Papa���s Penn Inc. d/b/a Papa John���s

National Labor Relations Board - Board Decisions

Dec 14, 2017

365 NLRB No. 155 (N.L.R.B. 2017)

365 NLRB No. 155
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.
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Papa’s Penn Inc. d/b/a Papa John’s and Fast Food
Workers Committee. Case 29–CA–169864
December 14, 2017
DECISION AND ORDER+
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On August 18, 2016, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief, and
the Charging Party filed exceptions.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
adopt the judge's rulings, findings,1 and conclusions as
modified below and to adopt his recommended Order.
In dismissing the allegation that the Respondent dis-
charged employee Jesse Scott because of his union activ-
ities and/or protected concerted activities in violation of
Section 8(a)(3) and (1) of the Act, the judge failed to
apply the burden-shifting framework articulated in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). In-
stead, the judge simply found that “the only reason for
Scott’s discharge was the argument that he had with
[store manager Juan] Otero when his paycheck was miss-
ing on February 12, 2016,” conduct that is not alleged to
be protected by the Act. The judge found “totally im-
plausible” the possibility that the Respondent had retali-
ated against Scott because of his earlier involvement with
the Fast Food Workers Committee, which had addressed
employees’ complaint that the Respondent had paid its
employees less than minimum wage.
On exception, the General Counsel argues that the
judge erred in failing to apply the Wright Line frame-
work. Under Wright Line, the General Counsel has the
initial burden of establishing that an employee’s union or
protected concerted activity was a motivating factor in an
employer’s decision to take adverse action against the

1 The General Counsel has implicitly excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
The General Counsel excepted to the judge’s failure to find that the
Charging Party, the Fast Food Workers Committee, is a labor organiza-
tion under Sec. 2(5) of the Act. We assume that it is a labor organiza-
tion.
employee. 251 NLRB at 1089. The General Counsel
meets this burden by showing that the employee engaged
in union and/or protected concerted activity, that the em-
ployer had knowledge of that activity, and that the em-
ployer harbored animus against union or protected con-
certed activity. See, e.g., Mesker Door, Inc., 357 NLRB
591, 592 (2011).2 If the General Counsel makes this
initial showing, the burden then shifts to the employer to
prove that it would have taken the same action even if
the employee had not engaged in protected activity.
Wright Line, 251 NLRB at 1089.
We assume, without deciding, that the General Coun-
sel met his initial burden under Wright Line to prove that
Scott’s union and/or protected concerted activity was a
motivating factor in his discharge. We find, however,
that evidence presented by the Respondent, described
below, proves that it would have discharged Scott even if
he had not engaged in union and/or protected concerted
activity.3
As more fully described in the judge’s decision, during
the afternoon of February 12, 2016, the Respondent’s
payroll company delivered the employees’ paychecks to
the store, and Scott discovered that his check was miss-
ing. At around 1 a.m., when the shift ended, Scott insist-
ed that Store Manager Juan Otero pay him in cash, and
Scott refused to leave or turn in the day’s receipts until

