EYM King of Missouri, L.L.C. d/b/a Burger King

National Labor Relations Board - Board Decisions

Jan 24, 2017

365 NLRB No. 16 (N.L.R.B. 2017)

365 NLRB No. 16
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.
EYM King of Missouri, LLC d/b/a Burger King and
Workers Organizing Committee—Kansas City.
Case 14–CA–150321
January 24, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On February 9, 2016, Administrative Law Judge
Christine E. Dibble issued the attached decision.1 The
Respondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party each filed an
answering brief, and the Respondent filed reply briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions2 and
briefs and has decided to affirm the judge’s rulings,3
findings,4 and conclusions and to adopt the recommend-
ed Order as modified and set forth in full below.5

1 On June 23, 2016, the Board issued a decision that addressed Cas-
es 14–CA–148915 and 14–CA–150794, which are included in the
judge’s decision. EYM King of Missouri, LLC, 364 NLRB No. 33.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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. In affirming the judge’s finding that
Store Manager LaReda Hayes received the strike notice for employees
Kashanna Coney, MyReisha Frazier, and Myesha Vaughn, we observe
that Hayes admitted receiving it.
The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
We reject the Charging Party’s contention that the Board should dis-
regard the Respondent’s exceptions because they fail to comply with
Secs. 102.46(b)(2) and (c)(3) of the Board’s Rules and Regulations.
The Respondent’s exceptions substantially comply with the Board’s
Rules and Regulations and are sufficient to warrant Board considera-
tion.
3 The Respondent excepts to the judge’s exclusion of the following
proffered evidence: (1) the Respondent’s proffered exhibit 24, purport-
edly showing the Union’s use of identical strike notices at various
restaurants; (2) additional evidence of uniform enforcement of its ab-
senteeism policy; and (3) testimony and an offer of proof concerning
whether the Workers Organizing Committee would organize future
strikes. Assuming arguendo the judge erred in these rulings, we find
that the additional evidence would not affect our disposition of this
case.
4 We agree with the judge that the employees’ 1-day strike on April
15, 2015, did not constitute unprotected intermittent strike activity, and
we therefore agree with the judge’s ultimate finding that the Respond-
ent violated Sec. 8(a)(1) of the Act by disciplining six employees for
participating in that strike. We emphasize that employees had engaged
ORDER
The National Labor Relations Board orders that the
Respondent, EYM King of Missouri, LLC d/b/a Burger
King, Kansas City, Missouri, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Disciplining employees for engaging in a strike or
supporting Workers Organizing Committee—Kansas
City or any other union.
(b) In any like or related manner interfering with, re-
straining, or coercing 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 this Order, remove
from its files any reference to the unlawful discipline
issued to Susana De la Cruz Camilo, Kashanna Coney,
MyReisha Frazier, West Humbert, Osmara Ortiz, and
Myesha Vaughn, and within 3 days thereafter, notify
them in writing that this has been done and that the un-
lawful discipline will not be used against them in any
way.
(b) Within 14 days after service by the Region, post at
its 1102 East 47th Street, Kansas City, Missouri, facility
copies of the attached notice marked “Appendix.”6 Cop-
ies of the notice, on forms provided by the Regional Di-

in only that one strike against the Respondent at the time it issued the
discipline. Because the single 1-day strike was not an intermittent
strike, we find it unnecessary to rely on the judge’s analysis of when
intermittent strike activity is protected. In addition, we observe that all
six employees engaged in protected strike activity on April 15, 2016,
consistent with their strike notice, which stated, “We offer to return to
work unconditionally after April 15th for our next regularly scheduled
shift.” Finally, in finding the discipline unlawful, we do not rely on
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). See CGLM, Inc., 350 NLRB
974, 974 fn. 2 (2007) (rejecting application of Wright Line in similar
circumstances, where “the very conduct for which employees are disci-
plined is itself protected concerted activity,” quoting Burnup & Sims,
256 NLRB 965, 976 (1981)), enfd. 280 Fed.Appx. 366 (5th Cir. 2008).
Accord: Atlantic Scaffolding Co., 356 NLRB 835, 838 (2011).
The Respondent requests that the Board take administrative notice of
strikes organized by the Workers Organizing Committee on November
29, 2012, and November 15, 2015. We find it unnecessary to do so
because it would not affect our disposition of this case. The 2012 strike
predated the Respondent’s ownership of Burger King restaurants, in-
cluding the one involved in this case. With respect to the November
2015 strike, the Respondent’s unlawful discipline of employees in April
2015 cannot be legitimated by events occurring 6 months later.
5 We shall modify the judge’s recommended Order to reflect the
Board’s findings, and we shall substitute a new notice to conform to the
Order as modified.
6 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
rector for Region 14, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 16, 2015.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 14 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.
Dated, Washington, D.C. January 24, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce Member
______________________________________
Lauren McFerran, 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 vio-
lated 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 discipline you for engaging in a strike or
supporting Workers Organizing Committee—Kansas
City or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
described above.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful discipline issued to Susana De la Cruz Camilo,
Kashanna Coney, MyReisha Frazier, West Humbert,
Osmara Ortiz, and Myesha Vaughn, and WE WILL, within
3 days thereafter, notify them in writing that this has
been done and that the unlawful discipline will not be
used against them in any way.
EYM KING OF MISSOURI, LLC, D/B/A BURGER
KING
The Board’s decision can be found at
www.nlrb.gov/case/14–CA–150321 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Lyn R. Buckley, Esq., for the General Counsel.
John L. Ross, Esq. and Jason T. Weber, Esq., for the Respond-
ent.
Fred Wickham, Esq., and Brian Noland, 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 August 11–13, 2015.
The Workers’ Organizing Committee—Kansas City
(WOCKC/Union) filed the charge in case number 14–CA–
148915 on March 26, 2015.1 The first amended charge in case

1 All dates are in 2015 unless otherwise indicated.
EYM KING OF MISSOURI, LLC D/B/A BURGER KING 3
number 14–CA–148915 was filed by WOCKC on April 22. On
April 17, WOCKC filed a charge in case number 14–CA–
150321. An amended charge in case number 14–CA–150321
was filed on June 16. WOCKC filed the charge in case number
14–CA–150794 on April 24, and filed an amended charge on
June 16. The General Counsel issued the complaint on May 27
and a consolidated complaint on June 24. EYM King of Mis-
souri, LLC d/b/a Burger King (Respondent) filed a timely an-
swer and an amended answer on June 9 and July 6, respective-
ly.
The consolidated complaint alleges that the Respondent vio-
lated Section 8(a)(1) of the National Labor Relations Act
(NLRA/the Act) when on or about April 17, the Respondent,
through Kelly Sharts, told employees that Respondent’s “higher
management” wanted to discipline employees for engaging in
union and protected concerted activities, including work stop-
pages.2 The consolidated complaint also alleges that the Re-
spondent violated Section 8(a)(1) and (3) of the Act when on or
about March 26, the Respondent refused to consider for hire or
refused to hire Terrance Wise;3 and on or about April 16, the
Respondent issued written discipline to its employees Susana
De la Cruz Camilo, Kashanna Coney, MyReisha Frazier, West
Humbert, Osmara Ortiz, and Myesha Vaughn.4 In her brief,
counsel for the General Counsel moved to amend the consoli-
dated complaint to delete paragraph 5(a) “eliminating the alle-
gation that [LaReda] Hayes made statements on April 16 and
23, 2015 which violate the Act.” (GC Br. 3.)5 The motion to
amend the consolidated complaint is granted. Consequently, I
will not consider or rule on the allegation set forth in paragraph
5(a) of the consolidated complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Union, and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability company, engaged in the
retail operation of Burger King (BK) franchise restaurants sell-
ing food and beverages to the general public, including at its
restaurants located at 1102 East 47th Street, Kansas City, Mis-
souri and 3441 Main Street, Kansas City, Missouri. During the
12-month period ending July 31, 2015, 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 $5000 directly from points outside of the State of

2 This allegation is alleged in par. 5(b) of the consolidated com-
plaint.
3 This allegation is alleged in par. 6(b) of the amended consolidated
complaint.
4 This allegation is alleged in par. 7(b) of the amended consolidated
complaint.
5 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “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; “R. Br.” for the Respondent’s brief; and “R. Reply” for the Re-
spondent’s reply brief.
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.
Although the Respondent does not acknowledge that it meets
the specific monetary amounts set forth in the consolidated
complaint, it does not contest jurisdiction. See also, General
Counsel Exhibit 33 (Respondent voluntarily stipulates that it
meets the specific monetary limits to establish jurisdiction).
The Respondent admits, and I find, that at all material times it
has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
At all material times, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview of Respondent’s Operation and Managerial Staff
On March 26, the Respondent assumed ownership of several
BK restaurants from Strategic Restaurants (Strategic). Included
in the purchase were BK restaurants at 1102 E. 47th Street in
Kansas City, Missouri (47th Street) and 3441 Main Street in
Kansas City, Missouri (Main Street). In addition to Kansas
City, the Respondent also acquired ownership of BK restau-
rants in several other cities throughout the State of Missouri. As
part of its operations, the Respondent employed, among other
employees, district managers, general managers, shift manag-
ers, cashiers, cooks and crew. Since July 1, Aaron Knox (Knox)
has worked for the Respondent as a district manager and over-
sees eight BK restaurants in Missouri, including the 47th Street
location. Prior to the changeover in ownership, Knox worked
for Strategic for 5 years. Tammy Young (Young) works for the
Respondent as a district manager overseeing nine restaurants
and assisting with managing the Main Street location. She pre-
viously worked for Strategic for 5 years as a manager. The
Respondent also hired Kelly Ragar (Ragar) as a district manag-
er to supervise six stores in Springfield, Missouri.
The Respondent employed approximately 45 employees at
its 47th Street BK. Since March 26, LaReda Hayes (Hayes)6
has been the general manager of the store. Previously, she
worked for Strategic at the 47th Street location in the same
capacity. Under Strategic’s ownership, she reported directly to
District Manager Thomas Reyes (Reyes). During Hayes’ tenure
with both employers, she had an assistant manager and several
shift managers working for her, including Assistant Manager
Ann Williams (Williams) and shift managers Mary Briscoe
(Briscoe), Tena Jacobs (Jacobs), and Yon Nonnina (Nia) Cline
(Cline). There was testimony that Sharrell (last name unknown)
was also a manager at the 47th Street BK.7
Minimal evidence was introduced about the staff and man-
agement team at the Main Street BK. It is, however, undisputed
that Kelly Sharts (Sharts) was the store manager until she re-
signed on June 15.

