EYM King of Missouri d/b/a Burger King

National Labor Relations Board - Administrative Judge Opinions

Sep 29, 2017

14-CA-188832 (N.L.R.B. Sep. 29, 2017)

JD-82-17
Kansas City, MO
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WASHINGTON, DC
EYM KING OF MISSOURI, LLC,
d/b/a BURGER KING
and Case 14–CA–188832

WORKERS ORGANIZING
COMMITTEE—KANSAS CITY
Rebecca Proctor, Esq.,
for the General Counsel.
John L. Ross, Esq.,
for the Respondent.
Fred Wickham, Esq.,
for the Charging Union.
DECISION
STATEMENT OF THE CASE
Christine E. Dibble, Administrative Law Judge. This case was tried in Overland Park,
Kansas on June 30, 2017. The Workers’ Organizing Committee—Kansas City
(“WOCKC/Union”) filed the charge in case number 14–CA–188832 on November 28, 2016.1
The General Counsel issued the complaint on March 28, 2017. On April 6, 2017, EYM King of
Missouri, LLC d/b/a Burger King (“the Respondent”) filed a timely Answer to the complaint and
notice of hearing. On June 27, 2017, the Respondent filed an amended Answer.
The complaint alleges that the Respondent violated Section 8(a)(1) of the National Labor
Relations Act (“NLRA/the Act”) when: (1) on or about November 28, the Respondent, through
Wendell Toombs (“Toombs”), threatened employees with discipline up to and including
termination if they engaged in a protected work stoppage; and (2) told employees that after he
terminated then for engaging in a protected work stoppage, he would falsify the reasons for their
terminations.2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Union, and the Respondent, I make
the following

