Parkview Lounge LLC d/b/a Ascent Lounge

National Labor Relations Board - Board Decisions

Apr 26, 2018

366 NLRB No. 71 (N.L.R.B. 2018)

366 NLRB No. 71
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.
Parkview Lounge, LLC d/b/a Ascent Lounge and Su-
sann Davis. Case 02–CA–178531
April 26, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
The issue presented in this case is whether the Re-
spondent violated Section 8(a)(1) of the National Labor
Relations Act by discharging the Charging Party, Susann
Davis, in response to her engaging in protected concerted
activity when she vocally discussed workplace concerns
at a staff meeting. The administrative law judge found
that the Respondent unlawfully terminated Davis for
voicing group complaints about employee wages, bene-
fits, and working conditions. We affirm the judge’s find-
ings for the reasons discussed below.1
I.
The Respondent is a limited liability company engaged
in the sale of alcoholic beverages and food in New York,
New York. Susann Davis began employment with the
Respondent in June of 2015 and worked as a cocktail
server. Davis was generally considered to be very good
at her job, with only one documented incidence of disci-
pline: a written warning on November 3, 2015, for pay-
ing insufficient attention to the customers at some of her
tables. The general manager who issued the warning,
Geoffrey Daley, conceded that Davis’ table service im-
proved after she received the warning.
At times, Davis had a contentious relationship with
some members of the Respondent’s management team.
Davis and a fellow employee, Elizabeth Pinzon, had pre-
viously spoken with other employees about their con-
cerns over the heavy-handed management approach of
their assistant manager, Jonathan Torres. On December

1 On September 22, 2017, Administrative Law Judge Michael A.
Rosas issued the attached decision. The Respondent filed exceptions
and a supporting brief, the General Counsel filed an answering brief,
and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard 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 Board has considered the decision and the record in light of the
exceptions and briefs and has decided to affirm the judge’s rulings,
findings, and conclusions and to adopt the recommended Order.
3, Davis ignored instructions given to her by Torres, be-
cause she believed that they conflicted with instructions
given to her by Daley. Torres took her off the lounge
floor, and Davis emailed the Respondent’s operating
owner, Brian Packin, to express her concerns. As Davis
clocked out, she purportedly said that she “wished
[Torres] death.” The Respondent was aware that other
employees also had a problem with Torres’ management
style, and he was soon thereafter moved to another facili-
ty owned by the Respondent. Davis was never disci-
plined for this incident.
Instead, the circumstances that led to Davis’ termina-
tion occurred in late January of 2016.2 On January 15,
Davis received permission from Daley to take a 10 to 15-
minute break during a party event. While on her break,
Floor Manager Natlya Aksentyeva entered the break
room and chastised Davis for using her phone during the
break rather than eating. Davis replied that she could do
as she wished during her break.
On January 22, Packin held a meeting with Davis, Da-
ley, and Aksentyeva to discuss the January 15 event. At
the meeting, Packin stated that he knew Davis had con-
cerns with the way managers had spoken to employees in
the past, and he did not want her concerns to “bleed out
to other staff members of the team” or have them “hear-
ing about it because that doesn’t make you look good or
us look good.” Instead, he advised Davis to “handle
things internally.” However, the Respondent subse-
quently praised Davis’ work performance during the
meeting. Packin assured Davis that Aksentyeva had
spoken highly of her in the past, saying, “I feel like I
have a great team tonight. I’ve got Susann [Davis] on
the team” and that Aksentyeva felt comfortable pairing
employees with Davis to have her train them. Finally,
Packin assured Davis during the meeting that her job was
not at stake. Aksentyeva ended the meeting by telling
Davis, “You are doing a great job on the floor . . . .”
Five days after this meeting, on January 27, Daley and
Manager Ray Quiñones held an all-staff meeting with the
Respondent’s employees. At the meeting, Davis vocally
raised a number of concerns affecting employees at the
Respondent’s facility. Davis voiced concerns about the
Respondent’s oncall scheduling system, failure to pro-
vide certain workplace benefits, recent decrease in pay
rate during parties, and the uncomfortable working con-
ditions and uniforms imposed on servers. Other servers
at the meeting nodded their heads in approval as Davis
voiced the various work issues. Quiñones told the as-
sembled employees that he would relay all of these con-