6 The record reflects that Hayes’ employees call her “Reda” and
several witnesses refer to her by that name in their hearing testimony.
7 In their briefs, the parties have spelled the name as “Sharroll”,
“Sherroll” and “Sharrell.” In this decision I will refer to the manager as
“Sharrell.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
B. Union organizer Terrence Wise’s WOCKC activities
Terrence Wise (Wise) worked for various BK restaurants for
11 years and at its 47th Street location from February 1, 2012,
to March 25, 2015.8 He was a general crew member which
meant he could perform various nonmanagerial tasks in the
restaurant. In early 2015, Wise worked from 9 a.m. to 5 p.m.,
but towards the end of his employment with Strategic he
worked the 10 p.m. to 6 a.m. shift.9 During his tenure at the
47th Street BK, Hayes was his general manager. At various
time Cline, Jacobs, and Sharrell were his shift managers. Wil-
liams was his assistant manager.
WOCKC is a local outpost of the national Workers Organiz-
ing Committee (WOC).10 WOCKC, with assistance from the
WOC, conducts local campaigns for higher wages, better work-
ing conditions, and unionization. In spring 2013, Wise became
active in WOCKC and eventually assumed a leadership role in
the organization. In his WOCKC leadership capacity, Wise has
spoken at and helped to organize strikes, rallies, protests, health
and safety campaigns, and petition marches. Wise has also been
interviewed by television and radio news outlets and featured in
numerous local and national publications. In addition to his
activities on behalf of WOCKC, Wise filed charges with NLRB
against Strategic, and took the lead among his coworkers at the
47th street restaurant in encouraging them to participate in peti-
tioning management for improved terms and conditions of their
employment. (GC Exhs. 9, 10, 12–14, 18; Tr. 47–48.)
Wise began participating in WOCKC sanctioned strikes in
spring 2013. He has participated in strikes on July 29–30, 2013;
August 29, 2013; December 15, 2013; May 15, 2014; Septem-
ber 4, 2014; December 4, 2014; and April 15, 2015. Only one
of the strikes has lasted more than a day. WOC coordinated the
nationwide 1-day strikes. Wise explained that workers at a
restaurant would encourage their coworkers to participate in
strikes and other organizing activities. Prior to going out on
strike, a third-party representative and one or more workers
would give the general manager a strike notice listing the
names of striking workers. Strike notices were also posted to
the WOC Facebook page which listed upcoming strike dates.
After the strikes, a third-party representative would return to
the workplace with the workers and present the manager with a
return to work notice that noted their unconditional offer to
return to work.

8 Testimony regarding the time frame for Wise’s employment at the
47th Street location was confusing. Initially his testimony indicated that
he began work at the 47th Street BK in 2009. Wise later testified,
however, that he worked at the 47th Street location under Strategic’s
ownership from December 2012 until March 2015. Hayes also testified
that she worked with him for 3 years at the 47th Street BK. (Tr. 29–30,
77–78, 382.) I credit Hayes’ more specific testimony on this point; and
find that Wise worked with Hayes at the 47th Street BK from Decem-
ber 2012, to March 26, 2015.
9 I cannot find a reference in the record noting the days of the week
Wise worked prior to March 26. However, Hayes testified that when
Wise applied to work for the Respondent, he noted his unavailability to
work on Sundays and could only work from 9 a.m. to 5 p.m. on Satur-
days. She appeared to imply that up until that point Wise was available
to work any day of the week.
10 On the national level, WOC is also referred to as “Fight for $15.”
Hayes has been aware of Wise’s involvement in WOCKC
since its inception, and first became aware of his participation
in strike activity about July 2013 when she discovered a flyer in
his backpack advertising a rally for $15 an hour. Wise ex-
plained to her the purpose of the rally and his involvement. In
mid-March 2015, he also engaged in a health and safety action
with coworkers Suzie de la Cruz Camillo (Camillo), Kashanna
Coney (Coney), and West Humbert (Humbert). They signed
and presented a petition to Hayes that requested the repair of
equipment. In addition, Hayes was aware of Wise’s and em-
ployee Osmara Ortiz’s (Ortiz) work with WOCKC because
advertisements with their pictures appeared on the sides of city
buses that passed in front of the 47th Street BK and Hayes
commented on it. Ortiz has also been featured in the news me-
dia, given interviews, and spoken at WOCKC events. Other
employees at the 47th Street BK who have been interviewed by
the local news media concerning union organizing activities are
Camillo, Humbert, Myesha Vaughn (Vaughn), and MyReisha
Frazier (Frazier).
C. Disciplinary actions taken against Wise
During his tenure at the 47th Street BK, Wise was subject to
disciplinary action on several occasions. Under Strategic own-
ership, the restaurant had a “kitchen minder” that told the cooks
which food to cook, the amount of food to cook, and when to
cook it. If too much food was prepared, the procedure was for
Hayes to count and record the excess (“wasted”) food after the
breakfast, lunch, and dinner shifts. After the count was taken,
she sometimes allowed employees to give the wasted food
away or keep it for themselves.11 During the course of his em-
ployment under her management, Hayes verbally counseled
Wise on two occasions for preparing too much food. There is
no evidence noting the exact dates of these counseling sessions.
Williams and Hayes also issued Wise written discipline on
several occasions for being tardy and absent without notifying
management,12 and switching shifts without prior approval. (Tr.
339.) On April 21, 2014, Williams issued Wise a written coun-
seling for arriving at work 55 minutes late without notifying
management. (R. Exh. 4.) She also issued him a written coun-
seling on May 5, 2014 for coming to work 15 minutes late. (R.
Exh. 5.) Hayes testified that she counseled Wise on two occa-
sions for sending employees on workbreak without her permis-

11 Hayes denied allowing employees to give the “wasted” food to
customers or homeless people. She testified that Wise gave “wasted”
food to homeless people without her permission. However, Wise insist-
ed that Hayes allowed him to give away food, and that on occasion she
also gave food to the homeless. Hayes’ testimony was vague on key
points. She could not recall when it occurred, what employees were
involved, or the number of times it occurred. Her vague testimony
combined with the witnesses’ demeanor, and the lack of written docu-
mentation of the discipline leads me to credit Wise’s testimony on this
point.
12 Strategic maintained a policy that if an employee was going to be
late or absent, the employee had to notify management prior to the start
of the employee’s shift. The Respondent required an employee to notify
management at least 3 hours prior to the start of the employee’s shift if
the employee was going to be late or absent. Failure to notify manage-
ment within the appropriate timeframe is referred to as “no call/no
show.”
EYM KING OF MISSOURI, LLC D/B/A BURGER KING 5
sion. (Tr. 384–385.) Wise denied that he was ever disciplined
for this action. I credit Wise’s testimony on this point.13
There was also an incident that involved Wise being accused
of stealing hamburgers from the restaurant. It is common prac-
tice for employees, after their shift, to ask managers if they can
have free food from the restaurant. Normally, the managers
allow it. During his Sunday shifts, Wise often did not get to
take a break because the shift was usually short staffed. Con-
sequently, whenever he worked a Sunday shift, Wise would ask
a shift manager if he could take a burger home. The managers
would allow him and other workers who did not receive a break
to take home one or two hamburgers after their shift. In Febru-
ary 2014, he left the store after his shift with a couple of ham-
burgers in his pocket. Shift manager, Cline, was coming into
the store to begin her shift as Wise was leaving. She asked him
what was in his coat pockets because it looked to her that he
was concealing items. She was not satisfied with his response
so she opened his pockets and discovered the hamburgers.
Cline took the hamburgers and told him to have a good day.
Although Cline reported the incident to Hayes, Wise was never
disciplined for it.
Wise acknowledged that Cline took hamburgers from his
coat pockets but denied he was trying to steal them. He claims
that the prior shift manager, Sharrell, gave him permission to
take the hamburgers after his shift. He contends that Sharrell
had left by the time Cline came on duty so Cline was unaware
that he had received prior authorization to take the hamburgers.
Cline and Hayes testified that Wise was not disciplined for the
incident because local management had received instructions
from Strategic’s “upper management” that all disciplinary ac-
tions against Wise and employees on the “strike committee”
had to be submitted to the human resources manager for prior
approval. Hayes claimed that she stopped submitting requests
for approval to human resources to discipline Wise because
they ignored her requests. Consequently, Hayes contends she
did not issue Wise discipline for the hamburger incident be-
cause she felt it would have been futile.
I find that each party’s version of the hamburger incident is
problematic. Despite being asked specific questions on cross-
examination about the allegation of hamburger theft, Wise testi-
fied “I don’t recall this event.” He also denied that Cline
searched him and took hamburgers from his coat pocket. (Tr.
118–119.) Despite his initial denial that the incident occurred,
on rebuttal he curiously could recall every detail of the incident,
including a description of the coat he was wearing, the conver-
sation he had with Cline, when the incident occurred, and the
number of hamburgers he had in his pocket.14 Consequently, I

