15
How Ambroa found the text message raises more questions
than it answers. Although Ambroa had access to Reichman’s
telephone, the time stamp of the text is not the time of the text
or its date. The time on Ambroa’s photograph of the text re-
flects the time he took the picture. Comparing R. Exh. 8 with
R. Exh. 9, Ambroa apparently had to scroll past the date and
time to get to the content. He believed the text came from
Ramirez because of his nickname and purposely looked at a
text that was not received during work, and certainly not what-
ever message came up that allegedly prompted him to look at
Reichman’s cell phone. However, by this time Ambroa knew
that Ramirez was one of the employees involved in the FLSA
action.
Respondent maintained throughout the hearing and its brief
that its paramount concern was the confidentiality of the em-
ployee records. Its brief cites Texas law about protecting these
documents. However, the course of the investigation demon-
strates animus and pretext. When reasons for termination are
pretextual, it is “sufficient to demonstrate unlawful motiva-
tion.” Tecmc, Inc. d/b/a T.M.I., 306 NLRB 499, 503 (1992),
enfd. 992 F.2d 1217 (6th Cir. 1993), citing Dorothy Shamrock
Coal Co., 279 NLRB 1298 (1986).
Respondent failed to speak with Ramirez expeditiously and
instead had him work throughout the busy Houston Restaurant
Weeks. Espinoza, on one hand, was admittedly busy, but he
also said the texts made him question Ramirez’ honesty, includ-
ing dealing with customer information, such as credit card
numbers. Despite misgivings about Ramirez dealing with cus-
tomer information, which Respondent emphasized in its brief,
Espinoza contradictorily allowed Ramirez to work through the
month of August, which Espinoza characterized as another
“December” for business volume.
The failure to follow up with Reichman is also troubling:
She offered to show that she had no information, yet Respond-
ent did not take her up on her offer. Both Ambroa and Espino-

15 Respondent even asked Ramirez whether he transferred in order to
recruit more employees for the FLSA action. Ramirez denied doing so.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
za testified that she was no longer employed there, so it made
no difference. Ambroa instead cut off contact with her. Re-
spondent’s failure to question the witness who could clear
Ramirez also points to a lack of concern about the investigation
and the confidentiality of its documents. Escambia River
Elec., 265 NLRB 973, (1982), enfd. 733 F.2d 830 (11th Cir.
1984) (“sham” investigation). Also see The Sheraton Anchor-
age, 363 NLRB No. 6 (2015) (sham investigation reflects true
discriminatory intent); K&M Electronics, 283 NLRB 279, 290–
291 and fn. 45 (1987) (failed to interview witnesses).16
About 6 weeks passed between the time Espinoza was in-
formed of texts and his initial interview with Ramirez. During
the investigation, no one for Respondent showed the text mes-
sage to Ramirez, nor did it tell Ramirez that it had this text
message. As noted in the credibility section, Espinoza asked
questions on September 4 that did not reflect the actual contents
of the text message between Reichman and Ramirez. Despite
Respondent’s position that it gave Ramirez an opportunity to
“come clean” during the investigation, I find that the investiga-
tion was not designed to do so and to find a basis for terminat-
ing Ramirez. Instead, it serves as evidence of animus and
pretext.
Roadway Express, 271 NLRB 1238, 1239 (1984), also cited
by Respondent, stated stealing business records for information
is not protected. However, the business records the employees
obtained were bills of lading: They were the employer’s pri-
vate business records, which was not available to employees.
Roadway is distinguishable on two levels: First, no records
were taken. Second, Respondent never shows that Ramirez’
own records were not available to him.
Respondent contends that the employer is permitted to main-
tain order and respect in its workplace and Ramirez’ activities
exceeded the protection of the Act. For this proposition, it cites
Reef Industries, Inc. v. NLRB, 952 F.2d 830, 837 (5th Cir.
1991), enfg. 300 NLRB 856 (1991). The concerted activity is
not protected when it is “flagrant, violent or extreme as to ren-
der the employee unfit for service.” As I rely upon a Wright
Line analysis rather than Burnip & Sims,17 Reef does not pro-
vide direction for Respondent’s arguments. However, it is
instructive in a different way: The Board and the Fifth Circuit
left undisturbed the administrative law judge’s finding that the
employer engaged in a sham investigation of an employee who
was terminated for protected concerted activities in an ongoing
labor dispute. Id. at 834–835. The Fifth Circuit held the Board
did not commit error in finding that the employer violated Sec-
tion 8(a)(1) by terminating the discriminatee. Id. at 839.18

16 Respondent also failed to call Reichman in its case in chief. Like
the failure to engage with her during the investigation, I take an adverse
inference from its failure to call her.
17 NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 24 (1984). General
Counsel provided an analysis under Burnup & Sims. Given Respond-
ent’s rationales that Ramirez stole information (or tried to steal infor-
mation) and lied during the investigation, Wright Line is better suited to
this discussion.
18 Respondent also cites Slusher v. NLRB, 432 F.3d 715 (7th Cir.
2005), revg. 343 NLRB 297 (2004). However, the court reinstated the
administrative law judge’s finding that the employer unlawfully termi-
nated a strong union adherent, reversing the Board’s dismissal of the
For the proposition that Ramirez was not engaged in protect-
ed activity because he lifted confidential employee information
and lied under oath, Respondent cites NLRB v. Brookshire Gro-
cery Co., 919 F.2d 359 (5th Cir. 1990). Brookshire suspended
an employee for copying confidential wage information and
distributing it to employees. The Fifth Circuit’s held that an
employee’s right to engage in Section 7 discussions about wag-
es did not extend to taking company papers and copying confi-
dential information. Id. at 365. However, the facts are differ-
entiated as Ramirez never received any information and he only
sought information to which he was entitled.
Respondent gives a blanket statement that lying during an
investigation not protected. Asarco, Inc. v. NLRB, 86 F.3d
1401, 1409 (5th Cir. 1996), denying enf. in rel. part 316 NLRB
636 (1995). The case is not on point with what happened to
Ramirez. In Asarco, the alleged discriminatee was the union
president. The administrative law judge credited none of his
testimony about a horseplay incident unless it was corroborated
or not in dispute. 316 NLRB at 641. The judge also found that
the alleged discriminatee engaged in horseplay that resulted in
injuries to another employee and that the alleged discriminate
lied about what he did. Id. at 641–642. In contrast, the evi-
dence reflects that Ramirez did not engage in the conduct for
which he was accused, actually stealing information, and
Ramirez did not have an adequate opportunity to tell the truth
due to Respondent’s sham investigation.
For the proposition that lying during an investigation is not
protected by the Act, Respondent also cites Fresenius USA
Mfg. Inc., 362 NLRB No. 130, supra. The investigation in
Fresenius involved handwritten statements that female employ-
ees found offense, vulgar and threatening. At least one woman
identified the handwriting as belonging to the alleged discrimi-
natee. The alleged discriminate denied doing so. The company
found the exemplars from the employee log and the alleged
discriminatee’s handwritten statements looked very close. The
alleged discriminate also made an accidental telephone confes-
sion to company representatives and then denied doing so. The
company terminated the alleged discriminatee for dishonesty.
Fresenius, 358 NLRB at 1261–1262. Although some of the
handwritten statements may have been protected, the Board
determined that the company presented an independent reason
for terminating the alleged discriminatee, his dishonesty during
the investigation. Fresenius, 362 NLRB No. 130, slip op. at 1–
2. The employer in Fresenius completed a significantly more
detailed investigation into alleged wrongdoing and had a con-
fession upon which the employee recanted. Respondent here
did not give Ramirez an opportunity to review the text in ques-
tion and was not looking for the truth when it delayed its inves-
tigation.
Ultimately, I find that Respondent’s actions in discharging
Ramirez pretextual. Respondent would have to prove it had a

complaint. The Board, without much explanation, reversed the admin-
istrative law judge and instead found the alleged discriminatee’s sup-
posed harassment of a dissident employee was not protected, so the
termination could stand. 343 NLRB 287. Because of the lack of ex-
planation in the Board’s decision, as noted by the Seventh Circuit, I
will not analogize Slusher to the current matter.
CORDÚA RESTAURANTS, INC. 21
reasonable belief that Ramirez engaged in theft of information,
even before it began to question him. Midnight Rose Hotel &
Casino, 343 NLRB 1003, 1005 (2004). It did not have a rea-
sonable belief that Ramirez stole information as Respondent’s
computer expert did not reveal anything was missing, as dis-
cussed above. The tardy investigation that followed was an
effort to find another reason to terminate Ramirez. The treat-
ment of other employees for theft was actual removal of goods
or money, not information or presumed interest in removing
information. An employer’s failure to conduct a meaningful
investigation and to give the alleged discriminatee an oppor-
tunity to explain demonstrate discriminatory intent. Androna-
co, 364 NLRB No. 142, slip op. at 14, citing inter alia, Ozburn-
Hessey Logistics, LLC v. NLRB, 609 Fed. Appx. 656, 658 (D.C.
Cir. 2015), enfg. 357 NLRB 1632 (2011). Also see Sociedad
Esponanola de Auxilio Mutuo Y Benefencencia de P.R., 342
NLRB 458, 459–460 (2004), enfd. 414 F.3d 158 (1st Cir.
2005). Therefore, Respondent presented no conclusive evi-
dence that Ramirez was treated similarly to other employees
terminated for theft. Ozburn-Hessey Logistics, LLC v. NLRB,
833 F.3d 210, 219 (D.C. Cir. 2016), enfg. 361 NLRB 921
(2014) and 362 NLRB No. 118 (2015) (disparate treatment
discussion).