2 “[P]roving that an employee's protected activity was a motivating
factor in the employer’s action does not require the General Counsel to
make some additional showing of particularized motivating animus
towards the employee’s own protected activity or to further demon-
strate some additional, undefined ‘nexus’ between the employee's pro-
tected activity and the adverse action.” Libertyville Toyota, 360 NLRB
1298, 1301 fn. 10 (2014), enfd. 801 F.3d 767 (7th Cir. 2015).
In Chairman Miscimarra’s view, the General Counsel must make a
particularized showing that links an employee's protected activity to the
adverse employment action taken against that employee. In Wright
Line, the Board stated that the General Counsel must make “a prima
facie showing sufficient to support the inference that protected conduct
was a ‘motivating factor’ in the employer’s decision.” 251 NLRB at
1089. In other words, the General Counsel must establish a link or
nexus between the employee's protected activity and the particular
decision alleged to be unlawful. See T-Mobile USA, Inc., 365 NLRB
No. 15, slip op. at 1 fn. 1 (2017); Libertyville Toyota, 360 NLRB at
1306 fn. 5 (Member Miscimarra, concurring in part and dissenting in
part).
3 Chairman Miscimarra would adopt the judge’s finding that the
sole motivation for Scott’s discharge was his misconduct on February
12, 2016. Accordingly, in adopting the judge’s dismissal of the allega-
tion that the Respondent violated Sec. 8(a)(3) and (1) when it dis-
charged Scott, Chairman Miscimarra finds it unnecessary to apply
Wright Line, supra, which applies in dual-motive cases. See Hawaiian
Dredging Construction Co., 362 NLRB No. 10, slip op. at 14 (2015)
(Member Miscimarra, dissenting), enf. denied 857 F.3d 877 (D.C. Cir.
2017). The judge’s findings establish that there was only one, lawful
motive for Scott’s discharge, and that the General Counsel failed to
satisfy his burden of proving that Scott’s discharge occurred because of
unlawful considerations.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he was paid. Otero said he could not do that without the
permission of Jean Morace, the Respondent’s owner.
Scott again insisted on being paid, and Scott and Otero
got into a loud argument in the presence of a trainee.
Otero then contacted the police and they arrived. After
some discussion, in which Scott still refused to leave or
turn in the receipts, Otero contacted Morace at home,
who told him to pay Scott in cash and tell Scott not to
return to work. Otero paid Scott in cash. Scott then
turned over the receipts, and Otero discharged him.
Otero testified that he discharged Scott for refusing to
turn over his receipts on February 12. He further testi-
fied that Scott’s conduct—which included yelling, curs-
ing, and banging on a table—made him and a trainee
uncomfortable. Otero’s explanation is supported by the
testimony of Morace, whom Otero telephoned that even-
ing. Morace testified that, during their telephone conver-
sation, he told Otero to pay Scott in cash and that he
agreed with Otero’s decision to discharge Scott for his
conduct that evening.
The judge’s finding that Scott’s failure to turn over the
receipts was the sole reason for his discharge makes clear
that he credited Morace’s and Otero’s version of what
happened on the evening of February 12. Accordingly,
we conclude that the Respondent has proved, based on
this credited evidence, that it would have discharged
Scott on February 12, even in the absence of his union
and/or protected concerted activity.
For the same reasons, we also affirm the judge’s dis-
missal of the complaint allegation that the Respondent
violated Section 8(a)(3) and (1) by refusing to rehire
Scott when he sought reinstatement approximately 1
week after his discharge. We reject the General Coun-
sel’s reliance on Scott’s testimony that Otero told Scott
that he would not rehire him because he had brought Lisa
Delancey, an organizer for the Charging Party, into the
store. Otero denied Scott’s version of this conversation.
Rather, Otero testified that he told Scott that he would
not rehire him because what happened on February 12
was not Scott’s first incident of inappropriate conduct,
and that Otero did not want Scott in the store for “the
safety of [his] employees.” The judge credited Otero’s
testimony on this point, and we have affirmed the judge’s
credibility determinations.4 Accordingly, we conclude

4 Contrary to the General Counsel’s argument, the judge’s decision
to credit Otero’s testimony over Scott’s testimony on this point is nei-
ther “inadequate” nor “contradictory.” The judge acknowledged the
witnesses’ conflicting testimony and found that “Otero credibly denied
Scott’s version of this conversation.” That credibility finding is not
undermined by the judge’s subsequent finding that “[e]ven if” Otero
had made the statement attributed to him by Scott, Otero would have
been referring to a demonstration Delancey led at the store after Scott
was discharged, which would have had nothing to do with the discharge
that the Respondent has proved, based on this credited
evidence, that the Respondent would not have rehired
Scott even in the absence of his union and/or protected
concerted activity.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. December 14, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Kimberly A. Walters, Esq., for the General Counsel.
Jean Morace, president of the Respondent.
Ceildih B. Gao, Esq., counsel for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Brooklyn, New York, on July 7, 8, and 11, 2016. The
charge was filed on February 17, 2016, and the complaint was
issued on May 20, 2016. In substance, the complaint alleged
that on or about February 12, 2016, the Respondent discharged
Jesse Scott because he supported the Union and engaged in
concerted activities.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is admitted and I find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. The Charging Party is a community organi-
zation that is involved in a variety of social issues. It is not
clear to me that it actually exists for the purpose, in whole or in