2 All dates hereinafter refer to 2016, unless otherwise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
cerns to Packin. Daley subsequently told Packin about
the comments Davis made during the staff meeting.
Later that day, Davis met with Daley to voice her con-
cerns over why her hours had been reduced the previous
week. She documented the meeting in a followup email,
which she sent to Daley on January 28. Daley forwarded
the email to Packin, and informed Packin that Davis
wanted to speak with him. When they next spoke, 2 days
after the January 27 staff meeting, Packin informed Da-
vis that she was terminated.
II.
Applying the Board’s Wright Line analysis, the judge
found that the Respondent violated Section 8(a)(1) by
terminating Davis in response to her protected concerted
activity during the January 27 staff meeting. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S.
393, 399–403 (1983). In support of that showing, the
judge determined that Davis engaged in protected con-
certed activity by voicing group concerns at the January
27 meeting, that the Respondent knew of such activity,
and that the Respondent held animus towards such activi-
ty. Consolidated Bus Transit, Inc., 350 NLRB 1064,
1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009). The
judge found that the Respondent’s proffered reason for
termination, Davis’ difficulty getting along with man-
agement, was pretextual. Accordingly, the judge con-
cluded that the Respondent was unable to prove that it
would have terminated Davis in the absence of her pro-
tected concerted activity. See, e.g., Coastal Sunbelt Pro-
duce, 362 NLRB No. 126, slip op. at 2 (2015). In its
exceptions, the Respondent argues that the General
Counsel failed to prove that the Respondent had
knowledge of or animus towards Davis’ protected con-
certed activity.
III.
We agree with the judge that the Respondent violated
Section 8(a)(1) by terminating Davis in response to her
raising group workplace concerns during the January 27
staff meeting. To support his initial burden under Wright
Line, “the General Counsel must prove by a preponder-
ance of the evidence that union animus was a substantial
or motivating factor in the adverse employment action.”
Consolidated Bus Transit, Inc., 350 NLRB at 1065. The
elements commonly required to support such a showing
are protected concerted activity by the employee, em-
ployer knowledge of that activity, and animus on the part
of the employer. Id.
Here, it is uncontested that Davis was engaged in pro-
tected concerted activity when she voiced a number of
group workplace concerns during the January 27 staff
meeting, which were met by nods of approval from the
assembled employees. Next, we adopt the judge’s find-
ing that Packin had knowledge of Davis’ protected con-
certed activity when he made the decision to terminate
her. Davis’ manager, Daley, had attended the staff meet-
ing, and had briefed Packin about Davis’ comments
made during the meeting just 2 days before Packin de-
cided to discharge her.
Further, we adopt the judge’s finding that the Re-
spondent held animus towards Davis’ speaking out at the
January 27 meeting. First, the judge was correct to de-
termine that the suspicious timing of the discharge, just 2
days after Davis engaged in protected concerted activity,
was evidence of animus. McClendon Electrical Services,
340 NLRB 613, 613 & fn. 6 (2003) (finding discharge
that occurred a day after protected concerted activity
supported a finding of unlawful motivation); Mira-Pak,
Inc., 147 NLRB 1075, 1081 (1964), enfd. 354 F.2d 525
(5th Cir. 1965) (finding termination unlawful where dis-
charge occurred 2 days after protected concerted activi-
ty). Second, as the judge found, the Respondent’s prof-
fered reason for terminating Davis, her inability to work
with management, was pretextual. The judge credited
Davis’ testimony that Packin did not inform her during
the January 29 meeting that she was being terminated for
any service or performance issues. The judge discredited
Packin’s contrary testimony. Further, although the Re-
spondent listed performance issues as a reason for termi-
nation in its official report to the New York State De-
partment of Labor, we note that just a week before her
termination, Packin and Aksentyeva praised Davis’ work
performance, and Packin assured Davis during that meet-
ing that her job was not at stake. These inconsistent and
shifting reasons for discipline support the judge’s finding
that the Respondent’s proffered reason for the termina-
tion was pretextual. See GATX Logistics, Inc., 323
NLRB 328, 335 (1997) (“Where . . . an employer pro-
vides inconsistent or shifting reasons for its actions, a
reasonable inference can be drawn that the reasons prof-
fered are mere pretexts designed to mask an unlawful
motive.”), enfd. 165 F.3d 32 (7th Cir. 1998) (un-
published table decision), and published in full 160 F.3d
353 (7th Cir. 1998); Lucky Cab Co., 360 NLRB 271,
274–275 (2014) (noting that “improbable” and “implau-
sible” reasons offered by the employer, as well as shift-
ing explanations, supported the judge’s findings that em-
ployer’s reasons for discharge were pretextual).3