Further, the Fifth Circuit enforced a Board decision to rein-
state employees who were discharged in violation of the Act.
Convenience Foods Systems, Inc. v. NLRB, 129 Fed.Appx. 57,
59 (5th Cir. 2005).
IX. CHARGING PARTY MORALES IS DISCHARGED
Rogelio Morales worked as a server at several of Respond-
ent’s locations. He spent three years at Churrascos Sugarland.
He joined the FLSA lawsuit after speaking with Ramirez. Mo-
rales was among five employees to see the attorney handling
the case when he signed up. His general manager, Rigo
Romero, learned about his participation in the FLSA action in
about August, when he asked HR Manager Quinonez which
Sugarland employees were participating. (Tr. 1142.) Morales
was terminated on August 18, 2015, two months after joining
the collective action.
Morales noted in June that “management became more
strict” and established new rules, including grounds for imme-
diate termination. Respondent’s stated reason for termination
was that, on Sunday, August 16, Morales was involved in an
offensive conversation with another server at the servers’ well,
located at the bar. A customer heard the conversation and
complained. Respondent found the conversation was immedi-
ate grounds for termination and terminated Morales and the
other server two days after the incident took place. (GC Exh.
6.)
A. Events at Sunday Brunch
The events leading to termination occurred while Morales
worked a Sunday morning brunch shift. At this point, the ver-
sions of what happened diverge.
1. Morales’ version
Morales was assigned table towards the back of the restau-
rant, with either big tables or heavier parties. Because he was
serving brunch, duties included picking up plates constantly,
resetting tables, giving drinks and refilling menus. Morales
stated he was talking with the bartender, George Henderson,
when another server, Bert Arnes came to the bar area. Arnes
started using profanity, stating “[T]hese bitches . . . .” Morales
maintained that he told him to be quiet and George hinted to be
quiet. A female customer at the bar apparently heard Arnes and
said, “Wow. What kind of language. Why are you using it?”
Arnes continued to talk with the customer and Morales left the
area to continue his work. Morales stated he and Arnes were
approximately two feet away from the customer.
Morales stated the female customer had been at the bar for
some time, drinking mimosas. She was slurring her words and
sometimes laying on the bar. Morales was not her server. Mo-
rales is certified to serve drinks and is aware of signs of intoxi-
cation. He did not know how many drinks she had.
Morales later saw Assistant Manager Patricia Lopez talking
with the customer and brought over Ares. According to the
disciplinary record, Ares told the customer that she was trying
to get free food. (R. Exh. 12 at 481.)
Lopez then came to Morales about the situation. According
to Morales, Lopez asked him about what to do. Morales said
he did not want to twist Arnes’ words and that Lopez should
speak to Arnes first. Morales later saw that Lopez talked with
the customer and brought Arnes into the conversation. Morales
could not hear this conversation, which took place between
2:30 and 3:30 p.m. However, based upon his experience as a
manager, Morales believed that Arnes was given the opportuni-
ty to apologize to the guest, which is customary in the industry.
At the end of the shift, Lopez called both Morales and Arnes
into the office for a discussion. Manager John Korber, who
came to work between 2:30 and 3 p.m., after the incident, was
present at the meeting. The meeting lasted only four to five
minutes. Lopez said that the customer complained about
Arnes’ use of language and that Morales was involved. Mo-
rales denied involvement and emphasized that he walked away.
Arnes said the customer was lying and said he never said any-
thing. Arnes left. Morales remained and told them they should
talk with Henderson, the bartender. The two said that they
could not do anything until Manager Romero did something
about it. In the meantime, Morales would be sent home until
Tuesday, when Romero came back to work. Morales denied
that Lopez asked for his side of the story. Morales told Hen-
derson he was leaving and Henderson told him that he would
testify to what happened. Morales also saw Arnes on his way
out and told Arnes that he was sent home for Arnes’ mistakes.
Arnes said that he was a witness and would vouch for Morales.
2. The Customer’s Version
Karen LeBlanc, the customer who was offended by the con-
versation, testified that she sat at the bar for brunch because she
was alone. She had a 2 p.m. reservation and estimated that she
was at the bar by 1 p.m. She said she heard Morales and anoth-
er server (identified as Arnes, above) talking at the cash regis-
ter. She heard the other server at the cash register talk about
what he had done at a nightclub where a number of beautiful
women were and that the only way he could get a girlfriend like
that was to “roofie” them. The other server said, the previous
night, he found a girl who was very drunk and put something in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
her drink, then was able to put his hand up her skirt. LeBlanc
said that the other server, each time he came to cash register
while Morales was around, continued to talk about his experi-
ences at the nightclub and told Morales he had to go with him
to have fun. Morales allegedly asked questions, such as age of
the person, whether the other server had fun, and then said that
he would like to go sometime. LeBlanc said that they were
laughing. LeBlanc was led to say that Morales and the other
server gave each other a “high five” hand slap.19 LeBlanc then
said that Morales would say, “Yeah man, count me in,” which
upset her. LeBlanc stated she had not eaten very much and
drank one entire mimosa (orange juice with champagne) and
did not finish a second one. She asked the bartender to send a
manager to speak with her, which he did. She spoke with the
manager at the end of the bar with the cash register. The man-
ager said she did not have to pay her check. The other server
came behind LeBlanc and the manager and told wanted a free
meal. Morales was not present for that exchange.
LeBlanc testified she was so upset that she had to get out of
there, but then testified that she finished her second mimosa
and her food. (Tr. 776.) She testified that she would not have
drank more than 1 to 1 ½ mimosas because she was driving a
new Mercedes. She also said that the exchange between the
servers did not last long. (Tr. 778.) She also could not recall
whether Morales was working at tables or trying to get back to
their tables and further admitted that she was not really paying
attention to what they were doing. She also was looking at her
telephone and the menu and talking to the bartender. She was
texting her boyfriend during the time and the television at the
bar was broadcasting sports. She said she started paying atten-
tion when they were talking.
On redirect examination, LeBlanc testified that the other
server used the term “roofie,” but Morales did not. She testi-
fied that she did not start paying attention to them until she
heard the term “roofie.” Respondent also led LeBlanc to agree
that Morales was “egging on” the other server.
LeBlanc did not give a written statement at the time of the
events and was contacted by Respondent’s attorney the week
before the hearing. She has not been to Churasscos since that
incident.
Lopez testified LeBlanc, at the time of the incident, reported
the offending server (not Morales) said he had been out the
previous night, it was easy to get the “hos” drunk, they were
sluts and he took them home and “fucked the shit out them.”
No drugs were mentioned in the version LeBlanc gave to
Lopez. Morales allegedly said, “Oh wow, that’s cool.” Lopez
said that she never heard Morales curse in front of a customer.
3. The Bartender’s Version
George Henderson was the bartender on duty when LeBlanc
complained about Arnes and Morales. Henderson said he heard
Arnes talking “bad about the customers,” then Morales came up

19 On cross-examination, Morales denied that he heard Arnes men-
tion “roofies” (slang for the drug rohyphenol, also known as the “date
rape” drug)19 or give him a “high five” hand slap; he also denied laugh-
ing about what Arnes said or encouraging him. Because of his duties,
he did not have time to notify Assistant Manager Patricia Lopez.
and “didn’t really hear what was said.” (Tr. 1113.) The cus-
tomer asked for a manager and he got Patricia Lopez for the
customer. Like Morales, Henderson did not call the manager
either. Henderson remains employed as a senior bartender at
the restaurant.
B. Respondent Relied Upon Customer’s Version and
Terminated Morales
On Sunday, Assistant Manager Lopez telephoned General
Manager Romero, reporting that the two servers had “a sexual
content conversation in front of a guest,” who complained. (Tr.
1128.) Romero learned from HR Manager Quinonez that Mo-
rales joined the FLSA action in about July 2015.
On Monday, August 17, Romero telephoned Quinonez. He
told her what happened and said he wanted to immediately
terminate the two. Quinonez advised him to make sure he
talked to all witnesses before he made his final decision. Qui-
nonez also told Romero to be very careful because Morales was
involved with the lawsuit, but if he violated company policy,
Morales would not be treated any differently. (Tr. 425.)
On Tuesday, Romero, with John Korber present, held a
meeting with Morales and Arnes in the office. Romero told
Morales he “had to be terminated.” Romero said his hands
were tied because of the customer complaint. Arnes left angri-
ly; Morales stayed and tried to explain himself and said he had
a witness. Romero repeated that his hands were tied. Morales
credibly denied that he ever used any foul language or inappro-
priate comments in front of a restaurant customer. He main-
tains that he told Romero to give him a chance to investigate, to
talk with the bartender and any other witnesses. Romero testi-
fied that Morales asked for a second chance.
Romero testified that he talked with the two servers separate-
ly. Romero said that he asked why Morales would have this
conversation in front of a guest. Morales denied talking and
said he only laughed. Romero told him that he had been a
manager and knew what things should not be done. He said
Morales asked for a second chance, which Romero took as an
admission of guilt.
After his termination, Morales called Henderson and asked
whether Romero talked to him about the termination. Hender-
son told Morales that no one had even asked him about it.
Henderson told Morales he was sorry “they fired him.”
C. Morales’ Disciplinary History
Morales signed a Respondent’s Policy Review Acknowl-
edgement and for receipt of the handbook in August 2013. (R.