1 All dates are in 2016 unless otherwise indicated.
2 These allegations are alleged in paragraphs 5(a) and (b) of the complaint.
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FINDINGS OF FACT
I. JURISDICTION
5
The Respondent, a limited liability company, engaged in the retail operation of Burger
King franchise restaurants selling food and beverages to the general public, including at its
restaurants located at 1102 East 47th Street, Kansas City, Missouri. During the 12-month period
ending November 20, the Respondent derived gross revenues in excess of $500,000. The
Respondent also purchased and received at its facilities in Missouri goods valued in excess of 10
$5000 directly from points outside of the State of Missouri and remitted royalty and advertising
fees on behalf of its Missouri facility valued in excess of $5000 to the Burger King Corporation,
which is the franchisor of the BURGER KING® system, and is headquartered in the State of
Florida. I find that at all material times the Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.15
At all material times, the Union has been a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES20
A. OVERVIEW OF RESPONDENT’S OPERATION AND MANAGERIAL STAFF
At some point, the Respondent assumed operation of the restaurant at 1102 E. 47th Street
in Kansas City, Missouri (47th Street). (Tr. 70.)3 During the relevant timeframe, the Respondent 25
employed approximately 40 employees at its 47th Street Burger King (“BK”). Due to the high
turnover rate among the workforce at the restaurant, each week 2 to 3 people were hired to
replace the workers who quit or came to work late.
As part of its 47th Street operation, the Respondent employed a general manager, shift 30
managers, cashiers, cooks, a porter, and various other crew members. Since April 20, Toombs
has worked for the Respondent as the general manager of the 47th Street Burger King
restaurant.4 Between about March 26, 2015 through about March 7, 2017, Sheeba Greer
(“Greer”) was a shift manager at the same location. From July 19 through about February 21,
2017, Cornelius McFadden (“McFadden”) was a manager in training at the 47th Street BK; and 35
on September 10, 2015, Quashae Roper5 (“Roper”) began as a shift manager at the 47th Street
BK. Crew members at 47th Street, among others, included Khadijah Brown (“Brown”), Shyaine
Hughes (“Hughes”), Joshlin Woodward (“Woodward”), Laneqwa Williams (“Williams”),
Rahman Sallee (“Sallee”), and Shannon Ruth (“Ruth”).
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3 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for General
Counsel’s exhibit; “CP Exh.” for the Charging Party’s exhibit; “R. Exh.” for the Respondent’s exhibit;
“GC Br.” for the General Counsel’s brief; “CP Br.” for the Charging Party’s brief; and “R. Br.” for the
Respondent’s brief.
4 Toombs normally arrived to work at 4:30am or 5am and left at 2pm or 3pm.
5 Toombs provided credible, uncontroverted testimony that during the relevant time period, Roper had
transferred to another BK store and was no longer working at the 47th Street location.
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B. Conversation on November 28 between employees and Toombs
There are few undisputed facts in this case. On November 28, a conversation was held
among a group of employees at work about a one day strike6 scheduled for the next day 5
sponsored by WOCKC. Toombs interjected himself into the conversation. After some
discussion, everyone returned to work. The same day, at approximately 3pm, Jeremy Al-Haj
(“Al-Haj”), a union organizer with Stand-Up KC, came to the restaurant to meet with several of
the employees. Brown was one of the employees who spoke to him, and she told him that she
feared being fired. Both Brown and Williams asked Al-Haj if they could be fired for going on 10
strike. He informed them that under federal law, regardless of their length of employment, they
had a right to strike without retaliation from their employer. Al-Haj returned to the 47th Street
BK on November 28, at about 6pm or 7pm to review Brown’s concerns about the possibility of
being fired if she participated in the strike the next day, and to decide whether a charge should be
filed with the Board.15
On November 29, several of the Respondent’s employees participated in the strike on
November 29, and returned to work without being subject to disciplinary action or termination.
An unconditional offer to return to work form was placed in Toombs office where he received it
when he got to work on November 30. It included, among other striking employees, the names 20
of Brown, Williams, Roper, and Hughes.7
Toombs’ and Brown’s testimonies of the November 28 discussion differ, thereafter, on
almost every relevant point. Brown testified that on November 28, when she arrived for work at
2pm8 Roper, Woodward, Williams and Hughes were having a discussion with Toombs. She 25
contends that she joined in the conversation because she heard Toombs tell the employees that he
was going to fire anyone who participated in the one day strike the union had scheduled for the
next day. In response, she told Toombs that he could not fire them for going on strike and Roper
agreed with her. Brown testified that Toombs allegedly acknowledged that Roper, Hughes, and
Woodward could strike because they were beyond their probationary period; but Brown and 30
Williams, as probationary employees, were precluded from participating in the strike. She
claimed Toombs also told her, Roper, Hughes, Williams, and Woodward that: (1) he would wait
one or two weeks before firing them so that it did not look like retaliation for their participation
in the strike; (2) he did not need a reason to fire them; and (3) he hoped “Stand-Up KC” had new
jobs lined up for them. According to Brown, the conversation ended after Toombs made these 35
statements and everyone returned to work. Brown testified that she continued the discussion
with Roper and McFadden who said Toombs was simply trying to frighten the employees into