3 On exception, the Respondent argues that it terminated Davis be-
cause her conduct, including the January 28 email, evidenced her ina-
bility and unwillingness to work with management. In adopting the
judge’s finding that the Respondent violated Sec. 8(a)(1) by terminating
PARKVIEW LOUNGE, LLC D/B/A ASCENT LOUNGE 3
Because we adopt the judge’s determination that the
Respondent’s proffered reason for terminating Davis was
pretextual, we find it unnecessary to proceed to the sec-
ond step of the Wright Line analysis, which is only appli-
cable in mixed-motive cases. K-Air Corp., 360 NLRB
143, 144 (2014); Rood Trucking Co., 342 NLRB 895,
898 (2004). Accordingly, we affirm the judge’s finding
that the Respondent violated Section 8(a)(1) of the Act
by discharging Davis for engaging in protected concerted
activity.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Parkview Lounge, LCC,
d/b/a Ascent Lounge, New York, New York, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.
Dated, Washington, D.C. April 26, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Zachary E. Herlands, Esq., for the General Counsel.
Ariadne Panagopoulou, Esq. (Paradalis & Nohavica, LLP), for
the Respondent.
Siobhan Klassen, Esq. (Law Office of Andrea Paparella,
PLLC), for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in New York, New York, on August 1–2, 2017. Su-
sann Davis, a former employee of Parkview Lounge LLC d/b/a

Davis, we do not hold that an employer is generally precluded from
discharging an employee for such conduct. Instead, we agree with the
judge that in this instance, the record supports the conclusion that Da-
vis’ purported inability to work with management was not the true
reason for her discharge.
4 We do not rely on the judge’s finding that Davis’ December 3,
2015 conduct, in which she “wished death” upon Torres, was protected
concerted activity under Atlantic Steel Co., 245 NLRB 814, 816 (1979).
Ascent Lounge (Parkview) alleges that Parkview violated Sec-
tion 8(a)(1) of the National Labor Relations Act1 by terminating
her on January 29, 2016,2 because she complained about her
wages, benefits, scheduling, uniforms, footwear, schedules,
transit benefits and management’s treatment of employees.
Parkview concedes that Davis engaged in protected activity
under the Act, but denies that such activity was in concert with,
or on behalf of, other employees. Moreover, Parkview denies
that Davis was terminated because of her protected conduct and
attributes the discharge to her persistently abusive behavior
towards management and others.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Charging Party, and Parkview, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Parkview, a New York limited liability company, is engaged
in the retail sale of alcoholic beverages and food at the Time
Warner Center in Columbus Circle, New York, New York,
where it annually derives gross revenues in excess of $500,000
from sales or performances of services, and purchases and re-
ceives goods valued in excess of $5000 from entities outside
the State of New York. Parkview admits, and I find, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Parkview’s Operations
Parkview, owned and operated by City Nights Hospitality, is
a restaurant/lounge in the Time Warner Center at Columbus
Circle in New York, New York. At its facility, which opened
in June 2015, Parkview employs approximately 15 cocktail
servers, as well as bartenders and bus boys. In addition to serv-
ing guests during business hours, Parkview holds private events
and parties at which cocktail servers are scheduled to work in
addition to regular shifts.
Brian Packin is the operating owner of Parkview, as well as
48 Lounge, another City Nights Hospitality owned establish-
ment. At the relevant times, Parkview’s cocktail servers were
supervised by General Manager Geoffrey Daley, Assistant
Manager Jonathan Torres, Floor Manager Natlya Aksentyeva
and, on occasion, Ray Quiñones, 48 Lounge’s manager.
Susann Davis was hired by Packin in June as a cocktail serv-
er. Davis was paid at the applicable minimum wage rate for
service workers—$5 per hour plus tips during 2015 and $7.50
plus tips in 2016. She was also paid at an hourly rate of $50
per hour during private events; this hourly rate was lowered to
$40 per hour in early 2016.
B. Davis’ Positive Relationship with Management Early On
Early on, Davis’ relationship with Parkview management
was a positive one. Packin was approachable and amenable to