Exh. 3.) The handbook (at p. 12) included offenses for imme-
diate termination, including discourtesy to a guest, including
the use of vulgarity. It also contained a harassment and sexual
harassment policy. Any employee engaged in harassment or
discrimination could be subject to discipline, up to and includ-
ing termination. (GC Exh. 15 at 16.)
In November 2014, while working as a manager, Morales
was accused of sexual and racist comments and use of profanity
while talking in front of employees. An employee, Matthew
Pham, allegedly complained that Morales called him “Chi-
CORDÚA RESTAURANTS, INC. 23
nese,”20 drew penises on his paycheck and made derogatory
statements on the paycheck. General Manager Nicole Green
gave him the discipline. Allegedly Pham was dating a hostess
and the relationship became unfriendly. Morales said he had
not seen any of the alleged issues until Green confronted him
with the discipline. Morales was placed on probation and Re-
spondent planned to check with staff each week to ensure the
behavior stopped. (R. Exh. 2.)21
In contrast to the disciplinary form, Green sent an email, dat-
ed November 8, 2014, to HR Manager Quinonez and Manager
Espinoza about Morales’ alleged behavior. An investigation
was held and, although no direct evidence of sexual harassment
was found, Morales was coached and placed on probation.
Green encouraged him not to joke as the jokes used obscenities.
Towards the conclusion of the mail, Green notes that “without
[sic] proof I can’t fire [sic] anyone.” (GC Exh. 10) The email
of November 10 states Pham was calling and texting other staff
members and notes that Pham was dating the hostess. Morales
contended the hostess wrote the obscenities on the check and
Morales did not mention it before because he did not want to
get anyone in trouble. (GC Exh. 11.) Manager Romero was not
aware of this incident when he terminated Morales as Quinonez
did not mention it to him.22 (Tr. 479.) Pham reported to Qui-
nonez that others allegedly reported that Morales drew the pe-
nises on his checks, but no investigation was performed to veri-
fy the other reports. (Tr. 486.)
Respondent presented no further incidents of Morales’ prior
disciplinary actions.
D. Disparate Treatment Information
Respondent contended it fired employees who sexually har-
assed others. However, one was listed as “making a threat to a
team member.” In two additional situations, Respondent gave
second chances to employees who sexually harassed other em-
ployees. (R. Exh. 12.) One of the employees who had a second
chance was eventually terminated for another sexual harass-
ment complaint from another employee. Respondent also ter-
minated employees who talked back to customers, such as re-
fusing a request for a child’s menu. A female employee re-
ported that a fellow employee touched her inappropriately,
including that he grabbed her, kissed her and tried to separate
her legs while in the liquor cabinet. Quinonez asked the female
employee whether she wanted the offending employee termi-
nated, and according to Quinonez, she did not; instead, the
employees were supposed to work different schedules.
23
In May 2014, a male employee was coached after he told a
female employee he wanted to grab a “big chunk of her ass.”

20 Morales testified he had permission to call Pham “Chinese.”
21 Pham left employment there shortly thereafter. Nothing in the
record shows any documentation of the checks done each week to
ensure no further behavior occurred.
22 Quinonez said that if an employee signed a corrective action form,
then the employee agreed with the discipline. However, the form
makes no such indication. (Tr. 482–483.)
23 This resolution flies in the face of Respondent’s handbook, which
requires immediate termination for a violent behavior of shoving and
grabbing. (GC Exh. 15 at 19.)
Other employees reported the situation and an investigation
was conducted, which resulted in the female employee saying
she did not want the male employee fired. (GC Exh. 12.)
E. Analysis Regarding Morales
I credit Morales’ version of the facts. Respondent contends
that LeBlanc should be given more credence because she is a
disinterested witness. While she may be disinterested, her tes-
timony was internally inconsistent. Overnite Transportation
Co., 245 NLRB 423 fn. 1(1979) (judge upheld on not relying
upon witness with internal consistencies in testimony). She
said she would not drink more than 1 ½ mimosas, yet she fin-
ished two. She said she was so upset she could not eat, yet she
finished her lunch. She also was not consistent with what she
told Assistant Manager Lopez, and I credit Lopez’ version of
what LeBlanc told her. I am not required to give credence
when the witness does not provide a coherent set of facts or is
led to certain conclusions, such as “high fiving” or “egging on.”
H.C. Thomson, 230 NLRB 808, 809 fn. 2 (1977) (answers to
leading questions on direct examination not entitled to cre-
dence). Henderson, who told Morales that he would support
his story, gave no information about what occurred between the
servers and what he heard. I credit that he called Lopez for
LeBlanc, but for no other information.
As noted above, I apply Wright Line for the analysis of the
termination. Morales was engaged in protected activities be-
cause of his involvement in the FLSA action. Romero, who
wanted to terminate Morales, and Quinonez both knew of his
involvement. The question is whether Respondent held any
animus towards Morales’ activities. I also do not rely upon
Respondent’s representation that Morales had previous disci-
plinary action: Green specifically remarked that Respondent
could not prove Morales engaged in the alleged conduct.
General Counsel presents a case that lacks any strong evi-
dence of animus. The only evidence of animus is timing of
Romero’s discovery of Morales’ involvement in the FLSA
action. Respondent also demonstrates that it would have termi-
nated Morales for the conduct, regardless of his protected activ-
ities.
Respondent terminated Morales for a customer complaint
and not upon his protected activities. Customer complaints
have been found to be a lawful reason for termination. Rent Me
Trailer Leasing, Inc., 305 NLRB 1094, 1094 fn. 3 and 1096
(1992). Also see Kennedy & Cohen of Georgia, 218 NLRB
1175, 1177 (1975) (protected activity does not insulate from
regular disciplinary measures for misconduct). The record
demonstrates that Respondent did not tolerate complaints about
employees from customers. In this case, Respondent terminat-
ed both employees about whom the customer complained. I
shall recommend dismissal of this allegation.
X. ASSISTANT MANAGER NGUYEN WARNS EMPLOYEES “NOT TO
BITE THE HAND” THAT FEEDS THEM WHILE TELLING EMPLOYEES
THEY MIGHT NOT BE SCHEDULED IF NOT SIGNING THE
ARBITRATION AGREEMENT
Around December, Respondent conducted a preshift meeting
at Artista, in the mezzanine area, with approximately 15 em-
ployees, including Lewis and Bryan Hofman. Assistant Man-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
ager Alex Nguyen conducted the meeting.24 He provided the
new arbitration agreement for employees to sign. Nguyen told
the employees that Artista Manager Ambroa and Corporate
Manager Fred Espinoza said the employees were required to
sign or they would be removed from the schedule. During the
meeting, Charging Party Lewis and employee Hofman com-
plained that the papers were not legible. Hofman testified that
the employees were told the document was legible enough for
them to sign.
Lewis said, “I can’t speak for everyone, but I can speak for
myself. I know we can’t be forced to sign a legal document
without having legal counsel first.” She said she objected to
signing the form and, according to Hofman, was insistent on
having legal counsel review the form first.
Nguyen appeared upset and said, “You can’t discuss this in
the open meeting. I know your concern is because of the law-
suit.” Lewis responded, “Well, you presented it to us in an
open meeting.” Nguyen responded, “Well, personally, if it
were I, I wouldn’t bite the hand that feeds me.” (Tr. 229,
336.)25 He then said, “I would just go ahead and sign it.”
After the meeting, Hofman asked Ambroa what would hap-
pen if they refused to sign the agreement. Ambroa said he was
told the employees would be fired. Lewis also told Ambroa
that she wanted to show the arbitration agreement to her attor-
ney before signing it. Respondent asked Ambroa whether
Lewis had a conversation with him about the arbitration agree-
ment. He denied, to a leading question, whether he would take
any action against Lewis about the arbitration agreement.
However, Respondent left open whether he told employees they
would be terminated or not scheduled if they failed to sign.
(Tr. 962.) Ambroa did not deny that he made the statement to
Hofman about termination for employees if they refused to
sign.
The standard in determining whether a statement is threaten-
ing or coercive is objective. An unlawful statement reasonably
tends to interfere with the free exercise of protected employee
rights. Lucky Cab Co., 360 NLRB 271 (2014). As noted in
EYM King of Missouri, LLC, d/b/a Burger King, 364 NLRB
No. 33, slip op. at 11 (2016), citing Multi-Ad Services, supra,
even a “mere threat of an unspecified reprisal is sufficient to
support a finding that the employer has violated Section 8(a)(1)
of the Act.” It has long been held that a warning not to “bite
the hand that feeds you” is coercive. Missouri Bag Co., 91
NLRB 385, 396–397(1950). Accord: Joseph Chevrolet, Inc.,
343 NLRB 7, 15–16 (2004), enfd. 162 Fed.Appx. 561 (6th Cir.
2006). Telling employees not to bite the hand that feeds them
is a stark reminder to employees of their precarious situation as
employees if the employer becomes displeased with them:
They have the benefit of employment that is within the em-
ployer’s control and the employer can easily take it away if the

24 Employee Bryan Hofman testified that the meeting was conducted
by Nguyen and Ambroa.
25 Nguyen denied telling employees that the employees would be
fired or not scheduled for failing to sign the agreement. I do not credit
this denial as Hofman asked Ambroa the same question. However,
Nguyen admitted to saying “generally”, that he wouldn’t bite the hand
that “feeds me.” (Tr. 1173.)
employer finds contrary employee conduct.