6 I have used “strike” and “work stoppage” interchangeably throughout this decision.
7 Toombs provided undisputed testimony that none of the employees who struck on November 29,
except for Woodward and Robert Hill, are currently employed at the 47th Street BK. There is no
evidence, however, that the employees were terminated or voluntarily left because of their strike activity.
8 Brown was employed at the Respondent’s 47th Street location from mid-November 2016 to early
January 2017 and was still a trainee on November 28. Brown was regularly scheduled to work daily from
2p.m. to 1p.m., with the exception of Sunday when she worked from 11am to 6pm. Monday was her
normal “off” day.
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not attending the strike.9 Moreover, Brown insists that Toombs never assured them that despite
his comments that he would not discipline or discharge them for participating in the strike.
Toombs vigorously denied Brown’s version of the facts. Toombs testified that on
November 28, he heard several employees discussing the strike scheduled for the next day. 5
Toombs joined the conversation to ask them if they were going to strike the following day. He
testified that a few of the employees responded yes because they would receive $50 for
participating in the strike. Toombs stated that when he asked them why they were striking, again
a few responded that it was because they would be paid $50. At this point, Toombs claimed to
have asked the employees to notify him if they were going to participate in the November 29 10
strike so that he could have extra employees cover the strikers’ shifts. He admits that he could
not recall which employees, except possibly Shannon Ruth (“Ruth”), participated in the
conversation on November 28. (Tr. 35-37.) However, Toombs insisted that Brown was not
among the group of employees discussing the strike, nor was she at work on November 28. He
appeared to base his recollection of who participated in the November 28 conversation on the 15
work schedule at R. Exh. 1.
I credit Brown’s testimony that she was at the 47th Street BK on November 28 prior to
3pm because she had a corroborating witness, Al-Haj. Although he was not able to provide firs-
hand corroborating testimony about the substance of the November 28 conversation and which 20
employees were present, Al-Haj was able to give undisputed testimony that he met Brown at the
restaurant on November 28 to review her complaint about Toombs alleged threatening
statements. His testimony corroborated only that she was at the restaurant, but not that she was
working or scheduled to work that day.
25
Toombs could not recall who, specifically, participated in the November 28 conversation,
thus diminishing the weight of his testimony on this point. Nevertheless, the Respondent
introduced a copy of the weekly schedule for the date at issue which reveals that Brown, Roper,
Hughes, and Williams were not on the schedule to work. (R. Exh. 1.) Toombs testified that
Roper had been transferred to a different restaurant prior to November 28 so she would not have 30
been employed at the 47th Street location on November 28. Roper, nevertheless, continued to be
employed by the Respondent on November 28. According to Toombs, Williams stopped coming
to work but admits she was still employed with the Respondent from November 24 – 30. The
General and Counsel and Charging Party argue that R. Exh. 1 should not be given any weight
because it is inaccurate. See GC Br. 8-14; CP Br. 7-10. I find that R. Exh. 1 has minimal 35
evidentiary value because: (1) the complaint alleges that the Respondent, through Toombs, made
threatening comments to several of its employees. Toombs admits he heard a group of
employees discussing the November 29 strike and asked them questions about it. The relevant
inquiry is whether he made the alleged threatening statements. Brown accused Toombs of