13 Wise denied sending or being counseled for sending employees on
break. He insisted that Hayes would allow the employees on a shift to
decide the order in which they would take their breaks. Wise also con-
tended that Hayes would ask him to arrange breaks for employees in
the kitchen and he would send them on break according to the order
that they came to work. There is no documentation of disciplinary
action being taken against him for sending employees on break without
permission from management.
14 Wise testified that he had two hamburgers in his coat pockets, but
Cline testified to eight hamburgers. I find that the number of hamburg-
ers Wise had in his coat pockets is irrelevant to the issues before me.
do not find plausible his initial denial and/or testimony that he
could not recall the incident or later rendition of the event.
Hayes initially testified that although she felt the hamburger
incident justified Wise’s termination, she did not recommend
his termination to Strategic’s human resources because she felt
it would not be acted on. She later testified, however, that she
did recommend him for termination for the hamburger incident
but Strategic did not act on the recommendation prior to the
changeover in ownership. Hayes was also woefully unsure of
whether the hamburger incident occurred in 2014 or 2015.
Hayes also admitted that she did not counsel or otherwise dis-
cipline Wise for the incident. Consequently, I find that Hayes’
testimony about Wise’ attempted theft of hamburgers, particu-
larly as it relates to the timing of the hamburger incident, to be
so confusing that it must be discounted.15
Based on the totality of the circumstances and the evidence, I
find that there was not a directive from Strategic or the Re-
spondent curtailing local management’s ability to discipline
Wise or any other employee. I also find that the hamburger
incident occurred in February 2014. According to Cline, there
were about 40 employees on the “no write-up list.” (Tr. 322–
323.) However, I cannot credit Hayes’ or Cline’s testimony
that Strategic precluded them from issuing discipline to Wise or
employees on the “strike committee” without prior approval
from Strategic’s human resources. Neither Hayes nor Cline
provided a copy of the directive restricting managers’ authority
to discipline certain employees without prior approval from
Strategic’s human resources. Even assuming that such a di-
rective existed, Hayes admitted that it was not in effect as of
May 2014. Also, it is undisputed that the Respondent allowed
local management to issue discipline to employees without
restrictions. Therefore, if the directive existed, it would have
been for the time period of June 2014 to March 26, 2015.
Hayes’ testimony revealed that she was clearly unsure on the
timing of the hamburger incident. On direct and cross-
examinations, Hayes repeatedly vacillated between 2014 and
2015 as being the year the incident occurred. She also repeated
several times that she was unsure when the incident occurred.
Consequently, I cannot rely on her testimony on this point ei-
ther.
D. April 15, 2015 WOCKC Strike
WOC has been responsible for coordinating nationwide
strikes in the campaign to set the minimum wage at $15 an hour

15 By the time of the hearing, Sharrell was not employed by the Re-
spondent. (Tr. 72.) Both parties, however, cite the other side’s failure to
call Sharrell to testify as a reason for finding that party has or has not
established discriminatory pretext. Either party could have called Shar-
rell as a witness to corroborate their version of the hamburger incident
but chose not to exercise that right. Moreover, at the time of the inci-
dent, Wise and/or Hayes could have spoken to Sharrell to clarify
whether she had given Wise permission to take the hamburgers. There
was no testimony or evidence that this occurred. Consequently, I reject
the Respondent’s and General Counsel’s arguments on this point. Even
if Sharrell had testified, I still would not have found credible Hayes’
testimony that the hamburger incident was a reason for her decision not
to hire Wise. My reasons for this finding are discussed above and later
in the decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
for fast food workers. On a strike day, community organiza-
tions and local unions provide food and help to register strikers
for the day’s action. Prior to the strike, WOC uses individuals
from the local community to deliver strike notices to employ-
ers. The strike notices contain the name and signature of the
striking employees, date of the strike, and an offer to uncondi-
tionally return to work after the strike. The normal procedure
for delivering the strike notice is for the WOC representative or
volunteers to deliver it to the employers’ managers, take a pho-
tograph of the strike notice inside the employers’ buildings, and
text the photograph with the time stamp to the WOC coordinat-
ing official.
On April 15, WOCKC engaged in a 1-day strike as part of a
nationwide campaign organized by WOC. On April 15, Jona-
than Thatch (Thatch), a volunteer for WOC, delivered a strike
notice to Hayes at 2:30 p.m. at the 47th Street BK16 listing sev-
eral of the 47th Street BK employees as participants: Vaughn,
Frazier, Coney.17 (R. Exh. 25; Tr. 267–268.) A strike noticed
was also prepared that listed Camilo, Humbert and Ortiz as
strike participants. However, there is no conclusive evidence
that this notice was delivered to Hayes. The strike and activi-
ties associated with the strike lasted from about 4 a.m. to 6 p.m.
Camillo, Humbert, Ortiz, Coney, and Vaughn were scheduled
to work at the 47th Street BK on the day of the strike, but did
not call a store manager at least 3 hours prior to the start of
their shift to notify them that they would not be at work. Con-
sequently, the 47th Street BK was short staffed on April 15. On
April 16, management at the 47th Street BK was given a return
to work notice listing the names of the strikers who agreed to
return to work unconditionally. On April 16, Hayes prepared
written warnings for Humbert, Camilo, Coney, Frazier, and
Ortiz for failing to appear for their scheduled shifts on April 15.
At the start of their next shift, she issued each employee a writ-
ten warning. Distribution of the warnings occurred from April
16 to April 22. (GC Exh. 41.)
Employees from the Respondent’s Main Street location also
participated in the strike on April 15: Oliverio Flores (Flores),
Danielle James (James), Sharon Parker (Parker), and Sharron
Jones (Jones). On April 15, a strike notice with the employees’
names and signatures was delivered to management at the res-
taurant. On April 16, Flores, James, Parker, Jones, Daniel
Tucker (Tucker) and a community minister presented store
management with a return to work notice stating the employees
were returning to work without any conditions.

16 Hayes denied receiving the notice but I credit Thatch’s testimony
on this point. Thatch provided convincing testimony that on April 15,
he provided a strike notice to Hayes. On the witness stand he looked at
and described the picture that he took on his mobile phone of the strike
notice in Hayes’ hand. The picture was date stamped April 15. (Tr.
267–268.) Thatch’s testimony regarding the description of the picture is
undisputed. Although Hayes denied making the notation at the top of
the strike notice indicating it was received at 2:30 p.m., I do not find
her credible on this point. Her testimony was in clear contradiction to
Thatch’s credible testimony and the objective evidence.
17 Andricka Brown (Brown) and Destiny Smith (Smith), employees
at the Respondent’s 47th Street BK, also participated in the strike but
were not disciplined because they were not scheduled to work on April
15, 2015. (R. Exh. 25.)
E. Jones alleged conversation with Sharts
Since 2008, Jones had been employed as a cashier at the
Main Street BK.18 Under Strategic’s ownership, she participat-
ed in about five or more strikes. Jones first testified that on each
of those occasions, she signed a strike notice that was delivered
to Sharts. She also attested that the day after the strikes, she and
other striking employees would return to work and present
Sharts with return to work notices. However, later in her testi-
mony Jones denied that the strike notices or return to work
notices were given to Sharts. She claimed they were presented
to “the other gentleman manager.” (Tr. 226.) Her testimony on
this point is nonsensical, and thus not credited. Jones gives no
reason for changing her testimony minutes after she unequivo-
cally testified that the strike notices and return to work notices
under Stategic were given to Sharts. Consequently, I find that
this type of shifting testimony makes me doubt her veracity as a
witness. Therefore for this and other reasons, I do not find
credible Jones’ testimony of her alleged conversation with
Sharts regarding a mandate from the Respondent to issue writ-
ten discipline to strikers.
Jones testified that on April 17, 2015, Sharts told her that she
had been instructed by upper management to issue the striking
employees written discipline. According to Jones, Sharts said
that the Respondent’s general managers got an email instruct-
ing them to “write all employees that went on strike up for no
[calls] and no shows.” (Tr. 222.) Jones further testified that
Sharts said not to worry about being “written-up” because
Sharts had removed the affected employees from the work
schedule so they would not be subject to discipline. Sharts
remained the store manager at the Main Street restaurant after
EYM acquired ownership, but resigned on or about June 15 to
accept a position with another employer.
I do not find credible Jones’ testimony about her conversa-
tion with Sharts for two reasons. First, I have previously made
clear my dissatisfaction with Jones’ veracity. Second, I find
much more credible the testimony of the Respondent’s other
managers [Knox, Young, Ragar, and Hayes] that they never
received an email directing them to issue discipline to employ-
ees that participated in the April 15 1-day strike. Moreover,
there is no objective documentation to corroborate Jones’ high-
ly suspicious testimony or contradict the consistent and credible
testimony of the Respondent’s other managers on this point.
F. Rehire of Employees at the 47th Street BK
Shortly before the Respondent acquired the 47th Street res-
taurant, Hayes met with her employees, including Humbert and
Ortiz, and informed them that if they wanted to continue work-
ing for the Respondent after the change in ownership, they
would have to complete a job application and other personnel
documents. A few days prior to the changeover, she distributed
job applications to employees.
Several of the individuals employed by Strategic applied to