I agree with General Counsel that the arbitration agreement
was a term of employment. Nguyen made it clear that failing to
sign the agreement would lead to termination. Nguyen’s state-
ment was coercive not only because it included the warning of
not opposing Respondent by “biting the hand,” it occurred dur-
ing a meeting in which Nguyen informed employees that they
would not be employed if they failed to sign the arbitration
agreement. Therefore the statement is coercive. Missouri Bag,
supra.
XI. CHARGING PARTY LEWIS
Lewis worked at Respondent’s restaurants as a server, server
trainer and a VIP donor concierge. She began her employment
on February 10, 2013. At the time of her termination, she
worked at Artista. She was terminated on April 5, 2016.
The VIP donor concierges (VIP servers) serve donors to the
arts. These donors contribute $25,000 to $25,000,000 each
year. The VIP servers are selected from approximately 20
servers working at Artista; only six to eight are named VIP
servers. The VIP servers are known for giving stellar service to
their guests. According to Lewis, VIP donors are to have any-
thing requested. Guests may request a specific server when
they make a reservation, either by phone or by computer.
When a guest makes a request, the request is kept in the com-
puter. Lewis had a large number of parties requesting her as
their server because she had an exceptionally high standard of
service. (Tr. 1160, 1163.)
The assistant general manager is stationed primarily at the
hostess stand. VIP guests are greeting by name. The assistant
manager assigns the table and marks the table seating assign-
ment for the VIP guests.
All positions in which Lewis worked required guest services,
including suggestive selling, waiting on tables, and general
restaurant services. As a trainer, Lewis trained new servers,
including training in new expansion restaurants. She worked
with food runners, who presented the orders to the diners. Ac-
cording to Lewis, the food runners spoke English and Spanish.
If a food runner gives the food to the wrong diner at the same
table, the server is supposed to correct the food runner or notify
the kitchen manager, who also serves as the expediter on the
server’s side of the kitchen line. The expediter was always a
member of management, such as General Manager Ambroa.
Lewis heard rumors of the suit and called Ramirez, with
whom she had worked at another restaurant. Ramirez referred
her to the attorney handling the case. Lewis joined the collec-
tive action in June 2015.
A. Lewis Maintains She Suffered a Loss of Assigned Tables
and Scheduled Dates Due to Her Protected
Concerted Activities
On September 14, Lewis emailed Manager Ambroa that she
needed to work part-time. She identified that she would be able
to work four nights per week and not limited to Broadway
shows. She requested a Tuesday through Friday dinner only,
which she believed would cover most of the VIP Donors, and
requested to also work the VIP Intermissions. (R. Exh. 4.)
Lewis testified that she worked this schedule through the first
CORDÚA RESTAURANTS, INC. 25
show in October.
About October, Lewis testified that she noticed that her as-
signments were changed at the last moment or patrons who
requested her service were seated at other tables. Lewis veri-
fied in Open Table, the online reservation system, that these
patrons requested her as their server.
Table assignments were normally handled by either the gen-
eral manager or assistant general manager.26 During this time,
the assistant general manager, Alex Nguyen, usually made the
schedule. A restaurant map with the assignments was posted
usually about 4 p.m., before guests arrived. Servers are provid-
ed a copy of the map for the shift.
The map shows the different tables and their respective
numbers. The name of the show appearing at the Hobby center
is listed. The map is color coded to reflect tables for Artista
VIPs, Hobby Center VIPs, and special occasions. The VIP
servers, who are listed in red, are the only ones who are al-
lowed to serve during the VIP donor intermission. The servers
are labeled for certain areas on the map with their table assign-
ments. The assignments for bussers include side work and
housekeeping duties, such as vacuuming and trash. Servers
also have side duties assignment at the bottom of the map. (GC
Exh. 7.) If a large number of VIPs requested a server such as
Lewis, Lewis and Artista General Manager Ambroa would
discuss how to configure her section of tables and perhaps al-
low her to work with another server.
McMillon testified that servers are normally assigned four to
five tables and the number of guests depends upon the number
at each table. McMillon noted that when he returned from
seating guests, sometimes the manager changed the assign-
ments of which server would take guests.
McMillon notes that, on two to three occasions, Lewis was
not given guests who requested her. He estimated that it hap-
pened more frequently to Lewis and started after Assistant
Manager Reichman was no longer working at Artista. Lewis
was normally assigned a four-table section and about 8 to 10
guests.
On November 20, Lewis noted that two VIP tables were not
assigned to her. She said she checked with Nguyen about the
matter and he said they were misassigned, despite guest notes
in the computer system stating guests requested her as a server.
A couple of times per month, in the fall of 2015, Lewis stat-
ed she was on her way to work a shift and Nguyen would call
her to not come in. However, Lewis, if working one day,
would check the computer system to see the number of covers
and sometimes check guest notes to prepare for the following
day. When her shifts were cancelled, Lewis sometimes went to
the restaurant to observe the number of parties. The following
day, she asked workers if they “made good money” for her
cancelled shift.
Lewis also noted that sometimes the “cover count” on the ta-
ble assignments would reflect more than she actually had. She
maintained an eye on cover counts because it not only reflected

26 Artista Host Keith McMillion testified that he assigned tables in
the morning based upon a cover count, the amount of customers as-
signed to a section. The assistant manager, usually Nguyen, would
assign the servers to the tables based upon the floor map.
the number of guests she served, but also if she had sell-ups per
guests. Before the changes, she normally had 15 to 20 guests
per night; after the changes, she had 8 to 12 guests per night.
These changes affected her gross earnings.
Lewis approached Nguyen27 with her complaints about the
table changes and that her guests were asking her why she was
not serving them. She pointed out that the requests for her were
in Open Table, and Nguyen said he did not pay attention. Lew-
is said after Nguyen told her the same thing a couple of times,
she approached the general manager, Damian Ambroa. Lewis
said he “blew [her] off” but said he would speak with Nguyen.
After that, Nguyen also did not address her concerns either
when she raised them.28 Ambroa admitted that one time, she
pointed out an error, but otherwise she was assigned to the
main floor. Nguyen testified that he mistakenly failed to assign
VIPs requesting her three or four times during Broadway show
nights, which are very busy nights. He attributed his error to
failing to note that he did not see the request in the computer
reservation system and that some of the patrons had lengthy
requests. (Tr. 1161.)
Ambroa testified that he asked Lewis once who she wanted
as customers when too many patrons requested her as a server.
(Tr. 862.) Ambroa, testifying about Lewis’ assignments over
the contested period, said that she was assigned VIPs almost
every night that VIPs were in the restaurant and was not rotat-
ing as frequently as other servers to less desirable stations.
Two other VIP servers are plaintiffs in the law suit and still
employed by Artista.
Host McMillon testified that a couple of customers, when
leaving the restaurant, complained that they were not seating in
Lewis’ section. McMillon apologized. The customers stated
that they preferred Lewis to the assigned server because Lewis
gave them better service.
Lewis also contended that she was sent home early seven to
eight times from October to her termination, but did not present
specific dates nor did she present her records. (Tr. 261.)
Artista’s payroll records reflected that it employed less serv-
ers between October 2015 and March 2016. Ambroa con-
firmed that Artista suffered lower sales in that time. Lewis
remained within the top five servers within the same period.
Other servers, also members of the FLSA action, also had in-
creases in pay while others not involved had decreases. (R.
Exh. 17.)29
B. Charging Party Lewis is Discharged
On April 5, 2016, Respondent terminated Lewis for racial
and derogatory comments. The termination process started

27 Host Keith McMillon testified that Nguyen sometimes would
make changes without explanations. He further testified that Nguyen
was “a jerk” to other employees.
28 Respondent asked Lewis whether customers would be upset with
the restaurant should they not be seating with the requested server. (Tr.
249–250.)
29 Respondent also presented a lengthy exhibit about the assignment
of tables on each date Lewis worked, which also showed the number of
guests and the location of the tables. Ambroa stated for all assignments
except the one specifically presented by Lewis, that she received a fair
assignment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
with employees complaining to HR about the working atmos-
phere at Artista. The Human Resources Manager, Patricia Qui-
nonez, conducted an investigation in which she interviewed the
Artista employees. During the process, Lewis complained
about another server, Cecilia Blanco. By this time, Blanco was
terminated. Lewis said she complained about Blanco for a year
about Blanco’s cursing and rudeness.30
Ambroa did not receive any complaints in March 2016, but
stated that employees called Human Resources. Quinonez
called Ambroa about the complaints in mid to late February
2016 about the “hostile environment,” created allegedly by
Lewis and Blanco. However, Ambroa said employees did not
complain because Blanco and Jeloni had an incident. (Tr. 941.)
About March 23, 2016, Quinonez, with Ambroa present, in-
terviewed approximately 17 employees and typed her notes on
March 24, 2016. (Tr. 441; R. Exh. 14.) The notes were re-
turned to Artista, where the employees could review and sign
their statements. The statements included information about
Blanco as well as Lewis. A number of the statements dis-
cussed that Blanco cursed in front of guests. Many of the
statements discussed Lewis’ attitude, such as screaming to have
glasses polished. One statement said Lewis was always recruit-
ing employees for the lawsuit and talked about taking evidence
of racism to an attorney. Some denied intimidation from Lew-
is, while others stated Lewis made racists statements to them.
Yet others said Lewis and Blanco created significant stress
because of their tempers. In regards to Lewis, the stress came
from her screaming in the kitchen. One kitchen employee did
not complain about either Lewis or Blanco, but only about the
male employees.