1 29 U.S.C. §§ 151–169.
2 All dates are from June 2015 to May 2016 unless otherwise indi-
cated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
listening and addressing employee concerns.3 During her em-
ployment by Parkview, Davis communicated on several occa-
sions with Packin, Daley and other managers. With the excep-
tion of one written warning on November 4, supervisors and
management considered her to be very good at her job.4 Not
surprisingly, on October 2, Davis emailed Packin seeking a
larger role in the operation:
Thank you for giving me the opportunity in being a part of the
Parkview team and family as I like to call it. I truly enjoy
working with my colleagues and respect the integral role I and
everyone play in improving the Park View brand. I hope in
the near future I will have the opportunity to sit with you and
discuss the possibility of taking on a more integral role in
shifting the brand to new heights. I have little experience in
event planning but would love to advance in that field if such
an opportunity should arise . . . However, I’m happy to take
on a more administrative or operational role since most of my
experience lies there. Thanks in advance and I look forward
to meeting with you. Have a great day.
Packin responded the following day, thanked Davis for
reaching out, expressed interest in discussing other opportuni-
ties and looked forward to meeting the following week. Davis
responded by thanking Packin.5
C. Davis Discusses Work Issues with Coworkers
and Supervisors
At or around the same time that she expressed interest in a
broader role at Parkview, Davis and another cocktail server,
Elizabeth Pinzon, began discussing wages, hours, benefits, and
other conditions of employment with coworkers Rachel Greene
and Kristy Pradez. These discussions took place during and
after shifts in the serving areas and employee locker rooms. An
initial concern was the cold room temperature in Parkview.
They also discussed other concerns, including the short skirt
uniforms and uncomfortable heels worn by the cocktail servers,
receiving no pay for time required to be on-call for work, and a
decrease in the party/event hourly wage rate from $50 to $40
per hour. In addition to concern over the reduction of the party
work hourly rate, Davis and Pinzon also took issue with
Parkview’s refusal to pay that rate for the time it took to set-up
and clean-up for private or party events. Davis also spoke with
coworkers about having Parkview provide employees with
healthcare benefits and facilitate state-subsidized mass transit
incentives. Finally, Davis and Pinzon also spoke to coworkers
about what they perceived as Torres’ heavy handed manage-
ment approach.6

3 I received, but did not give any weight to, evidence that Packin
helped out another employee, Katia Lopes, in March 2017 with a $1000
loan for her brother’s surgery. Such postdated evidence is irrelevant.
(R. Exh. 11; Tr. 329–333.) Nevertheless, it is not disputed that Packin
was approachable and generally fostered good relationships with
Parkview’s employees.
4 Daley, Torres, and Packin all respected Davis’ abilities. (Tr. 30,
147, 196; R. Exh. 4.)
5 GC Exh. 7.
6 I base this finding on the credible and undisputed testimony of
Davis and Pinzon. (Tr. 20–25, 101-105, 114–117, 123, 127–128, 140.)
D. Davis’ Relationship with Supervisors and Coworkers
Torres, initially hired as a server’s assistant before being
promoted to assistant manager, had problems with several serv-
ers, including Davis. Due to his managerial style and resent-
ment to his elevation, including doubts about his qualifications,
Torres moved over to 48 Lounge by December. Davis’ first
documented encounter with Torres occurred on October 22,
when he noticed drinks on the server stand. As Davis and Ra-
chel Green stood next to the stand talking, Torres asked what
was going on. Davis responded in a nasty manner.7 On anoth-
er occasion, Davis was spending too much time at one table and
Torres tapped her on the shoulder to let her know that there
were other tables in need of attention.8
Davis’ penchant for focusing on certain tables eventually led
to disciplinary action. Initially, Davis had a good social and
working relationship with Daley and, at various times in 2015,
she shared her concerns about the cold air temperature, party
pay, and servers’ uniforms.9 The social aspect of their relation-
ship diminished after Daley issued a written warning to Davis
for talking excessively to customers at one table on November
3, while neglecting customers at other tables in her section. He
also noted that this had been going on “over time.” Davis was
instructed to refrain from such conduct or face a possible sus-
pension. Thereafter, Davis’s table service improved.10
In the meantime, Torres’ relationship with Davis continued
to deteriorate. In his sales report to Packin for November 18,
Torres stated that “the servers did a great job of selling food
tonight.” He also included comments about the performance of
several servers, all positive, except for Davis: “[Susanne’s]
relationship with many of the workers is slowly deteriorating.
If she doesn’t like someone she definitely lets it show when she
is communicating with them.”11
On December 3, Davis ignored an instruction by Torres that
she considered contradictory to one given by Daley. In re-
sponse, Torres removed Davis from the floor. Davis became
angry and emailed Packin with a request to meet to discuss her
concerns:
If you don’t mind, I would like to meet with you and discuss