9 On direct examination, Brown testified about the substance of her conversation with Roper and
McFadden. The Respondent objected to this testimony on the basis that it was hearsay. I allowed the
testimony with the caveat that I would give it the weight it deserved. Based on my review of the
evidence, the Board rules, and the federal rules of evidence, I find that Brown’s testimony on this point is
given no weight. The best evidence would have been Roper’s and, or McFadden’s testimonies; and the
General Counsel provided no reason for failing to call them to testify about the substance of the
conversation. Consequently, Brown’s testimony on this point is nothing more than hearsay with no
obvious exception to the hearsay rule. Therefore, it is given no weight.
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making the statements and I was able to credit her testimony that she was at the restaurant during
the period in question, independent of R. Exh. 1. Moreover, the merits of the case will be based
entirely on credibility findings. Consequently, I do not find it necessary to rule on the credibility
of R. Exh. 1.
5
I find that Brown and Toombs appeared equally credible on the issue of whether Toombs
made the threatening statements. Neither was superior to the other in terms of their demeanor.
Moreover, I find little to nothing in the record to indicate the Brown’s testimony is likely to be
more credible than Toombs’ testimony or vice versa. Since the General Counsel has the burden
of proving credibility, I credit Toombs version of the conversation that occurred with him and a 10
group of employees on November 28; and his denial that he made the alleged threatening
statements. See Central National Gottesman, 303 NLRB 143, 145 (1991) (finding that the
General Counsel did not meet its burden of proof because the testimony that the allegation
occurred was equally credible as the testimony that denied the allegation); Blue Flash Express,
109 NLRB 591, 591-592 (1954) (same), questioned on other grounds, Allegheny Ludlum Corp. 15
v. NLRB, 104 F.3d 1354 (D.C. Cir. 1997).
III. Discussion and Analysis
The General Counsel argues that the merits of the case rest entirely on the credibility of 20
two main witnesses: Brown and Toombs. According to the General Counsel, Brown is more
credible because: (1) Brown’s testimony was corroborated by witnesses who were more credible
than the Respondent’s witnesses; (2) the totality of the circumstance makes it more likely than
not that Brown was at work and participated in the November 28 conversation, thus discrediting
Toombs’ testimony on this point; and (3) the Respondent’s exhibit 1 is not accurate, and thus not 25
credible.
The Respondent counters that the General Counsel has failed to meet his burden of proof
because: (1) the General Counsel’s case rests entirely on the uncorroborated testimony of one
witness, Brown; and (2) Brown’s testimony was internally inconsistent and contradicted by other 30
credible evidence.
The General Counsel argues that, taken in context, Toombs’ alleged statements to
employees would “reasonably tend to restrain, coerce or interfere with rights guaranteed by the
Act.” Bloomfield Health Care Center, 352 NLRB 252 (2008), quoting Rossmore House, 269 35
NLRB 1176, 1178 fn. 20 (1984), enfd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985). Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer
to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section
7 of the Act. The rights guaranteed in Section 7 include the right “to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to 40
engage in other concerted activities for the purpose of collective bargaining or other mutual aid
or protection.” See Brighton Retail, Inc., 354 NLRB 441, 441 (2009). The Board has
established an objective test for determining if “the employer engaged in conduct which would
reasonably have a tendency to interfere with the free exercise of employee rights under the Act.”
Santa Barbara News-Press, 357 NLRB No. 51, slip op. at 25 (2011). This objective standard 45
does not depend on whether the “employee in question was actually intimidated.” Multi-Ad
Services, 331 NLRB 1226, 1228 (2000), enfd. 255 F.3d 363 (7th Cir. 2001). The mere threat of
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6
an unspecified reprisal is sufficient to support a finding that the employer has violated Section 8
(a)(1) of the Act. Metro One Loss Prevention Services Group, 356 NLRB No. 20, slip op. at 1
(2010).
Based on the evidence, I find that the General Counsel has failed to establish that the 5
Respondent, through Toombs, made the alleged threatening statements for the reasons discussed
below.
As previously noted in the facts section of the decision, the General Counsel failed to
establish that Brown was a more credible witness than Toombs. Moreover, the General Counsel 10
failed to produce corroborating witnesses to overcome the deficits with Brown’s testimony and
overall demeanor. A party’s failure to explain why it did not call the favorable witness may
support drawing an adverse inference. See Martin Luther King, Sr. Nursing Center, 231 NLRB
15, 15 fn. 1 (1977). Ultimately, however, the judge has discretion to decide whether an adverse
inference is warranted when a party fails to call witnesses reasonably assumed to be favorably 15
disposed toward the party. The Board and the Federal courts have also consistently held that it is
not an abuse of discretion if the judge decides not to take an adverse inference against a party for
not calling a witness even if that witness is the party’s former supervisor. Advocate South
Suburban Hospital v. NLRB, 486 F.3d 1038, 1048 and fn. 8 (7th Cir. 2006) (adverse inference
warranted only when the missing witness is peculiarly in the power of the other party to 20
produce); Christie Electric Corp., 284 NLRB 740, 748 fn. 137 (1987) (declining to draw an
adverse inference for the failure to call a former supervisor). In the case at issue, Roper,
Woodward, Williams, and Hughes could have been assumed to be favorably disposed towards
the General Counsel’s case. If called by the General Counsel, one or more of the 4 witnesses
might have supported in whole or in part Brown’s version of the November 28 conversation with 25
Toombs and who was present to hear him make the alleged statements.
Even if a judge decides not to draw an adverse inference, the failure of the General Counsel
to call identified corroborating witnesses may be a consideration in the judge’s determination of
whether the General Counsel’s case has been significantly weakened, and thus a factor which 30
leads to a finding that the General Counsel has failed to meet the burden of proof. See Stabilus,
Inc., 355 NLRB 836, 841 fn. 19 (2010) (“The lack of corroboration from Lockridge weakens the
General Counsel’s case.”). The Board has consistently held that the judge may consider the
General Counsel’s failure to call a potentially corroborating witness in deciding whether a
violation of the Act has occurred. See C & S Distrib., 321 NLRB 404, 404 fn. 2 (1996) (“a judge 35
may properly consider the failure to call an identified, potentially corroborating witness … as a
factor in determining whether the General Counsel has established by a preponderance of the
evidence that a violation has occurred.”); citing Queen of the Valley Hospital, 316 NLRB 721,
721 fn. 1 (1995) (same).
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The General Counsel has the ultimate burden of proof. In the matter at hand, it is the
General Counsel’s responsibility to prove by a preponderance of the evidence that Toombs made
the threatening statements attributed to him by Brown. Since I previously found that based on
their comparative demeanor, neither Toombs nor Brown was superior; it was incumbent upon the
General Counsel to produce alternate persuasive evidence. For example, the General Counsel 45
could have produced any of the employees that Brown testified were present when Toombs
allegedly made the threatening statements or any other corroborating evidence. While the
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General Counsel argues that Al-Haj corroborated Brown’s version of events, the evidence
indicates otherwise. Al-Haj simply testified to what Brown told him. He was not actually
present when the conversation involving several employees and Toombs occurred so he has no
first-hand knowledge of what was said. This is a “he-said-she-said” situation with equally
credible witnesses and no additional persuasive evidence to break the tie. Consequently, Board 5
law holds that I must find the General Counsel did not carry its burden of proof. See Iron
Mountain Forge Corp., 278 NLRB 255, 263 (1986).
Accordingly, I find that the General Counsel failed to meet its burden of proof regarding
this allegation and recommend that paragraphs 5(a) and (b) of the complaint be dismissed. 10
Dated: Washington, D.C. September 29, 2017
15