Respondent contended that the investigation revealed that
Lewis, who is African American, had difficulties getting along
with Hispanic staff. These alleged difficulties included telling
others that they should speak English, that she threatened to call
immigration on them, and called them wetbacks and “lazy and
stupid.” In her testimony, Lewis categorically denied calling
another employee a racially charged name. She denied that she
was ever disciplined for calling another coworker a racially
charge name or using a racial slur. She also testified at length
that if she knew an employee did not understand English, she
would ask a bilingual employee to translate for her.
For Lewis, Quinonez considered that Lewis had a previous
warning for similar conduct involving derogatory racial com-
ments. Quinonez discussed the finding of her investigation
with Espinoza. They decided to terminate Lewis because of
racial and derogatory comments. (Tr. 502.) Ambroa agreed
because 15 employees told him about Lewis’ behavior, her two
earlier suspensions and the October incident in which Lewis
received no discipline.
Quinonez telephoned Lewis for a meeting and Lewis went to
her office at corporate headquarters. Quinonez presented Lewis
with a Personnel Action Form noting the termination. The rea-
sons for termination were stated as “Violation of Company
Policy.” The notes elaborated that Lewis made inappropriate
comments to coworkers regarding national origin, race and

30 Blanco was terminated. She was not involved with the FLSA ac-
tion.
color. It further stated she used derogatory terms to coworkers,
such as wetbacks and Mexicans, confronted coworkers whether
they spoke English, spoke rudely and unprofessionally to
coworkers and was disrespectful towards supervisors and man-
agement. Lastly, it stated that she failed to improve behavior
after counseling. (GC Exh. 8.)
Lewis was not told of these allegations during the investiga-
tion. Instead Quinonez set up a meeting in which Lewis was
terminated. During the meeting, after some small talk, Qui-
nonez told Lewis that an investigation of another employee
revealed that Lewis also had made inappropriate comments to
an employee. Quinonez told her the company decided to ter-
minate Lewis and it was out of Quinonez’ hands. Lewis was
reading the termination notice and asked Quinonez to explain.
Lewis said she had a multi-racial and ethnicity background and
one parent was an immigrant. She asked if Quinonez was kid-
ding and protested, “Patricia, you know me, I don’t talk like
this.” Quinonez responded that she was just the messenger and
that was what she was told. Lewis asked who told her these
things. Quinonez said she received reports from several differ-
ent kitchen employees and the company was working to rectify
things. Lewis then asked if anyone else was terminated. Qui-
nonez said no. Lewis asked for previous write-ups, which Qui-
nonez said she could not provide due to privacy issues.
Some employees testified on behalf of Respondent about
their statements. However, I give more credence to Quinonez’
documented investigation summary. All witnesses testifying
about Lewis’ conduct demonstrated personal hostility towards
Lewis. Ingalls Steel Construction Co., 126 NLRB 584, 593
(1960). The employees testified about Lewis yelling at them,
sometimes with the term “wetback” or allegedly threatening to
call immigration. Not all of the statements taken by Quinonez
supported these accusations. For example, Maria “Ruby” Gar-
za testified that Lewis yelled at her in front of customers and
the statements said the yelling was primarily in the kitchen.
She told Quinonez that Lewis was trying to recruit employees
for the lawsuit, but then testified she never made such a state-
ment. Eduardo “Lalo” Vera, a kitchen manager, testified that
Lewis frequently called kitchen workers stupid. His testimony
was contradicted by Ambroa, who never heard Lewis make
such statements.
Noelia Herrera, who worked at the salad station, testified that
Lewis cursed at the kitchen help; however, her statement to
Quinonez never mentioned Lewis cursing and instead only
attributed cursing to Blanco. (Tr. 685, 695, 697; R. Exh. 14.)
Herrera then discussed an incident from early 2015, which she
reported Lewis to General Manager Ambroa; Respondent’s
counsel attempted to refresh her memory with a document that
she admittedly never saw before Respondent presented it to her
on the stand. (Tr. 687–690.) Herrera also stated she was afraid
Lewis would hit her and Lewis threw things at her, which again
is inconsistent with her statement to Quinonez. In one instance,
Herrera testified Lewis threw a salad in the trash because the
lettuce was not crisp; the statement did not discuss throwing the
salad away, only that Lewis screamed about it by allegedly
calling the employees wetbacks and saying they needed to re-
turn to their county because they do not speak English. (Tr.
691, 698, 700, 702; R. Exh. 14.)
CORDÚA RESTAURANTS, INC. 27
Some of the employee witnesses testified that Lewis was not
a good server, which flies in the face of her assignment as a
VIP server and the testimony of management witnesses. Am-
broa testified that Lewis was a very good server. (Tr. 855.)
Herrera said Lewis could not take care of her tables. How
she knew about Lewis’ ability to serve was not identified. On a
1 to 10 scale for her server abilities, Vera rated Lewis as a 5.
Daniel Perez, a busser, also stated he did not report Lewis’
threats to call immigration before Quinonez’ investigation.
Perez also stated that each day Lewis demanded that he per-
form duties such as bringing more forks or knives, or carrying
heavy trays. I discredit his testimony as he had an ax to grind
against Lewis, particularly when he discussed Lewis making
him carry heavy trays, and he was inconsistent with Quinonez
and the other employees about how he signed his statements.
Lucy Minnie Kline, who works as a hostess, server and
sometimes caterer, worked at Artista with Lewis in late 2013
and a few months in 2014. She testified that, in 2013, Lewis
assailed her about her role change based upon Kline’s upcom-
ing sex change operation/transition and she tried to avoid her
after that incident. She said she reported the incident to Assis-
tant Manager Reichman. (Tr. 795.) She said Lewis would pay
bussers to reset her station when she first started and when the
bussers refused, Kline heard Lewis say under her breath,
“Fucking wetbacks.” (Tr. 796.) She also claimed Lewis called
her “faggot.” Kline maintained that Lewis was the only person
who called her names. However, I discredit that testimony.
Her testimony involved a few months approximately three
years before Lewis’ termination. Kline said that she appeared
voluntarily; however, she called Respondent’s counsel her at-
torney and said she had to listen to him. The 2016 investigation
into Lewis’ conduct did not reveal any cursing (with the excep-
tion of Perez, who is discredited), so it was unlikely that Lewis
did so in 2013. Morales, who worked with Kline before the
transition, noted that a number of others also called Kline
names in 2014; however, he did not know if anyone reported
the name calling. (Tr. 1124–1125.)
Employee Hofman, who worked with Lewis frequently on
evening shifts for at least two years, stated that she expected
people to do their jobs and told them when they were not “pull-
ing their weight.” He said she was not arguing, but would tell
servers or kitchen staff when they did not perform their work.
Hofman gave an example of when she told kitchen staff how an
item was to be done and it came out incorrectly, then she told
them it was done incorrectly. Hofman said her behavior was
“venting.” He denied that he ever heard her use an ethnic slur,
only hearing her say, “What an idiot” or “what a dummy.” (Tr.
343–344.) She instead judged people on their work. (Tr. 348.)
He heard her express frustration but said was not the only staff
member to do so.
C. Lewis’ Prior Disciplinary History
1. 2014 incidents
On March 9, 2014, Artista Assistant Manager Reichman
wrote up Lewis after she witnessed Lewis and kitchen worker
Noelia Herrera in an argument. Reichman could not recall
whether Herrera was also written up. (R. Exh. 1.) Ambroa
recalled that he gave Lewis a suspension because Lewis was
screaming and “in [Herrera’s] face.” (Tr. 839–840.) The dis-
ciplinary action did not include a signature from a manager.
Lewis stated that Herrera physically assaulted her and Ambroa
testified that Herrera was only looking down and crying. Assis-
tant Manager Reichman only recalled this one incident and
testified that it did not relate to race.
On December 21, 2014, Assistant Manager Nguyen wrote up
Lewis for alleged insubordination when she refused to move,
replace and organize chairs at the end of a shift. I question the
date as Nguyen was not promoted until Reichman was termi-
nated in 2015. Lewis told Nguyen, who locked the doors to the
facility, he could not hold the staff hostage and she exited
through the back, which apparently was the only exit not
locked. Nguyen believed her spoke with Lewis about the disci-
pline, but did not testify to any specific recollections. (Tr.
1157–1158.) No disciplinary action was marked on the writeup
and Lewis allegedly declined to sign when presented with it.
(R. Exh. 6.)
2. October 2015 incident
Nguyen gave Lewis a second warning and suspension for
yelling at another server for serving a spoiled dessert. (R. Exh.
7.) The disciplinary action form does not accurately reflect the
events.
Lewis came into the kitchen, admittedly yelling for Kitchen
Manager Eduardo “Lalo” Vera. The day after the incident,
General Manager Ambroa, who was not present at the time,
was apparently accosted by kitchen employees complaining
about Lewis. He took five employee statements, which the
employees signed. The employee statements were in English,
although some spoke primarily Spanish and Ambroa translated
the statements for them. Most of the statements show that
Lewis said, “Y’all are looking at me like y’all don’t speak my
language.” Employee Anjelica Franco, who said Lewis yelled
“dumb foreigners,” included an observation: “Everything for
one dessert that a guest did not like.” (R. Exh. 13.)31
HR Manager Quinonez and Ambroa met with Lewis. Dur-
ing this investigatory interview, Lewis was advised that other
employees complained about her. Lewis had gone to the kitch-
en and yelled for Vera. Lewis testified that she never called
anyone a “dumb foreigner.” She also denied that she called
anyone “stupid” but did use the word. She had an immediate
concern about the guest and an additional concern that no other
guest be served the spoiled dessert. Lewis denied that she criti-
cized anyone for not speaking English and further denied that
she called anyone “fucking dumb people.” Lewis denied that
she had a bad attitude. She denied that she was told this would
be her last opportunity to improve and that any further insubor-
dination would not be tolerated. She said she told the inter-
viewers that she was yelling upstairs over the kitchen because
the kitchen was loud and she needed to get the attention of the
managers, whose offices were above the kitchen. She said
Nguyen confirmed that she was not angry. According to Lew-
is, Quinonez said that it could have been due to a language
barrier, miscommunication and some misunderstanding. (Tr.