7 R. Exh. 4.
8 I have no doubt that Davis resented being ordered around by
Torres, a former busboy. However, Torres corroborated Davis’ testi-
mony, as well as that of Pinzon, a very credible witness still employed
by Parkview, that Padez, Greene, and Pinzon also had problems with
his managerial style and he sought guidance from Packin. Indeed,
management “knew there were going to be issues with [Torres] being a
busser straight to supervisor.” (Tr. 23, 128, 280–283, 296–299.)
9 Daley and Torres confirmed, and Pinzon corroborated, Davis’ tes-
timony about these complaints. (Tr. 147–148, 193, 198, 290–291.)
10 Daley was less than credible on this issue, initially confirming that
Davis’ table service improved, then denying it and, after being con-
fronted with his prior sworn statement, conceding that she took better
care of her tables after receiving the warning. (Tr. 194–196; GC Exh.
3.)
11 With the exception of his negative relationship with Davis, I do
not credit Torres’ unsupported hearsay conclusions that her relationship
with “many of the workers” was deteriorating. (R. Exh. 5.) The only
coworker called to testify, Pinzon, certainly did not confirm that asser-
tion.
PARKVIEW LOUNGE, LLC D/B/A ASCENT LOUNGE 5
my concerns as a server. I am not suppose to leave work feel-
ing disgust toward management and then be expected to have
a huge smile on my face for service the next day. Especially
when change seems impossible. My particular concern is
with Jonathan who seems to think that his title demand re-
spect. I have no issues with him being my manager if he is a
competent one. He’s egotistical and makes very poor deci-
sions when it comes to protecting your brand.
I am not the only one to have lashed out on him in front of
other coworkers and I won’t be the last if he continues to be-
little everyone’s position.
I also can’t imagine him saving the company any money or
the employees having a chance to make good tips if he keeps
3 servers on the floor at 12 am when we close at 2 and then
take up to 2 hours to close out each server.
If I’m to continue, this email would go on forever. I’d rather
discuss with you in person as I wish to work in a relatively
productive and peaceful environment which will allow us to
utilize our sales experience without losing our spirits and help
to build the brand you aspire to be. Please let me know a time
that’s convenient for you. Cheers, Susann12
Packin responded less than 2 hours later, stating that he un-
derstood Davis’ frustration, had a “game plan in place to im-
prove all around,” appreciated her “concern and dedication” to
Parkview and was willing to meet with her to discuss the issues
in order to “ensure our best chance to succeed in a happy and
healthy working condition.”13
Several hours later, Torres provided Packin with his version
of the incident. Torres proceeded to detail Davis’ outburst when
he asked about one of her orders. He recounted that she told
him to mind his own business, stop micromanaging her and
screw himself. When he approached her later, he said Davis
became irate, yelled at him and criticized his refusal to help out.
As Davis clocked out, she “wished [Torres] death.” He con-
cluded the email with the following remark:
She has whispered in too many peoples ears and influenced
how some of them behave. She has been very aggressive with
other staff. She is a strong server, but she refuses to do things to
help us grow and better the brand.14
Davis also did not always see eye to eye with Matija Rajak,
the lead bartender. On several occasions, she responded rudely
or simply ignored Rajak whenever he commented on the way
she was garnishing or pouring drinks. At no time, however, did
Rajak request supervisory intervention in dealing with Davis.
Moreover, Rajak’s issues with the servers were not limited to
Davis. On November 9, he emailed Packin complaining that
Davis and other servers were not collecting checks within a
reasonable period of time and, as a result, customers were go-
ing to the bar to pay their tabs. Rajak suggested that servers
“should be checking the tables more often and pay more atten-