18 After Strategic sold its interest in its local restaurants to EYM,
Jones applied for a job with EYM. She was given an application for
employment, employee handbook, W–4 form, and “pay card infor-
mation” with instructions to return the packet by March 30, 2015.
Jones was hired.
EYM KING OF MISSOURI, LLC D/B/A BURGER KING 7
work for the Respondent. Shift Manager Jenkins gave Humbert
a job application which he took home to complete, but forgot to
return the next day at work. He was told that he should have
completed the application at the job site, so he returned it to
Jenkins the next day. Jenkins then provided him with the job
application, W–2 form, and employee handbook. Humbert
completed and signed his application and other documents on
March 28 and 29, 2015. Several days after their conversation
about applying for a job with the Respondent, Hayes gave Ortiz
a job application and a package containing personnel materials.
(GC Exh. 40.) She took the job application and other materials
home. On March 31, 2015, Ortiz returned the completed and
signed documents to Hayes. From the time of the changeover
until she completed her job application for the Respondent,
Ortiz never stopped working at the restaurant.
After the Respondent took ownership of the business, Hayes,
who had sole hiring authority for the 47th Street location, re-
hired, among other employees, Humbert, Ortiz, Brown, Camil-
lo, Coney, Frazier, Smith, and Vaughn. Hayes informed Drucil-
la McCoy (McCoy), Joshua Comeaux (Comeaux), and Kadesha
Jackson (Jackson) that even if they applied for employment
with the Respondent, she would not hire them. Consequently,
none of the three employees applied for a job with the Re-
spondent.
G. Respondent’s refusal to hire Wise
One day prior to EYM’s taking ownership of the 47th Street
BK, Hayes met with Wise, Maria Cervantes (Cervantes), Maria
Hernandez (Hernandez), and Rahman Salee (Salee) and told
them as part of the changeover in ownership, they would have
to submit a new job application and other personnel documents.
Wise testified that Hayes gave him a job application which he
completed and submitted that same day. He contends, however,
that Hayes gave Cervantes, Hernandez, and Salee an applica-
tion and a packet that contained other documents. Wise admits
that Hernandez and Cervantes were given additional time to
review and complete their application because they could not
read English.
Wise testified that on March 26, when he arrived for his
morning shift, Hayes approached him and stated she received
an email from upper management that she had to terminate him
and three more employees with immediate effect. According to
Wise, Hayes expressed regret that she had to fire him because
he was one of her best workers. He also alleged that she told
him the Respondent did not give her a reason for his termina-
tion; and he was going to be difficult to replace because he was
one of her best workers. Wise insisted that Hayes said “I really
never had a problem with the Labor thing you were doing. To
each his own. She said, my only problem with you was some-
times maybe you’d leave your name tag home or you’d have a
lot of food cooked up, but I always knew you would take care
of my customers.” (Tr. 69.) Wise testified they continued to
discuss some of the unprofessional behavior of other employees
and the change in ownership. In addition, Wise attested that
Hayes told him she would give him a good reference and, if he
applied, she would put in a “good word” with the manager at
the BK on Blue Parkway Boulevard. Wise insisted that Hayes
ended their conversation by reiterating that she never had a
problem with him, wished him the best of luck, and gave him a
final paycheck.
Hayes denies, almost in its entirety, Wise’s version of their
conversation. She insisted that she gave Wise the same applica-
tion that other employees received. According to Hayes, she
distributed job applications to every employee that wanted to
apply for a job with the Respondent, and did not give an em-
ployee the full employment package until she had decided to
hire him/her. Hayes testified that after reviewing Wise’s appli-
cation, on March 26, she spoke with him in the lobby and in-
formed him that because of changes in his availability and in-
stances of his insubordination, she was not going to hire him to
work for the Respondent. She claims that Wise responded that
he knew the Respondent had the choice of hiring whoever it
wanted. Hayes vehemently denied telling Wise that she re-
ceived an email instructing her to fire him, told him she hated
to “let him go” because he was one of her best workers, rec-
ommended that he apply at a BK not owned by the Respondent,
or offered to give him a good recommendation. Finally, Hayes
insisted that she did not give Wise his last paycheck on March
26, because final paychecks from Strategic were not issued to
employees until a week or two after the Respondent took own-
ership of the business.
There is no evidence to corroborate Wise’s recounting of his
conversation with Hayes. She categorically denies making the
statements Wise attributed to her. On this point I find that
Hayes is equally as credible as Wise. Since the General Coun-
sel has the burden of proving the allegations in the complaint
by a preponderance of the evidence, I credit Hayes’ version of
her conversation with Wise informing him that he would not be
rehired. See Central National Gottesman, 303 NLRB 143, 145
(1991) (finding that the General Counsel did not meet its bur-
den of proof because the testimony that the allegation occurred
was equally credible as the testimony that denied the allega-
tion); Blue Flash Express, 109 NLRB 591, 591–592 (1954)
(General Counsel did not meet its burden of proof because the
General Counsel’s and employer’s witnesses were equally cred-
ible) (questioned on other grounds) Allegheny Ludlum Corp. v.
NLRB, 104 F.3d 1354 (D.C. Cir. 1997). Consequently, I find
that on the morning of March 26, Hayes informed Wise that she
was not going to hire him to work for the Respondent because
of his change in availability and insubordination. I also find
there is no evidence to contradict Hayes’ testimony that Wise
was issued his final paycheck 1 to 2 weeks after the Respondent
took ownership and operation of the restaurant. There was cred-
ible testimony from several witnesses that Strategic issued final
paychecks to employees about one to 2 weeks after the change-
over in ownership.
III. LEGAL STANDARDS
Section 8(a)(1) of the National Labor Relations Act
(NLRA/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 engage in
other concerted activities for the purpose of collective bargain-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ing or other mutual aid or protection.” See Brighton Retail,
Inc., 354 NLRB 441, 441 (2009). An employer violates Sec-
tion 8(a)(1) of the Act if it disciplines or discharges an employ-
ee for engaging in activity that is “concerted” within the mean-
ing of Section 7 of the Act. If it is determined that the activity
is concerted, a violation of Section 8(a)(1) will be found if the
employer knew of the concerted nature of the employee’s activ-
ity, the concerted activity was protected by the Act, and the
adverse employment action was motivated by the employee’s
protected, concerted activity. Relco Locomotives Inc., 358
NLRB 37 (2012) (citing Meyers Industries, 268 NLRB 493,
497 (1984), remanded sub nom. Prill v. NLRB 755 F.2d 941
(D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), supple-
mented 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB,
835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205
(1988)). Once the General Counsel establishes such an initial
showing of discrimination, the employer may present evidence,
as an affirmative defense, showing it would have taken the
same action even in the absence of the protected activity. The
General Counsel may offer evidence that the employer’s articu-
lated reasons are pretext or false. Relco, supra. In addition, the
Act also protects applicants for employment. NLRB v. Town &
Country Electric, Inc., 516 U.S. 85, 87 (1995).
The Board applies the Wright Line19 analysis to evaluate
whether an adverse employment action violates 8(a)(3) of the
Act. The burden is on the General Counsel to initially establish
that a substantial or motivating factor in the employer’s deci-
sion to take adverse employment action against an employee
was the employee’s union or other protected activity. In order
to establish this initial showing of discrimination, the evidence
must prove: (1) the employee engaged in union or concerted
activities; (2) the union or concerted activities were protected
by the Act; (3) the employer knew of the concerted nature of
the activities; and (4) the adverse action taken against the em-
ployee was motivated by the activity. Circumstantial evidence
may be used to show animus. Camaco Lorain Mfg. Plant, 356
NLRB 1182, 1185 (2011); Praxair Distribution, Inc., 357
NLRB 1048, 1048 fn. 2 (2011).
Once the General Counsel has met its initial showing that the
protected conduct was a motivating or substantial reason in
employer’s decision to take the adverse action, the employer
has the burden of production by presenting evidence the action
would have occurred even absent the protected concerted activ-
ity. The General Counsel may offer proof that the employer’s
articulated reason is false or pretextual. Hoodview Vending Co.,
359 NLRB 355, 359 (2012). The General Counsel retains the
ultimate burden of proving discrimination. Wright Line, id.
However, where “the evidence establishes that the reasons giv-
en for the Respondent’s action are pretextual—that is, either
false or not in fact relied upon—the Respondent fails by defini-
tion to show that it would have taken the same action for those
reasons, absent the protected conduct, and thus there is no need
to perform the second part of the Wright Line analysis.” Golden
State Foods Corp., 340 NLRB 382, 385 (2003) (citing Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d