31 Ambroa’s testimony about the statements included leading about
the review of statements and obtaining signatures.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
277–278.) Lewis testified that she was not offered a discipli-
nary form to sign and did not was not given a write-up and
Quinonez never led her to believe that she could receive disci-
pline for the incident. The disciplinary action form itself notes
Lewis refused to sign the form. (R. Exh. 7.)
Quinonez testified that she received the handwritten notes
taken of the investigation from Manager Ambroa. (Tr. 435; R.
Exh. 13.) In the meeting, Quinonez discussed the accusations
from the kitchen employees with Lewis at Artista. Lewis told
her no one liked her. Quinonez testified that said she was not
going to give Lewis a write-up but it was the last opportunity
for her to stop this behavior. They hugged and Lewis left the
room. (Tr. 435–437.) Quinonez later testified that she did not
terminate her in October 2015 because she was involved with
the lawsuit, was a great server and did not want to terminate her
incorrectly. She instead coached her. (Tr. 462–462.)32
3. December 2015: Nguyen and Ambroa complain about
Lewis’ conduct
About the same time as Lewis raised the validity of the arbi-
tration agreement, on December 9, 2015, Assistant Manager
Nguyen sent to Ambroa an email about Lewis challenging his
authority. The email, requested by Ambroa, confirms that
Lewis complained about several items, including not receiving
certain assignments, having to perform extra work when a pre-
vious server did not perform side work to her standards. Ngu-
yen said she threatened to call the corporate offices to make
them aware of the issues. Nguyen further stated she made
“sporadic” accusations in front of other team members and he
was feeling harassed because of her “petty, selfish issues inside
and outside the restaurant.” (R. Exh. 21.)33
On December 10, Ambroa forwarded Nguyen’s email with
his own comments to Espinoza and Quinonez. Ambroa said
Lewis was late a couple of times each week; if he corrected her,
she threatened to call her lawyer or would say it was because
she was black or a woman. However, he then testified that he
remembered “that incident.”34 Ambroa said Lewis always was
assigned to the main floor and received her call parties. The
email continued:
This is very stressful for the whole team. SHE NEEDS TO
GO!!
I do understand the situation with her, but what we had

32 Ambroa testified that he wanted her terminated at that time and
Lewis said nothing in her own defense. He apparently had made up his
mind before the meeting and cited the previous incidents with Lewis as
reason enough to terminate her. (Tr. 855–856.) Given Lewis’ history
of standing up for herself, I find it difficult to believe that Lewis took
the complaints without response. In addition, I discredit that Quinonez
told Lewis she was on her last chance based upon Ambroa’s December
10 email, in which Ambroa said no disciplinary action was taken.
33 Nguyen testified that Lewis was respectful with most people but
she would pound the bar if she did not obtain the drink order, even if
she made the mistake in entering the order, or she would demand food
quickly and out of order from the kitchen. He was not specific in when
these events occurred.
34 Neither Ambroa nor Nguyen gave Lewis discipline for tardiness.
(Tr. 859.)
to put up is intolerable. If she would be another staff
member, she would have been fired 10 times already. The
last incident that happened at the restaurant with the kitch-
en, when Patricia [Quinonez] came over, there was no cor-
rection action taken. This situation has to be stopped to-
day, we cannot let her do whatever she wants just because
she is part of a lawsuit. I can get 15–20 team members to
testify against her, relating to all of her misconduct while
at work.
(R. Exh. 21.)
Remarkably, nothing was mentioned about creating stress
over race except for her allegation that actions were taken be-
cause she was black. Ambroa himself never heard Lewis use
the language that the other employees claimed she used. (Tr.
976.) If she used language such as “fuck” or “shit,” it was nev-
er directed towards anyone. (Tr. 990.) He heard her yell up to
the office if she wanted to talk to him. He recalled an incident
in which Lewis became rude with Perez for an incident with
missing salad cards, which somehow were thrown away and
Perez retrieved. However, he never testified that Lewis used
racial epithets or threats during this incident.
4. Disparate treatment evidence
Respondent presented several terminations for alleged inap-
propriate conduct. In August 2015, Respondent terminated
Kaveh Barazandeha, a server who had been employed two to
three years, for rudeness towards another employee after Qui-
nonez performed an investigation. Respondent provided no
notes of investigation or statements of other employees who
supposedly witnessed the incident. (R. Exh. 18.)35 Quinonez
said he was an average server. Another server, Jacob Avila,
was terminated for “negative attitude” and lack of attentiveness
to a customer; he also was on his “last strike” and the records
do not reflect what the previous disciplines, if any, were. On
June 5, 2015, a third employee allegedly made an inappropriate
comment in front of a guest and refused to provide a children’s
menu. He too was terminated.
Anecdotal notes for a fourth employee indicate he was ter-
minated in June 2015 for vandalism or destruction of property
after he threw water on the computer sales system and threw
other objects in the floor and yelled. His personnel action form
records the termination as “inappropriate behavior” and throw-
ing the water on the computer system.
In 2014, Lewis reported racial discrimination, including
bussers making derogatory comments about the work ethic of
black people. (GC Exh. 13.) Quinonez met with Lewis, alt-
hough Manager Green conducted the investigation. In the
meeting, Lewis told Quinonez that she declined to file a formal
complaint and did not want to get anyone fired. (Tr. 504.)
Lewis also emailed Green and thanked her for taking “swift
action” on the matter. (R. Exh. 19.)
The records also reflect that Cecilia Blanco, who was inves-
tigated simultaneously with Lewis, was terminated for “mis-
conduct” on March 23, 2016. Blanco’s checkered history in-
cluded “flipping birds” while on the work floor and cursing.

35 Quinonez twice started to say, “And he had previous . . .” then
changed to talk about conducting an investigation. (Tr. 463.)
CORDÚA RESTAURANTS, INC. 29
D. Analysis
1. Lewis’ additional protected concerted activity and
Respondent’s knowledge
Lewis had two additional incidents of protected concerted
activity: the first, her statements in the meeting about the arbi-
tration agreement; and second, the statement of another em-
ployee reporting her for recruiting fellow employees for the
FLSA action against Respondent.
When employees make a complaint to fellow employees, it
is “inherently concerted because it involves a speaker and lis-
teners.” Belle of Sioux City, 333 NLRB 98, 2015 (2001). Also
see Component Bar Products, Inc., 364 NLRB No. 140 (2016).
When an employee enlists the support of fellow employees in a
group-meeting context, “‘a concerted objective may be inferred
from the circumstances.’” Cibao Meat Products, 338 NLRB
934 (2003), citing Whittaker Corp., 289 NLRB 933, 934
(1988). Also see: AdvoServe of New Jersey, Inc., 363 NLRB
No. 143 (2016); CKS Tool & Engineering Inc. of Bad Axe, 332
NLRB 1578, 1285–1586 (2000); MPMc Inc. v. NLRB, 813 F.3d
475, 483 (3d Cir. 2016). Although a statement in a meeting
may have a selfish interest, that interest does not make a con-
certed action unprotected. Boothwyn Fire Co. No. 1, 363
NLRB No. 191, slip op. at 7 (2016), citing Fresh & Easy
Neighborhood Market, 361 NLRB 151, 154–156 (2014).
Lewis’ comments at the pre-shift meeting about the arbitra-
tion agreement to Nguyen were protected and concerted. De-
spite prefacing her remarks about not speaking for other em-
ployees, Lewis’ statements were not just personal gripes, but
issues relevant to the future employment of all employees at-
tending the meeting. Another employee joined in supporting
her concerns, including questioning whether to seek advice
from an attorney before signing and obtain a legible copy of the
agreement, which reflects the true nature of concerted activity.
MPMc v. NLRB, 813 F.3d at 485.
The second incident is revealed during Quinonez’ investiga-
tion in March 2016: Lewis was recruiting employees to partic-
ipate in the FLSA action. As noted above, participating in a
suit or arbitration about wages is protected. Asking employees
to participate is also protected.
2. Alleged decrease in assigned tables for Lewis does not vio-
late Section 8(a)(1) of the Act
I find that General Counsel did not demonstrate that Re-
spondent significantly changed Lewis’ tables and guest assign-
ments from October 2015 through her termination in March
2016. Nguyen admitted to a few mistakes and Ambroa testified
to the assignments in that period, which appeared to be equita-
ble. Lewis’ testimony about other employees saying Artista
was busy during certain times when she was cancelled was not
corroborated.