Christine E. Dibble (CED)
Administrative Law Judge
b-•
JD-82-17
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to hire or otherwise discriminate against any employee for
engaging in protected concerted activity or for supporting the Workers Organizing
Committee—Kansas City or any other union.
WE WILL NOT discipline, threaten or otherwise discriminate against any employee for
engaging in union or other concerted activities protected by Section 7 of the National
Labor Relations Act (the Act).
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our
employees in the rights guaranteed to them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order, offer Terrence Wise
the position at issue or, if that position no longer exists, to asubstantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously
enjoyed.
WE WILL make Terrence Wise whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, in the manner set forth in the
remedy section of the decision.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful refusal to hire of Terrence Wise, and within 3 days thereafter
notify Terrence Wise in writing that this has been completed and that he will not be
retaliated against in any way.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate quarters.
JD-82-17
WE WILL compensate Terrence Wise for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of the Board’s Order, rescind and remove from
our files any reference to the unlawful disciplines issued to Susana De la Cruz Camilo,
Kashanna Coney, MyReisha Frazier, West Humbert, Osmara Ortiz and Myresha Vaughn,
and within 3 days thereafter notify them in writing that this has been completed and that
the disciplines will not be used against the employees in any way.
EYM KING OF MISSOURI, LLC, d/b/a
BURGER KING
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National
Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation
and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights
under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the
Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1222 Spruce Street, Suite 8.302
St. Louis, Missouri 63103–2829
Telephone: (314) 539–7770
Fax: (314) 539–7794
Hours of Operation: 8:00 a.m. to 4:30 p.m. CST
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/14-CA-188832 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (314) 449–7493.