19 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert denied 455 U.S. 989 (1982).
799 (6th Cir. 1982)). The Wright Line analysis is not applicable
when there is no dispute that the employer took action against
the employee because the employee engaged in protected con-
certed activity. Phoenix Transit System, 337 NLRB 510, 510
(2002), enfd. 63 Fed.Appx. 524 (D.C. Cir. 2003).
IV. DISCUSSION AND ANALYSIS
A. Respondent’s refusal to hire Wise
The General Counsel alleges that the Respondent violated
Sections 8(a)(1) and (3) of the Act by refusing to hire Wise
effective March 26, 2015. The Respondent counters that Wise
was not rehired solely because of his insubordination, tardiness,
and a change in his availability. A Wright Line analysis is ap-
propriate in this case because the Respondent’s motive is at
issue. In order to establish the elements of a discriminatory
refusal to hire case, the General Counsel must show: (1) the
employer was hiring or had concrete plans to hire at the time of
the alleged discrimination; (2) the applicant had experience or
training relevant to the announced or generally known require-
ments of the positions for hire or, in the alternative, that the
employer has not adhered uniformly to such requirements, or
were applied as a pretext for discrimination; and (3) that anti-
union animus contributed to the decision not to hire the appli-
cants. Once these elements are established, the burden shifts to
the respondent to show that it would not have hired the appli-
cants even in the absence of their union activity or affiliation.
FES (a Division of Thermo Power), 331 NLRB 9 (2000), sup-
plemental decision 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d
Cir. 2002).
I find, for the reasons discussed below, that the General
Counsel has established that the Respondent’s refusal to hire
Wise was because of his union and protected concerted activi-
ties in violation of Sections 8(a)(1) and (3) of the Act.
1. Wise’s protected union and/or concerted activity
The evidence clearly establishes and I find that Wise en-
gaged in protected union and concerted activity. Wise was an
early supporter of the WOC and WOCKC union organizing
campaign and the fight for $15 an hour for fast food workers.
The evidence is undisputed that he participated in rallies and
strikes, regularly spoke on behalf of the movement in the me-
dia, discussed the benefits of unionization with employees,
filed charges with NLRB, and encouraged coworkers to sign
petitions and participate in strikes and rallies. Wise’s acts were
the epitome of protected union and concerted activity.
2. Respondent’s knowledge of Wise’s protected union and/or
concerted activity
I find that the evidence establishes the Respondent had
knowledge of Wise’s protected union and concerted activity.
The evidence is uncontroverted and Hayes admits that she has
been aware of Wise’s involvement in WOCKC since its incep-
tion. In July 2013, she also knew of his participation in a strike
and rally for $15 an hour for fast food workers locally and na-
tionally. Hayes admitted that she was aware of Wise being
extensively quoted in the media about WOC and his work with
it. Consequently, I find that the Respondent had knowledge of
Wise’s protected concerted and union activity at the time a
decision was made not to hire him.
EYM KING OF MISSOURI, LLC D/B/A BURGER KING 9
3. Adverse employment action based on discriminatory animus
The remaining step is for the General Counsel to establish
whether the Respondent refused to hire Wise because of dis-
criminatory animus. If the General Counsel establishes an
initial showing of discrimination, the burden shifts to the Re-
spondent to show, as an affirmative defense, that it would not
have hired Wise even in the absence of his union and concerted
protected activities.
It is undisputed that the Respondent was hiring at the time of
the alleged discrimination. Likewise, Wise had experience rele-
vant to the position because he had been performing it for the
previous 11 years for BK and 3 years under Hayes’ supervision.
Last, the General Counsel contends that the evidence shows
that the Respondent’s action was motivated because of Wise’s
protected concerted and union activities. The General Counsel
sets forth several bases supporting this argument: (1) Hayes’
stated reasons for not hiring Wise shifted and were not credible;
(2) prior charges filed by Wise against Hayes are evidence of
her proclivity to violate his Section 7 rights; and (3) and none
of the other three employees who were not re-hired were com-
parable to Wise. The Respondent counters that Wise was dis-
charged because he: (1) disobeyed instructions by cooking too
much food; (2) had excessive tardiness; and (3) changed his
availability to work (R. Br. 7–8, 13–14.) According to Hayes,
she did not re-hire Wise because when he applied for employ-
ment with the Respondent, Wise limited his availability; he
engaged in several instances of insubordination; and he had a
record of excessive tardiness. She also testified that his alleged
attempted theft of hamburgers was a consideration in her deci-
sion not to hire him.
The General Counsel argues that the Respondent, for the first
time in its position statement, advances the argument that
Wise’s availability was the reason Hayes did not hire him. Dur-
ing the hearing, the General Counsel moved for the admission
into evidence of the Respondent’s position statement because,
“[the position statement] showed that Respondent was making
its arguments for the first time at hearing. (Tr. 438–439.)” (GC
Br. 22.) I previously credited Hayes’ version of the conversa-
tion she had with Wise on March 26. During that conversation,
she told him that the change in his availability was one of the
reasons he would not be rehired. Since the Respondent’s posi-
tion statement was not the first time this argument was ad-
vanced, the General Counsel’s motion for its admission into
evidence is denied.
The evidence established that in early 2015, Wise normally
worked from 9 a.m. to 5 p.m., but towards the end of his tenure
with the Respondent he worked from 10 p.m. to 6 a.m. Alt-
hough it is clear that Wise noted on his application that he was
not available to work on Sunday and could only work from 9
a.m. to 5 p.m. on Saturday, I do not find Hayes’ articulated
reason credible. The evidence shows that, except for Humbert
and Frazier, Wise was no more limited in his availability than
some other employees who applied and were hired. Moreover,
Hayes testified that Cline could only work certain hours be-
cause she had another job, and Williams was limited in her
availability because she went to school during the day. Never-
theless, there is no evidence that Hayes refused to rehire them
because of their restricted availability.
The General Counsel contends Hayes’ reasons for her refusal
to hire Wise were “not the real reasons for the refusal to hire at
all, they were arguments crafted for defense at hearing.” (GC
Br. 22.) Specifically, the General Counsel argues Hayes’ ac-
tions do not support her assertion that Wise’s actions justified
her refusal to hire him. I agree. Hayes and Clines testified that
sometime after May 2014, they were precluded from disciplin-
ing, without prior approval from Strategic’s human resources
department, Wise and other employees involved with WOC.
Hayes claims that she submitted numerous requests to Strategic
for approval to discipline Wise but never received a response.
According to Hayes, she felt it was futile to continue submitting
proposed disciplines of Wise to human resources so she
stopped. However, I previously found that Hayes and Cline
were not credible on this point. Again, I do not find it credible
or plausible that Strategic required its managers to get pre-
approval before issuing Wise discipline. Moreover, I find that
Hayes’ scant record of disciplining Wise for the infractions she
alleged were serious is evidence of discriminatory pretext. She
only acknowledged issuing him three disciplinary actions since
he started working for her in 2012. The evidence reveals that
she issued him two written counseling actions and a warning.
Hayes alleged that on several occasions Wise sent employees
on break without first asking her permission. Despite the seri-
ousness of the offense, she claimed that she could not remem-
ber the details or produce documentation that he was disci-
plined for allegedly usurping her authority by sending employ-
ees on work breaks. I find it highly unlikely that she would not
be able to remember the specifics of events that she later used
to support a decision not to re-hire Wise.
Hayes also complained that Wise was insubordinate on many
occasions which contributed to her decision not to hire him.
However, she could only cite one instance of alleged insubor-
dination, Wise cooking too much food and giving it to home-
less people. I do not find her testimony credible on this point.
She initially testified that throughout his employment with her
as his manager, Wise refused to follow her instructions not to
cook too much food. However, later she testified that it was not
a problem throughout the 3 years she was his manager. (Tr.
380, 382.) Hayes also indicated that she felt Wise had the atti-
tude that he was in charge of the restaurant. I found this state-
ment is subjective, self-serving and without credible evidence
to corroborate it.
Hayes testified that she did not hire Wise “because of his in-
subordination, his tardies (sic), his no shows, and him feeling
like he can run the restaurant without super—without manage-
ment supervision.” (Tr. 348–349.) Also, she noted that the re-
ported incident involving his attempted theft of hamburgers
was a factor in her decision not to hire him. I do not find Hayes
credible. Hayes admits that in 2014, she only gave Wise two
write-ups for attendance. Nevertheless, she claims Wise’s cu-
mulative tardiness was so serious that it warranted termination.
As previously noted, Hayes testified that over a 3-year period
Wise constantly ignored her instructions not to cook too much