3. Respondent’s discharge of Lewis violates Section 8(a)(1) of
the Act
General Counsel presented a prima facie case. Respondent’s
reasons for termination are pretextual in light of its long history
of tolerating Lewis’ alleged conduct.
i. Additional credibility determinations
I credit Ambroa never heard Lewis use the language for
which she was accused. Further, Respondent did not establish
that Ambroa would not have had an opportunity to hear any
offending language. He worked as an expediter in the kitchen
yet denied hearing any of the language the kitchen employees
claimed. This information corroborates Lewis’ claim that she
did not use that language directed toward other employees. The
December 9–10 email from Nguyen and Ambroa also fail to
mention any of the alleged racial comments for which Lewis
was terminated; they instead concentrated on her demands and
temperament. Again, the failure to mention that conduct sup-
ports a finding that Lewis was not engaged in making such
racially charged statements for which she was ultimately termi-
nated.
I also credit Hofman’s testimony about Lewis’ conduct. His
testimony is forthright and clear. He also is a current employee
testifying against pecuniary interests, which makes his testimo-
ny particularly reliable. Rocky Mountain Eye Center, 363
NLRB No. 34, citing, inter alia, Unarco Industries, 197 NLRB
489, 491 (1972); Gateway Transportation Co., 193 NLRB 47,
48 (1971); Georgia Rug Mill, 131 NLRB 1304 fn. 2 (1961).
Ultimately, I credit Lewis’ denials of such conduct. Ozburn-
Hessey Logistics, LLC, 833 F.3d at 220–222. She was straight-
forward in her testimony and did not waiver. Nguyen said that
he thought she sometimes wanted too much perfection in her
service, and that I can believe: Her testimony demonstrated she
was all about putting the customers first and giving service
beyond any expectations. See generally Transport America,
320 NJLRB 882, 887–888 (1996).
ii. Respondent’s actions demonstrate animus and pretext
Respondent argues that the only evidence of animus is its
general opposition to the FLSA action. A noted previously,
evidence of pretext also serves as evidence of animus.
The investigation into Blanco, based upon Lewis’ com-
plaints, turned into an investigation of Lewis. The investigation
revealed to Quinonez that Lewis was recruiting other employ-
ees to participate in the FLSA action. As previously noted,
participation in the FLSA action is protected concerted activity,
and talking with others to join the suit has the same result. Al-
ternative Energy Applications, Inc., 361 1203, 1206 fn. 10
(2014).
Respondent relies heavily upon the information gleaned in
its March 2016 investigation. The evidence from these inci-
dents is non-specific. The incidents could be before October
2015, or refer to the same incidents. The testimony provided
by employees did nothing to clarify when the incidents oc-
curred.
In addition, Ambroa’s December 10, 2015 email stated that
he had 10 to15 employees who would testify against her. He
apparently relied upon these same employees for the March
2016 investigation, but Respondent waited approximately 3
months before taking any action. Timing indicates that Re-
spondent, which tolerated Lewis’ actions for at least three
months, now decided termination was necessary to prevent her
from making certain statements or recruiting other employees.
This toleration lends itself to a finding of animus. Andronaco
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
Inc., d/b/a Andronaco Industries, 364 NLRB No. 142, slip op.
at 13 (2016). It also shows Respondent had a tolerance for
Lewis’ alleged conduct problems. Id.36 Also see Compuware
Corp., 320 NLRB 101, 102 (1995), enfd. 134 F.3d 1285 (6th
Cir. 1998), cert. denied 523 U.S. 1123 (1998) (employer termi-
nated an employee already engaged in protected activities be-
cause of a perception that the employee might continue to do
so); Lou’s Transport, Inc., 361 NLRB 1446 (2014).
I can only conclude that Respondent terminated Lewis, not
because of the claimed racially insensitive remarks, but because
it noted she was engaged in further efforts to recruit fellow
employees in the FLSA action and in other protected activities,
such as speaking out at employee meetings. Alternative Energy
Applications, Inc., 361 NLRB 1203; Paraxel Int’l., supra. Also
see Andronaco, 364 NLRB No. 142, slip op. at 1 fn. 1. Timing
of Respondent’s last discovery that Lewis was recruiting others
to join the FLSA action, during the investigation, persuades me
that Respondent did not want any more recruitment of employ-
ees for the FLSA action. Conley Trucking, 349 NLRB at 323
(timing of Respondent’s conduct as indicator of animus).
For the March 2016 investigation, Respondent simply ac-
cepted complaints about Lewis and never gave her a chance to
explain or defend herself. When an employer fails to conduct a
meaningful investigation and fails to give the alleged discrimi-
natee an opportunity to explain herself, both demonstrate dis-
criminatory intent. Andronaco, 364 NLRB No. 142, slip op. at
14, citing inter alia, Ozburn-Hessey Logistics, LLC v. NLRB,
609 Fed. Appx. 656, 658 (D.C. Cir. 2015), enfg. 357 NLRB
1632 (2011). Also see Sociedad Esponanola de Auxilio Mutuo
Y Benefencencia de P.R., 342 NLRB 458, 459–460 (2004),
enfd. 414 F.3d 158 (1st Cir. 2005). As noted in the credibility
section, the complaints about Lewis’ behavior do not say when
they occurred and Ambroa’s December email already said he
had over 10 people to testify against her.
Respondent contends that its termination of Blanco, who was
not involved with the FLSA action, demonstrates that it took
the same action regardless of protected activity. I disagree as I
discredit the complaints about Lewis.
Respondent also contends that it terminated employees for
complaints about behavior. In examining the complaints, at
least two were terminated for guest complaints, not other em-
ployee complaints. The employee who threw items, including
water on the computer system, is not analogous to the conduct
for which Respondent terminated Lewis. (R. Exh. 18).
I therefore find that Respondent violated Section 8(a)(1) by
terminating Lewis.
CONCLUSIONS OF LAW
1. Respondent Cordúa Restaurants, Inc. is an employer
within the meaning of Section 2(2), (6) and (7) of the Act.
2. The following are supervisors within the meaning of Sec-
tion 2(11) of the Act and/or agents within the meaning of Sec-
tion 2(13) of the Act:

36 Respondent argues that Lewis’ alleged statements to Kline in 2013
demonstrate Lewis began such conduct shortly after her hire. Even if I
credited Kline’s testimony, Respondent did nothing to correct the situa-
tion for a number of years.
3. Respondent maintained the following handbook provi-
sions that are overly broad and violate Section 8(a)(1):
a. Under Standards of Conduct, a provision that states “con-
duct that is disruptive, non-productive . . . , is strictly prohibit-
ed.
b. Prohibiting “solicitation on Company premises” without
designating areas in which solicitation would be permitted or
when solicitation would be permitted.
c. Prohibiting employees from engaging in Section 7 activi-
ties by “leaving Company premises or work location during
working hours without permission of your supervisor”.
d. Prohibiting employees from engaging in Section 7 activi-
ties by threatening discipline for “Committing other acts
which tend to bring the Company into disrepute.”
e. Prohibiting employees from engaging in Section 7 activi-
ties by prohibiting “Arguing.”
f. Prohibiting employees from talking about wages, hours and
terms and conditions of employment to the media and press;
g. Prohibiting employees from bringing cellular telephones
and pages onto the premises, which prohibits Section 7 activi-
ties during breaks and in non-working areas, and prohibit re-
cording in Company facilities.
4. Since about September 29, 2015, Respondent violated
Section 8(a)(1) of the Act by promulgating and maintaining an
arbitration agreement that precluded employees from concert-
edly participating in the protected activities of class action or
collective action lawsuits and/or arbitrations.
5. About December 2015, Respondent violated Section
8(a)(1) of the Act by telling employees they should not bite the
hand that feeds them while requiring employees to sign an arbi-
tration agreement.
6. On September 10, 2015, Respondent violated Section
8(a)(1) of the Act when it terminated Charging Party Steven
Ramirez because he concertly complained about wages, hours
and terms and conditions of employment by filing a class action
lawsuit.
7. On April 5, 2016, Respondent violated Section 8(a)(1) of
the Act when it terminated Charging Party Shearone Lewis for
concertly complaining about wages, hours and terms and condi-
tions of employment by joining Ramirez’ FLSA action, for
speaking out at employee meetings, and for recruiting employ-
ees to join the FLSA action.
8. The unfair labor practices committed by Respondent af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that Respondent Cordúa Restaurants, Inc. has
engaged in certain unfair labor practices I find it must be or-
dered to cease and desist therefrom and to take certain affirma-
tive actions designed to effectuate the policies of the Act.
The standard affirmative remedy for maintenance of unlaw-
ful work rules is immediate rescission of the offending rules;
this remedy ensures that employees may engage in protected
activity without fear of being subjected to the unlawful rule.
Schwan’s Home Service, supra, citing Guardsmark, LLC, 344
NLRB 809, 812 (2005), enfd. in rel. part 475 F.3d 369 (D.C.
CORDÚA RESTAURANTS, INC. 31
Cir. 2007). Respondent may comply with the Order by rescind-
ing the unlawful handbook rules and republishing its employee
handbook without the, and rescinding the provisions found
unlawful.
Companywide notice posting is appropriate because the rec-
ord shows that the Respondent’s unlawful arbitration agreement
and unlawful work rules contained in the employee handbook
apply to employees at all of the Respondent’s restaurants.
“[W]e have consistently held that, where an employer’s over-
broad rule is maintained as a companywide policy, we will
generally order the employer to post an appropriate notice at all
of its facilities where the unlawful policy has been or is in ef-
fect.” MasTec Advanced Technologies, 357 NLRB 103, 109
(2011) (quoting Guardsmark, LLC, 344 NLRB at 812). I shall
order that the Respondent post a notice at all locations where
the arbitration agreement and overly broad employee work
rules were in effect. Because of the transfers between the facil-
ities, the companywide posting will include rescission of the
disciplinary actions.