itself. We neither adopt nor reject the latter finding, and we express no
view on the appropriate disposition of this case had the judge not cred-
ited Otero over Scott regarding their postdischarge conversation.
PAPA’S PENN INC D/B/A PAPA JOHN’S 3
part, of representing employees in collective bargaining. Nev-
ertheless, its status as a labor organization is not really critical
to this case.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The Respondent’s owner is Jean Morace. He is a franchisee
of Papa John’s Pizza and he operates one store in Brooklyn,
New York. His store manager is Juan Otero and as he has the
power to hire and fire, I find that he is a supervisor within the
meaning of Section 2(11) of the Act. The store employs about
eight or nine drivers and two individuals who make the pizzas.
Jesse Scott was employed at this store on two occasions. On
the first occasion he was discharged in 2013. He was rehired in
November 2014 as a driver. In this capacity he worked Fridays,
Saturdays, and Sundays, either from 6 p.m. to midnight or to 1
a.m. Basically, his job was to deliver takeout orders, collect the
money, and then turn it in at the end of his shift. Morace’s opin-
ion was that Scott was a reliable employee, but one who had a
temper and who had difficulty getting along with others. Scott
acknowledged that he was not very popular.
Lisa Delancey is an organizer, who is employed by the New
York Committee for Change (NYCC). This is a not for profit
community organization. She testified that the Charging Party,
the Fast Food Workers Committee is an organization that is
allied with the NYCC and that it is engaged in a variety of ac-
tions to promote fair pay for fast food workers. She described
her role as going to different fast food stores in order to speak
to workers and inquire about any issues that they might have.
She also testified that in 2015, she became involved in a “wage
war” designed to get all fast food workers in New York, $15
per hour. She testified that this involved holding demonstra-
tions at various restaurants throughout New York State. Jesse
Scott testified that he and two other employees of the Respond-
ent attended a number of these demonstrations. But none of
those demonstrations were at the Respondent.
There is no evidence that either the NYCC or the Fast Food
Workers Committee has ever actually represented employees
for the purpose of collective bargaining as that phrase is used in
the Act. 1
Scott testified that in the summer of 2015, Delancey visited
the store, usually around 5 p.m. on Fridays and spoke to em-
ployees about various issues. Whatever discussions were had,
they apparently did not involve soliciting employees to author-
ize the Fast Food Workers Committee to represent them in
collective bargaining.
On December 31, 2015, an increase in New York’s mini-
mum wage law became effective. But on January 8, the first
Friday after the law went into effect, the Respondent hadn’t yet
changed its payroll to reflect the increase. So on that day, which
is the normal payday for the employees, Delancey visited the
store and started arguing with the store manager about the em-
ployees’ pay being incorrect. Morace was notified of this by
phone and he came down to the store and spoke with Delancey.