food. Yet she gave contradictory testimony on this point. Ini-
tially, Hayes testified that throughout his tenure under her su-
pervision Wise would overcook food and she would counsel
him each time it happened in her presence. However, she later
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
stated that she only counseled him about it twice over about a 3
year period. While Hayes alleged that the Respondent limited
her ability to discipline Wise, she admits there were no such
restrictions on her ability to discipline him under the Respond-
ent’s ownership. Further, I have already found not credible her
assertion that she received an email limiting her authority to
discipline. Moreover, I did not find Hayes to be an overall
credible witness. Another example is her testimony regarding
Wise’s alleged attempted theft of hamburgers from the store,
which I have discredited for reasons stated earlier.
Hayes insisted there were no other employees who had the
combination of infractions as Wise and that was the basis for
her decision not to rehire him. However, I do not find her rea-
sons credible because of her shifting and inconsistent stories.
For example, Hayes testified that Wise’s instances of tardiness
were factors in her decision not to rehire him. Wise admitted he
was late to work on at least two occasions and/or did not call in
at least 3 hours before his shift on one occasion. Likewise,
Hayes could only specifically recall the three incidents cited.
These incidents of tardiness or no show/no call all occurred in
2014. There is no other evidence of Wise being tardy or disci-
plined for tardiness for the years Hayes was his manager. Re-
ferring to the March to June 2015 time frame, Hayes initially
testified that it was unusual for employees to be late. However,
she later admitted that some employees had multiple write-ups,
but were not terminated for being tardy or absent without prior
approval. Hayes also testified that throughout his tenure work-
ing for her, Wise constantly cooked too much food and gave it
away to the homeless without prior approval from her. Howev-
er, the evidence revealed that she only counseled him twice
over a 3-year period for his alleged acts of insubordination on
cooking too much food. When confronted by this fact on cross-
examination, she admitted that it was not a problem for the 3
years that Wise worked for her. Consequently, I do not find her
testimony believable because a significant portion of Hayes’
testimony contained these types of shifting accounts.
The Respondent posits as a defense that Hayes’ failure to
hire McCoy, Jackson, and Comeaux is proof that her decision
not to hire Wise was nondiscriminatory. The General Counsel
responds that those employees were not similarly situated to
Wise because they never applied to work for the Respondent.
Consequently, the Respondent could not and did not refuse to
hire them. I do not find the Respondent’s defense believable.
Even if Hayes is to be believed, then why did she not also tell
Wise it would be futile for him to apply because she was not
going to hire him because of his multitudes of alleged infrac-
tions? It casts doubt on her credibility; and also makes me
discount, without corroborating evidence, her testimony on why
McCoy, Jackson, and Comeaux were not hired to work for the
Respondent.
Based on the evidence, I find that the Respondent refused to
hire Wise for discriminatory reasons in violation of Sections
8(a)(1) and (3) of the Act, as alleged in paragraph 7 of the
complaint.
B. Employees allegedly told Respondent wanted striking em-
ployees disciplined
The General Counsel argues that the testimony is not disput-
ed that Sharts told an employee, Jones, that the Respondent sent
its general managers an email instructing them to issue written
discipline to employees who participated in the 1-day strike
held on April 15. The Respondent insists it has credibly disput-
ed Jones’ accusations and contends that its witnesses are more
credible than Jones on this charge. The Respondent also argues
that despite the General Counsel’s urging, the judge should not
draw an adverse inference against the Respondent for failing to
call Sharts as a witness because she was not employed by the
Respondent at the time of the hearing. Last, the Respondent
insists that even assuming the truthfulness of Jones’ testimony,
the employees could have been subject to discipline because the
April 15, strike was an intermittent strike and thus unprotected.
I find that the General Counsel has failed to establish that the
Respondent told employees they would be disciplined for en-
gaging in union and concerted protected activities in violation
of Sections 8(a)(1) of the Act for the reasons discussed below.
The General Counsel argues that, taken in context, Sharts’
alleged statements to Jones would “reasonably tend to restrain,
coerce or interfere with rights guaranteed by the Act.” Bloom-
field Health Care Center, 352 NLRB 252 (2008), quoting
Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd.
sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985). The Board has established an objective test for deter-
mining if “the employer engaged in conduct which would rea-
sonably have a tendency to interfere with the free exercise of
employee rights under the Act.” Santa Barbara New-Press, 357
NLRB 452, 476 (2011). This objective standard does not de-
pend on whether the “employee in question was actually intim-
idated.” Multi-Ad Services, 331 NLRB 1226, 1228 (2000),
enfd. 255 F.3d 363 (7th Cir. 2001). The mere threat of an un-
specified reprisal is sufficient to support a finding that the em-
ployer has violated Section 8 (a)(1) of the Act. Metro One Loss
Prevention Services Group, 356 NLRB 89 (2010).
The record established that Jones testified to a conversation
she allegedly held with Sharts on or about April 17. According
to Jones, Sharts told her that a global email was sent to all of
the Respondent’s store managers instructing them to issue writ-
ten discipline to employees who went on strike on April 15.
Jones claims Sharts said that because she felt the discipline was
unfair, she was going to change the scheduling records to re-
flect that those employees who struck were not scheduled to
work on April 15. There is no evidence that any of the striking
employees at the Main Street restaurant were disciplined.
Since the General Counsel did not produce Sharts, a copy of
the email Jones alleged was sent by the Respondent, or any
other corroborating evidence, the General Counsel’s case de-
pends entirely on the credibility of Jones. The Respondent,
however, did produce other managers to refute Jones’ testimo-
ny that a global email was sent to its managers directing them
to discipline employees who went on strike. I already found
them to be more credible than Jones on this issue. Consequent-
ly, I credit the testimony of Hayes, Knox, Young, and Ragar
and find that the Respondent did not send its store managers an
email instructing them to issue written discipline to employees
who participated in the strike on April 15. I do not find that
Jones’ testimony about the substance of her conversation with
Sharts, if it occurred, was true.
EYM KING OF MISSOURI, LLC D/B/A BURGER KING 11
The General Counsel argues that because the Respondent
failed to obtain Sharts’ testimony “an adverse inference may be
drawn regarding any factual question on which the witness is
likely to have had knowledge. 285 NLRB 1122, 1123 (1987).
This is particularly true where, as here, the witness is the Re-
spondent’s agent.” (GC Br. 4.) I reject this argument. A judge
may consider all the circumstances in determining whether an
adverse inference is warranted or the effect or scope of the
adverse inference. See Spurlino Materials, LLC, 357 NLRB
1510, 1521–1522 (2011). A party’s failure to explain why it
did not call the witness may support drawing an adverse infer-
ence. See Martin Luther King, Sr. Nursing Center, 231 NLRB
15, 15 fn. 1 (1977). Ultimately, however, the judge has discre-
tion to decide whether an adverse inference is warranted when
a party fails to call witnesses reasonably assumed to be favora-
bly disposed toward the party. The Board and the Federal
courts have also consistently held that it is not an abuse of dis-
cretion 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 Hospi-
tal 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 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, Sharts could have been assumed to be
favorably disposed towards either party. If the Respondent had
called Sharts to testify, it is not unreasonable to assume that she
might have contradicted Jones’ testimony and revealed that she
had not received an email from the Respondent instructing her
to discipline the striking employees. Likewise, if called by the
General Counsel, Sharts might have supported in whole or in
part Jones’ version of their conversation. I am also disinclined
to draw an adverse inference against the Respondent because it
explained that because Sharts was no longer its employee, it did
not call her as a witness. Property Resources Corp., 285 NLRB
1105, 1105 fn. 2, 1108 (1987), enfd. F.2d 964 (D.C. Cir. 1988).
There is no evidence that disputes the Respondent’s contention
that Sharts resigned her position with the Respondent about
June 15, to accept another job.
Accordingly, I find that the General Counsel failed to meet
its burden of proof regarding this allegation and recommend
that paragraph 5(b) of the complaint be dismissed.
C. Striking employees at the 47th Street BK disciplined on
April 16
1. Case law and the parties’ legal arguments
The General Counsel charges that the Respondent violated
the Act when it disciplined six employees because they exer-
cised their Section 7 guaranteed right to strike. Moreover, the
General Counsel rejects the proposition that the employees lost
the protection of the Act because they were engaged in inter-
mittent strikes. Notwithstanding, the Respondent contends the
work stoppage met all the factors of an intermittent strike. The
Respondent argues that even assuming that participation in the