The make whole remedy shall be computed in accordance
with F.W. Woolworth Co., 90 NLRB 289 (1950), with the in-
terest at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), and compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010). In accordance with King
Soopers, Inc., 364 NLRB No. 93 (2016), Respondent shall
compensate Steven Ramirez and Shearone Lewis for search-
for-work and interim employment expenses regardless of
whether those expenses exceed his interim earnings. Search-
for-work and interim employment expenses shall be calculated
separately from taxable net backpay, with interest at the rate
prescribed in New Horizons, supra, compounded daily as pre-
scribed in Kentucky River Medical Center, supra. Additionally,
Respondent shall compensate Steven Ramirez and Shearone
Lewis for the adverse tax consequences, if any, of receiving a
lump-sum backpay award. Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB 101 (2014). In accordance with Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016), Re-
spondent shall, within 21 days of the date the amount of back-
pay is fixed either by agreement or Board order, file with the
Regional Director of Region 16 a report allocating the backpay
awards to the appropriate calendar year for each employee. The
Regional Director will then assume responsibility for transmis-
sion of the report to the Social Security Administration at the
appropriate time and manner.
Respondent shall also be required to remove from its files
any and all references to the unlawful discipline imposed on
these employees, and within 3 days thereafter to notify them in
writing that this has been done and that the discipline will not
be used against them in any way
General Counsel also asks that the remedy for the discrimi-
natees include consequential costs. As the Board has not de-
termined that these are compensable, I decline to so rule.
ORDER
Respondent Cordúa Restaurants, Inc., by its officers, agents,
successors and assigns, shall:
1. Cease and desist from:
a. Maintaining the following unlawful rules in its employee
handbook:
i. Under Standards of Conduct, a provision that states
“conduct that is disruptive, non-productive . . . , is
strictly prohibited.
ii. Prohibiting “solicitation on Company premises”
without designating areas in which solicitation would
be permitted or when solicitation would be permitted.
iii. Prohibiting employees from engaging in Section 7
activities by “leaving Company premises or work loca-
tion during working hours without permission of your
supervisor”.
iv. Prohibiting employees from engaging in Section 7
activities by threatening discipline for “Committing
other acts which tend to bring the Company into disre-
pute.”
v. Prohibiting employees from engaging in Section 7
activities by prohibiting “Arguing.”
vi. Prohibiting employees from talking about wages,
hours and terms and conditions of employment to the
media and press.
vii. Prohibiting employees from bringing cellular tele-
phones and pages onto the premises, which prohibits
Section 7 activities during breaks and in non-working
areas.
b. Promulgating and maintaining a mandatory arbitration
program that requires employees, as a condition of employ-
ment, to waive the right to maintain class or collective actions
in all forums, whether arbitral or judicial.
c. Telling employees that they should not bite the hand that
feeds them and threatening them with lack of scheduling if
they fail to sign a new arbitration agreement;
d. Discharging employees because they engage in protected
concerted activities.
e. In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
a. Rescind the following unlawful rules contained in Re-
spondent’s employee handbook:
i. Prohibiting “solicitation on Company premises”
without designating areas in which solicitation would
be permitted or when solicitation would be permitted.
ii. Prohibiting employees from engaging in Section 7
activities by “leaving Company premises or work loca-
tion during working hours without permission of your
supervisor”.
iii. Prohibiting employees from engaging in Section 7
activities by threatening discipline for “Committing
other acts which tend to bring the Company into disre-
pute.”
iv. Prohibiting employees from engaging in Section 7
activities by prohibiting “Arguing.”
v. Prohibiting employees from talking about wages,
hours and terms and conditions of employment to the
media and press.
vi. Prohibiting employees from bringing cellular tele-
phones and pages onto the premises, which prohibits
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
Section 7 activities during breaks and in non-working
areas, and prohibiting recording on Company premis-
es.
b. Furnish employees with inserts for the current employee
handbook that (1) advise that the unlawful provisions have
been rescinded, or (2) provide lawfully worded provisions on
adhesive backing that will cover the unlawful provisions; or
publish and distribute to employees revised employee hand-
books that (1) do not contain the unlawful provisions, or (2)
provide lawfully worded provisions.
3. Rescind the mandatory arbitration program in all of its
forms, or revise it in all of its forms to make clear to employees
that the arbitration program does not constitute a waiver of their
right to maintain employment-related joint, class, or collective
actions in all forms.
a. Notify all applicants and current and former employees
who were required to sign or otherwise become bound to the
mandatory arbitration program in any form that it has been re-
scinded or revised and, if revised, provide them a copy of the
revised program.
b. Within 14 days from the date of the Board’s Order, offer
Steven Ramirez and Shearone Lewis full reinstatement to
their former jobs or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
c. Make Steven Ramirez and Shearone Lewis whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the
remedy section of the decision.
d. Within 14 days from the date of the Board’s Order, remove
from its files any
reference to the unlawful discharges, and within 3 days there-
after notify the employees in writing that this has been done
and that the discharges will not be used against them in any
way.
e. Compensate Steven Ramirez and Shearone Lewis for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards, and file with the Regional Director for Re-
gion 16 within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allocating
the backpay awards to the appropriate calendar year for each
employee.
f. Within 14 days from the date of this Order, remove from its
files any reference to the unlawful discharges of Steven
Ramirez and Shearone Lewis and within 3 days thereafter,
notify the employees in writing that this has been done and
that the discharges will not be used against them in any way.
g. Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designed by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of back-
pay due under the terms of this Order.
h. Within 14 days after service by the Region, post at its met-
ropolitan Houston, Texas facilities copies of the attached no-
tice marked “Appendix.”37 The notices shall be posted in
English, Spanish and any other language deemed necessary
by the Regional Director. Copies of notice, on forms provid-
ed by the Regional Director for Region 16, after being signed
by Respondent’s authorized representative, shall be posted by
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electronically,
such as by email, posting on an internet or an internet site,
and/or other electronic means, if Respondent customarily
communicates with its employees by such means. Reasona-
ble steps shall be taken by Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other materi-
al. If Respondent has gone out of business or closed any of
its restaurants, Respondent s hall duplicate and mail, at its
own expense, a copy of the notice to all current and former
employees employed by Respondent at any time since March
24, 2015.38
4. It is further ordered that the Complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated Washington, D.C., December 9, 2016
APPENDIX
NOTICE TO EMPLOYEES
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten you by telling you not to bite the hand
that feeds you.
WE WILL NOT maintain a rule that restricts you in your rights
to engage in protected concerted activities by telling you that
conduct that is disruptive or non-productive is strictly prohibit-
ed.
WE WILL NOT maintain a rule that restricts you in your rights
to engage in protected concerted activities by telling you that
solicitation on Company premises is prohibited.
WE WILL NOT maintain a rule that restricts you in your rights
to engage in protected concerted activities by prohibiting you
from leaving Company premises or work location during work-

37 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
38 The first charge was filed on September 24, 2015 and Respondent
maintained its unlawful handbook rules since 2014. The 10(b) period is
applied.
CORDÚA RESTAURANTS, INC. 33
ing hours without the permission of your supervisor.
WE WILL NOT maintain a rule that restricts you in your rights
to engage in protected concerted activities by prohibiting you
from committing acts which tend to bring the Company into
disrepute.
WE WILL NOT maintain a rule that restricts you in your rights
to engage in protected concerted activities by prohibiting you
from arguing with fellow employees.
WE WILL NOT maintain a rule that restricts you in your rights
to engage in protected concerted activities by prohibiting you
from talking to the media and/or the press.
WE WILL NOT maintain a rule that restricts you in your rights
to engage in protected concerted activities by prohibiting you
from bringing cellular telephones or pagers on Company prem-
ises, or prohibit recording on Company premises.
WE WILL NOT promulgate and maintain a mandatory arbitra-
tion program that requires our employees, as a condition of
employment, to waive the right to maintain class or collective
actions in all forums, whether arbitral or judicial.
WE WILL NOT terminate you because you engaged in protect-
ed concerted activities, including participating or recruiting
employees to participate in a collective wage lawsuit or arbitra-
tion proceeding or speaking out about wages, hours, and terms
and conditions of employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL rescind and/or revise the unlawful rules as stated
above.
WE WILL furnish you with inserts for the current employee
handbook that (1) advise that the unlawful provisions have been
rescinded, or (2) provide lawfully worded provisions on adhe-
sive backing that will cover the unlawful provisions; or WE
WILL publish and distribute revised employee handbooks that
(1) do not contain the unlawful provisions, or (2) provide law-
fully worded provisions.
WE WILL rescind the mandatory arbitration program in all of
its forms, or revise it in all of its forms, or revise it in all of its
forms to make clear that the arbitration program does not con-
stitute a waiver of your right to maintain employment-related
joint, class, or collective actions in all forums.
WE WILL, within 14 days from the date of the Board’s Order,
offer Steven Ramirez and Shearone Lewis full reinstatement to
their former jobs or, if that job no longer exists, to a substantial-
ly equivalent position, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
WE WILL make Steven Ramirez and Shearone Lewis whole
for any loss of earnings and other benefits resulting from their
unlawful discharges, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharges
of Steven Ramirez and Shearone Lewis, and WE WILL, within 3
days thereafter, notify each of them in writing that this has been
done and that the discharges will not be used against them in
any way.
CORDÚA RESTAURANTS, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/16-CA-160901 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.