1 To the extent that this organization purports to act on behalf of
employees, if it is not a labor organization then it would not be subject
to the 8(b) provisions of the Act. On the other hand, it would also not
be afforded the protections given to labor organizations under the Nor-
ris-LaGuardia Act or the exemptions in the antitrust laws.
Her testimony was that Morace claimed that he was in compli-
ance with the law and that she was wrong. Delancey testified
that she insisted that Morace was incorrect and that he said he
would check it out later. His testimony was that she insisted
that he was not paying the correct amount and that she threat-
ened to shut down the store. Morace testified that this batch of
checks did not reflect the change because his payroll company
hadn’t made the change yet. He testified that he told Delancey
that on Monday, the employees would be made whole for any
difference in pay, but that Delaney still kept arguing. In fact,
the employees were paid the difference.
Although there are minor differences in this account, the two
versions are essentially the same. By the way, Delancey admits
that she threatened to shut down the store. In either version,
Jesse Scott played no role other than being one of the people
who got paychecks with the wrong amounts and observed the
altercation between Delaney and Morace.
At the end of January 2016, Scott was accused by Store
Manager Otero of stealing a soda. After contacting Delancey,
they visited the store on the following day and confronted
Otero about the accusation. After some discussion, Morace
came in and Delancey asked why Scott had been taken off the
schedule. Morace essentially refused to respond and asked her
to leave the premises. She refused. After some more give and
take, Morace called the police and after getting both sides of
the story, they told Delancey that she had to leave. Delancey
agrees that the police mentioned the word trespass.
After this transaction, Scott resumed working on his normal
schedule. Morace testified that he didn’t do anything about the
“stolen soda” as he felt the whole matter was too trivial to war-
rant any kind of discipline.
On Friday, February 12, 2016, the paychecks were brought
to the store and Scott discovered that his check was missing.
This apparently was not the only time that this had happened to
other employees. And in this respect, the payroll company had
notified Morace that when this does happen, he should first
contact them before paying cash so that they can investigate
and if necessary, stop payment on the missing check.
In any event, when the shift ended at around 1 a.m., Scott in-
sisted that Otero pay him in cash and he refused to leave or turn
in the day’s receipts until he was paid. Otero said he could not
do that without Morace’s permission and Scott still insisted on
being paid. By both accounts, Scott and Otero got into a loud
argument. Otero then contacted the police and they arrived.
After some discussion, in which Scott still refused to leave or
turn in his receipts, Otero contacted Morace at home and was
told to pay Scott in cash and to tell him not to return to work.
At this point, Otero gave Scott his wages in cash. Scott then
turned over the receipts and Otero told him that he was fired.
During the following week, Delancey led a silent demonstra-
tion that took place on the premises of the store. This lasted for
a short time.
About a week later, Scott visited the store and spoke to
Otero. He asked for his job back and states that Otero told him
that he had been given several chances in the past and that he
would not rehire Scott because he had brought Delancey into
the store.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. ANALYSIS
The complaint alleges that the Respondent discharged Scott
on February 12, 2016, because of his union and concerted ac-
tivities.
Firstly, I doubt that the Charging Party can be defined as a
labor organization. And even if it could be, there is no evidence
that it sought to organize the Respondent’s employees for the
purpose of collective bargaining. Neither Scott, nor any other
employees, were ever asked to sign any kind of form authoriz-
ing the Charging Party to represent them or to bargain on their
behalf. I simply do not think that Scott was involved in union
activity; albeit it might be argued that he was engaged in con-
certed activity as defined by Section 7 of the Act.
In my opinion, the only plausible concerted activity, vis-a-
vis, this employer was the time that Scott and other employees
were present when Delancey got into an argument with Morace
about the increase in the minimum wage law. And in this re-
gard, I don’t see Scott as being particularly involved beyond
being present. Moreover, this was basically much ado about
nothing inasmuch as the Company promptly complied with the
minimum wage law and almost immediately paid its employees
the difference.
The incident involving the alleged stolen soda was not con-
certed activity because Scott’s protest, with the assistance of
Delancey, was only about himself. Moreover, the employer
essentially disregarded this incident and from what I can see, it
had nothing to do with Scott’s discharge.
To the extent that Scott may have participated in demonstra-
tions at other companies in New York State, this had nothing to
do with the Respondent and I can’t imagine that this could have
been a reason for his discharge.
In my opinion, the only reason for Scott’s discharge was the
argument that he had with Otero when his paycheck was miss-
ing on February 12, 2016. As noted above, when his paycheck
wasn’t there, Scott understandably was annoyed. Scott then
refused to turn over the receipts he received that evening and he
refused to leave the premises until he was paid in cash. The
testimony of both Otero and Scott shows that this was a heated
argument that took place at one in the morning and that the
police were called to calm things down. After Otero called
Morace, the latter told Otero to pay him in cash. At this point,
Otero paid Scott and told him that he couldn’t return to work.
The General Counsel and the Charging Party argue that the
true reason for Scott’s discharge was revealed about a week
later when he asked Otero to rehire him. Nevertheless, Otero
credibly denied Scott’s version of this conversation.2 And in
my opinion, it is totally implausible, given the events on Febru-
ary 12, that the Company would have decided to discharge
Scott because of his involvement with the Charging Party or
because he happened to witness an argument about minimum
wages back in December of 2015.
I therefore shall recommend that the complaint be dismissed.
Dated at Washington, D.C. August 18, 2016

2 Even if Otero did say that he was refusing to rehire Scott because
Scott brought Delancey into the store, this would have referred to the
demonstration that she led in the store’s premises during the week after
Scott had been discharged. It therefore cannot be asserted that this
event had anything to do with Scott’s discharge.