strike was protected concerted activity, management had no
knowledge of the employees’ protected concerted activity when
adverse action was taken against them. The Supreme Court has
affirmed that workers without bargaining representatives or
established procedures for resolving their grievances may take
collective and concerted action to voice their grievances about
terms and conditions of employment. Likewise, the employees
may not be discharged or otherwise discriminated against for
engaging in protected concerted work stoppages to protest
working conditions. See NLRB v. Washington Aluminum Co.,
370 U.S. 9 (1962). The scope of protected activity, however, is
not unlimited. The Board has consistently held that partial and
intermittent strikes are not protected. Pacific Telephone & Tel-
egraph Co., 107 NLRB 1547, 1548 (1954) (multiple “hit and
run” stoppages intended to “harass the company into a state of
confusion” not protected). The Board defines an intermittent
strike as “a plan to strike, return to work, and strike again.”
Farley Candy Co., 300 NLRB 849, 849 (1990). A work stop-
page becomes an intermittent strike when “the stoppage is part
of a plan or pattern of intermittent action which is inconsistent
with a genuine strike or genuine performance by employees of
the work normally expected of them by the employer.” Poly-
tech, Inc., 195 NLRB 695, 696 (1972). “A partial strike is a
concerted attempt by employees, while remaining at work, to
bring economic pressure to bear on their employer, as by refus-
ing to work overtime, engaging in a slowdown, or accepting
some tasks and refusing to perform others.” Coastal Insulation
Corp., 354 NLRB 495, fn. 82 (2009); Audubon Health Care
Center, 268 NLRB 135, 136 (1983) (“A partial strike, in which
employees refuse to work on certain assigned tasks while ac-
cepting pay or while remaining on the employer’s premises is a
method of striking which is not condoned by the Board”). The
employer bears the burden of showing a strike is unprotected.
See, e.g., Silver State Disposal Services. 326 NLRB 84, 85
(1998).
The Board does not require a fixed framework for analyzing
whether a series of strikes constitute unlawful intermittent
strikes. Rather, several factors are considered including: fre-
quency and timing, whether the strikes were part of a common
plan, whether there was Union involvement, whether the strikes
were intended to harass the employer into a state of chaos,
whether the strikes were for distinct acts of the employer, and
whether the alleged discriminatees intended to “reap the bene-
fits of strike action without assuming the vulnerabilities of a
forthright and continuous strike. . . .” See Honolulu Rapid
Transit Co., Limited, 110 NLRB 1806 (1954); Swope Ridge
Geriatric Center., 350 NLRB 64 (2007); New Fairview Hall
Convalescent Home., 206 NLRB 688 (1973), enf. denied 344
F.2d 998 (8th Cir. 1965); WestPac Electric, 321 NLRB 1322
(1996). Each factor, however, includes various exceptions and
caveats.
The Respondent insists that the employees were engaged in
an intermittent strike and therefore not protected by the Act. It
argues that the “April 15, 2015 strike was the ninth in a series
of one-day strikes nationally since November 29, 2012, and the
seventh in Kansas City since July 2013.” (R Br. 10) Moreover,
the Respondent contends that WOKC and WOC orchestration
of strikes, rallies, and other actions associated with organizing
the strikes were part of a plan to achieve their economic goal to
increase the wages of low-wage workers nationally. According
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
to the Respondent, the strikes, rallies, and attendant events were
“intentionally scheduled at times during the strike day to
achieve maximum disruption of restaurant business.” (R. Br.
16.) These actions, the Respondent insists, show that the strike
“had the same economic purpose of raising wages and was not
in response to any distinct action of EYM in the operation of
the East 47th Street restaurant” and the disciplined employees
admitted they intend to participate in similar future one-day
strikes. (R. Br. 17, 21.) Even assuming the employees engaged
in concerted protected activity, the Respondent argues it had no
knowledge of the employees’ reasons for not reporting to work
and denies the disciplines were issued because of discriminato-
ry animus.
2. Frequency and timing of strikes and whether the strike’s
intent was to harass
Although the Respondent contends that the April 15 strike
was the ninth strike nationally and the seventh in a series of
strikes in Kansas City, the evidence is undisputed that April 15,
was the only time the employees had struck against the Re-
spondent. The strike occurred about 4 months after the WOC-
KC 1-day strike against Strategic and other industry employers.
(R. Reply Br. 7) The Respondent insists, however, that it is the
“character of the strike” rather than the ownership of the busi-
ness by a succeeding purchaser that dictates whether it is an
intermittent strike. However, the Respondent cites no case law
to support this proposition. Clearly, a single one-day strike does
not constitute intermittent strikes. The Board has often declined
to find that even two work stoppages amount to intermittent
strikes without a showing that at least the employees sought to
overtake the work site, attempted to work on their own terms,
engaged in violence, or prevented other employees from work-
ing. See Crenlo, Division of GF Business Equipment, Inc., 215
NLRB 872, 878 (1974), enfd. in pertinent part 529 F.2d 201
(8th Cir. 1975) (finding two in-plant work stoppages about the
amount of a wage increase were protected by the Act); Robert-
son Industries, 216 NLRB 361 (1975) (finding that two strikes
were not intermittent work stoppages, in part because the
strikes “involved different situations and different people”).
None of those factors are present in the case at hand. The
Charging Party notes correctly that there is no Board precedent
to support the argument that “strikes against other employers in
the same industry could constitute intermittent strikes.” (CP Br.
19) Even if, as the Respondent argues, Wise and the Union
intend to continue holding one-day strikes in the future, it does
not render the strike at issue unprotected. Employees who re-
turn to work after striking may continue to advocate about con-
cerns that caused them to strike, and may also decide to strike
again in the future to “continu[e] their earlier efforts to have
their work-related problems resolved.” Robertson Industries,
216 NLRB at 362; see also Texas Gas Corp., 136 NLRB 355,
364–365 (1962) (finding that the union made a genuine uncon-
ditional offer to return to work, even though the union repre-
sentative acknowledged that employees might go on strike
again if negotiations about employee concerns failed to produce
an agreement).
The Respondent insists that the strikes, including the action
at issue, have been deliberately scheduled so as to “harass EYM
and other fast food employers into a state of chaos.” (R. Br. 16–
17.) The evidence shows, however, that only 8 of the 25 em-
ployees at the Respondent’s 47th Street BK participated in the
strike. Moreover, two of the eight employees were not sched-
uled to work on the day of the strike. The only evidence that
the strike negatively impacted the Respondent’s operation was
Hayes’ testimony that she was “short-staffed” four employees
for the dinner crowd. According to her, this caused complaints
from customers about the longer than usual wait times for ser-
vice; and the employees who worked that day had to work
harder. It is difficult for me to discern how a few minutes
longer wait time for customers to place an order or receive their
food or employees having to work harder amounts to harass-
ment of the Respondent into a state of chaos. The situation
experienced at the 47th Street BK on April 15 was likely no
more chaotic than a typical day where one or more employees
failed to notify management they would not be at work. Fur-
thermore, there is no evidence the Respondent experienced a
significant drop in sales, had employees quit in frustration,
permanently lost customers, or suffered any other adverse im-
pact because of the striking employees’ absences. Simply be-
cause a strike might have been effective does not render it un-
protected.20 In Swope Ridge, the Board noted, “Clearly, the
fact that the strike may have been designed to disrupt the Re-
spondent’s operations and at the same time to provide an incen-
tive for employees to participate in the strike does not render
the strike unprotected. Moreover, contrary to the Respondent’s
assertion that it has been effectively deprived of its right to
permanently replace employees engaged in periodic 2-day eco-
nomic strikes, there appears to be no legal impediment to per-
manently replacing such economic strikers regardless of the
length of each strike. Id. at 67. See also Atlantic Scaffolding
Co., 356 NLRB 835, 837 (2011) (holding that the protected
nature of the work stoppage in question was not invalidated by
the effective timing of the work stoppage). I acknowledge that
the Board has held that it’s the “inherent character” rather than
the impact of the strikes that are probative of whether the
strikes are protected concerted activity. See Pacific Telephone
& Telegraph Co., 107 NLRB 1547, 1549–1550 (1954); Swope
Ridge Geriatric Center, 350 NLRB at 67. Nonetheless, the
Respondent has failed to produce evidence, other than Hayes’
and Wise’s limited testimony, to support its case on this point.
3. Union involvement and whether strike part of a
common plan
Although WOCKC was not (and had not asked to be recog-
nized as such) the striking employees’ exclusive bargaining
representative, it is undisputed that WOCKC was intricately
involved in orchestrating the April 15 strike. Therefore, the
question becomes whether the strike was part of a common
plan by WOCKC to exert additional economic pressure on the
Respondent to accede to their demands. I find that the evidence
does not support this factor. In support of its case, the Respond-

20 In the matter at issue, it does not appear that the strike was effec-
tive because there is no evidence that the employees received a wage
increase to $15 an hour or any of the other changes in terms and condi-
tions of employment that the employees sought from their employer(s).
EYM KING OF MISSOURI, LLC D/B/A BURGER KING 13
ent points to Wise’s testimony that one of the purposes of the
strike was to put pressure on the fast food industry to pay a
higher minimum wage. While Wise admitted that in organizing
the strike, the Union utilized similar tactics for the strikes, I do
not find that there was enough commonality to show there was
a common plan to exert pressure on the industry, in particular
the Respondent, to pay a higher minimum wage. The evidence
is not conclusive that all the striking employees provided their
different employers with the same worded strike notice and
return to work notice, followed the same procedure for partici-
pating in the strikes, or that the strike had an economic impact
on all the different employers. Moreover, unlike cases in which
the employees were represented by a union, there is no evi-
dence that WOCKC had a strategy of using the strike (or even
if I were to consider the past strikes under Strategic’s owner-
ship) to harass the Respondent during ongoing collective-
bargaining negotiations or any negotiations for higher mini-
mum wages or changes to other terms and conditions of em-
ployment.
4. Whether strike taken to address distinct acts of
the Respondent
It is undisputed that WOCKC organized employees to partic-
ipate in the April 15 strike as part of a nationwide campaign to
advocate for a higher minimum wage in the fast food industry.
Multiple employers in the industry were the targets of the
strike. The Respondent argues that the only purpose of the
strike was to gain a higher minimum wage; and the Respondent
was not targeted because of any distinct acts it had committed. I
find, however, that the Respondent’s employees also participat-
ed in the April 15 strike to protests grievances they specifically
had against the Respondent. The strike notice they submitted to
the managers at the 47th Street BK stated they were striking
because locally their workers have been subjected to injury
because of lack of protective equipment. The notice also ex-
plained that they were protesting “unfair labor practices, unsafe
working conditions, unpredictable scheduling and wage theft
occurring here . . .” (GC Exhs. 21, 23.) (Emphasis added.)
Even if the Respondent had established a few of the factors
for analyzing whether the strike was part of a series of unlawful
intermittent strikes, the surrounding circumstances, as dis-
cussed above, should indicate to the Respondent that improve-
ment of local working conditions was also a reason for the
work stoppage. The Board has explained that, “even if the pur-
pose of the walkoff is not clearly communicated to the employ-
er at the time, if from surrounding circumstances the employer
should reasonably see that improvement of working conditions
is behind the workoff, it may not penalize the employees in-
volved without running afoul of Section 8(a)(1).” CGLM., Inc.,
350 NLRB 974, 980 (2007).
5. Whether employees intended to reap the benefits of a strike
without risk
The Respondent argues that Wise’s testimony supports a
finding that “the reason for the succession of one-day strikes is
to avoid the vulnerabilities of a forthright, continuous strike,
while seeking to reap the benefits of a strike.” (R Br. 19.)
Moreover, the Respondent contends that the Union’s strike
tactics made it “almost impossible” for the Respondent to law-
fully hire replacement workers; and the Union’s reimbursement
of the employees’ loss of a day’s wages negates the argument
that they suffered a hardship by striking. The General Counsel
counters that the strikers lost 1-day of wages which is signifi-
cant for them because they are low-wage employees. Further,
the General Counsel notes that even though the strike was for
one day, they still risked the Respondent permanently replacing
them.
As previously noted, the Respondent has the burden of estab-
lishing the strike held on April 15 is part of a series of intermit-
tent strikes. However, the Respondent has provided minimum
evidence to establish this last factor. While the Respondent
points to Hubert’s testimony that he received strike pay, there is
no evidence or testimony that the other employees received the
same payment. Even assuming that it is more probable than not
that if Hubert received strike pay the other employees also re-
ceived it, there is still no evidence that the Respondent faced a
legal barrier to permanently replacing the striking employees.
Moreover, Hubert’s limited testimony is insufficient to show
that the striking employees were trying to dictate the terms and
conditions of their employment. See Honolulu Rapid Transit
Co., 110 NLRB 1806 (1954); Polytech, Inc., 195 NLRB 695
(1972). Consequently, I find that the employees at issue did not
participate in the one-day strike as a way of reaping the benefits
of a strike without assuming its risks.
Accordingly, I find that the April 15 strike does not meet the
definition of an intermittent strike, but rather it was concerted
protected activity.
6. Whether the Respondent was aware of employees’ protected
concerted activity
The General Counsel argues that since the strike is protected
activity, a Wright Line analysis is not appropriate because “the
existence of the 8(a)(1) violation does not turn on the employ-
er’s motive” but rather whether the conduct lost the protection
of the act. (GC Br. 7) However, the Respondent and the Charg-
ing Party argue their positions using the Wright Line analysis.
Under the legal theory argued by the General Counsel, I find
that the employees’ action did not lose protection of the act
because, as discussed in detail above, it was not an intermittent
strike. There is also no allegation or evidence that it was a par-
tial strike. Moreover, there is not an allegation or evidence that
the strike activity of the six employees was abusive, defamato-
ry, threatening, or prevented the Respondent’s customers from
accessing its premises.
Analyzing the case under Wright Line, the remaining factors
(since I have already found the strike was protected concerted
activity) the General Counsel must prove are: whether the Re-
spondent, through Hayes, was aware of their protected and
concerted activity; and whether, as a result of their protected
strike action, Hayes issued the employees written discipline. If
the General Counsel is able to establish a prima facie case, the
burden of persuasion shifts to the Respondent to show that it
would have taken the same action even in the absence of the
protected activity. NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983); Coastal Insulation Corp., supra.
Again, Hayes did not receive a strike notice informing her
that Camilo, Humbert, and Ortiz would be participating in a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
strike on April 15. According to her, at the time she prepared
the discipline, she was unaware of the reasons for their failures
to appear for work. Although the General Counsel failed to
establish that on April 15, Hayes was aware of a strike notice
for Camilo, Humbert, and Ortiz, she admitted, and I have found
that Hayes did receive a strike notice on April 15, at about 2:30
p.m. naming Vaughn, Frazier, and Coney as strike participants.
She also acknowledged that by 2:30 p.m. on April 15 she was
aware that a strike was in progress. Notwithstanding, Hayes
admitted that on April 16, she prepared and began to issue the
six employees discipline and did not care that their names were
on the strike notice because “[t]hey just didn’t show up for their
shift.” (Tr. 390.) Her admission and the evidence are clear
indications that she was aware prior to preparing the disciplines
that the employees had participated in the strike. By 2:30 p.m.
on April 15, Hayes should reasonably have been aware from
surrounding circumstances that the absent employees were on
strike. There was an announcement of the upcoming strike. (GC
Exh. 3.) Hayes admitted that she knew Ortiz, Humbert, and
Camillo had been active in WOCKC events and the other em-
ployees had also been featured in various local media. The fact
that the six employees, all of whom are active in WOCKC,
were absent on the day of the strike would not appear as coin-
cidental to a reasonable person. Moreover, there is no evidence
that Hayes did not receive the return to work notices provided
for all six employees. CGLM., Inc., at 980. Consequently, I find
that by April 15 at about 2:30 p.m. Hayes was aware that all six
of the employees were not at work because they were on strike.
7. Discriminatory Animus/Respondent has not sustained
its burden
The Respondent argues that Hayes issued the employees
written warnings for failure to follow company policy in report-
ing their absences from work, rather than because of discrimi-
natory animus. However, the Board has noted, “the existence of
or lack of unlawful animus” is not material when “the very
conduct for which employees are disciplined is itself protected
concerted activity.” Burnup & Sims, Inc., 256 NLRB 965, 975
(1981). Moreover “Calling a strike . . . an absence from work
justifying discharge is to write Section 13 out of the Act.” An-
derson Cabinets, 241 NLRB 513, 518, 519 (1979). Section 13
of the Act states that “[n]othing in this Act . . . shall be con-
strued so as either to interfere with or impede or diminish in
any way the right to strike. . . . ” Even if the employees did not
notify Hayes that they would not be at work on April 15, it is
immaterial. The failure of the employees to report to work was
“a concerted action for mutual aid and protection.”Lisanti
Foods, Inc., 227 NLRB 898, 902 (1977). See also Iowa Pack-
ing Co., 338 NLRB 1140, 1144 (2003). She knew the employ-
ees were on strike, she did not speak with them prior to issuing
the discipline, nor did she conduct an independent investigation
prior to issuing the discipline. In this case although it is unnec-
essary to find discriminatory animus, Hayes’ own testimony
establishes that she issued the discipline because of discrimina-
tory reasons. Moreover, the Respondent cannot and has not
established that it would have taken the same action against
these employees in the absence of their protected concerted
activity.
Consequently, I find that, in violation of the Act, the em-
ployees were issued discipline because they went on strike.
CONCLUSIONS OF LAW
1. The Respondent, EYM King of Missouri, LLC d/b/a
Burger King, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Workers’ Organizing Committee—Kansas City is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By failing and refusing to hire Terrence Wise on March
26, because he engaged in protected concerted activities, the
Respondent has violated Section 8(a)(1) and (3) of the Act.
4. By issuing written discipline to its employees Susana De
la Cruz Camilo, Kashanna Coney, MyReisha Frazier, West
Humbert, Osmara Ortiz, and Myresha Vaughn on April 16, the
Respondent has violated Section 8(a)(1) of the Act.
5. The above violations are unfair labor practices that affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
6. The Respondent has not violated the Act except as set
forth above.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, having discriminatorily failed and refused
to hire Terrence Wise, must offer him the position at issue and
make him whole for any loss of earnings and other benefits he
suffered as a result of the discrimination against him from the
date of the discrimination to the date of his reinstatement.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as provided in
New Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010).
The Respondent shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar
quarters. The Respondent shall also 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, Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB
No. 10 (2014).
The Respondent having issued discipline to employees Su-
sana De la Cruz Camilo, Kashanna Coney, MyReisha Frazier,
West Humbert, Osmara Ortiz, and Myresha Vaughn for engag-
ing in protected concerted activity must rescind the discipline
and ensure all reference to them are removed from the employ-
ees’ personnel files and any other files the Respondent main-
tains.
The Respondent having engaged in the discriminatory ac-
tions as set forth above in the Conclusions of Law must post the
attached Notice to Employees at the restaurants at 1102 East
47th Street, Kansas City, Missouri, and 3441 Main Street, Kan-
sas City, Missouri in English and Spanish. Further, the Re-
spondent must read the attached Notice to Employees at both
EYM KING OF MISSOURI, LLC D/B/A BURGER KING 15
locations during each shift the Respondent maintains.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended21
ORDER
The Respondent, EYM King of Missouri, LLC d/b/a Burger
King, Kansas City, Missouri, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to hire any employee because the
employee engaged in protected concerted activity or supported
Workers Organizing Committee—Kansas City or any other
union.
(b) Disciplining employees for engaging in protected con-
certed activity or supporting Workers Organizing Committee—
Kansas City or any other union.
2. Take the following affirmative action necessary to effec-
tuate the purposes and policies of the Act.
(a) 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 a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previously en-
joyed.
(b) 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 deci-
sion.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful disciplines
issued to Susana De la Cruz Camilo, Kashanna Coney, MyRe-
isha 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 unlawful disciplines will
not be used against them in any way.
(d) 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 designated 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 backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities at 1102 East 47th Street, Kansas City, Missouri and
3441 Main Street, Kansas City, Missouri, copies of the attached
notice marked “Appendix.”22 Copies of the notice, on forms
provided by the Regional Director for Region 14 Sub-region
17, after being signed by the Respondent’s authorized repre-

21 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
22 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.”
sentative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees and members are customarily post-
ed. In addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since March 26,
2015.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated: February 9, 2016
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 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 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 Rela-
tions Act (the Act).
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 previ-
ously 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
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 Ter-
rence 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 Administra-
tion allocating backpay to the appropriate quarters.
WE WILL compensate Terrence Wise for the adverse tax con-
sequences, 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 Co-
ney, 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
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/14–CA–148915 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.