12 GC Exh. 4.
13 GC Exh. 8.
14 It is evident that Torres sent the email after Packin informed him
about Davis’ email complaining about the incident the night before. In
any event, Davis was not disciplined and Torres was reassigned to 48
Lounge shortly thereafter. (R. Exh. 6; Tr. 256, 304.)
tion the customers.”15
E. The January 22 Meeting
On January 15, Daley granted Davis’ request to take a break
during a party event. A short time later, Aksentyeva entered
the break room and chastised Davis for using her cellular tele-
phone instead of having something to eat. Davis replied that
she could do as she wished during her break. On January 18,
Aksentyeva informed Packin that she “had a conflict with Da-
vis on [January 15], when she decided to take a 10–15 minute
[break] in the middle of the event. I will deal with that and talk
to her just want to keep you informed.” Packin replied shortly
thereafter, noting that Daley already informed him about the
incident and “mentioned [Davis] was unruly and out of line. I
would like to chat with you and see if a sit down with her will
help or not far gone. Hoping she can be rehabilitated.”16
On January 22, Davis met with Packin, Daley, and
Aksentyeva to discuss the January 15th incident. Packin
opened with a remark that he had hoped having “John” work
less with Davis would alleviate the situation. He explained that
staff needed to get along and supervisors needed “to feel they
can manage you, give you constructive criticism and try and
make the situation better. Packin said he wanted to handle
things “internally” instead of hearing from Davis or staff
through emails.
Davis gave her side of the story, explaining that Aksentyeva
confronted her during a break about the fact that she was on her
cell phone instead of eating food. After Davis told Aksentyeva
that Daley approved her break, Aksentyeva went to get Daley.
Packin responded that breaks are not usually authorized during
parties. He also noted that, while Aksentyeva was a new man-
ager and her role was evolving, he had not received complaints
from other workers about her. Packin commented that “there is
a lot of combativeness going on and this is something that
[J]ohn said as well in fact and I don’t know is it hard for you to
take direction?” Davis’ response indicated a willingness to take
direction depending on what it entailed:
Absolutely not. If I’m spoken to in a certain way, I don’t dis-
respect anyone and the only reason why I reacted that way
was because of the way [Aksentyeva] spoke to me and we’re
all adults and I don’t think . . . I spoke to Geoff later on and
apologized because I do respect Geoff as a manager I think
he’s doing an amazing job but I did say to Geoff as well, I
said I’m still not going to take any crap from anybody be-
cause they think they’re in a position.”
Packin responded that several managers indicated they found

15 The General Counsel moved to strike undisputed Rajak’s testimo-
ny because an email confirming the tab collection problem was not
produced previously pursuant to subpoena. I deferred a ruling until
after briefing. (R. Exh. 9; Tr. 213–216, 395–402.) The motion is de-
nied in part. The General Counsel was given an opportunity to recall
Rajak, but declined. (Tr.401–402.) On the other hand, Rajak’s testi-
mony that he emailed Packin about other work problems presented by
Davis is stricken. (Tr. 224–226.) Parkview’s selective and untimely
production of R. Exh. 9 warrant an inference that there were no other
reports, emails or complaints about Davis. See Teamsters Local 776
(Pennsylvania Supply), 313 NLRB 1148, 1154 (1994).
16 R. Exh. 2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
it difficult to give Davis constructive criticism. He added that
Aksentyeva had always had good things to say about Davis,
including assigning new servers to work alongside her. After a
brief exchange about the incident, Davis expressed her belief
that she was speaking out on behalf of other employees:
But that was the only thing that has ever happened between
me and [Aksentyeva] except for the fact that I’ve personally
not just me but apparently I’m the only one in this company
amongst the servers rather that speaks their mind and when-
ever I speak my mind I’m condemned for it and feel a bit un-
fair we all talked about things we don’t liked together but
when it is actually time to discuss it nobody says anything so
maybe that’s the reason why you’re not hearing anyone say-
ing.
Packin acknowledged Davis’ concerns, sought to assure her
that she could express her concerns when things were not going
well, and asked if she said some things that were inappropriate.
Davis denied saying that everyone hated Packin, but rather, that
“everyone thinks the same.” Packin asked Davis to elaborate.
She responded with a long explanation of Aksentyeva’s treat-
ment of servers:
Which is the way she delivers the message to the . . . we feel
we are being patronized the way we’re spoken to in a conde-
scending way and we’re all adults and even before I start a
shift for example there was umm . . . [Aksentyeva] came back
I think it was maybe 2 days afterwards and she asked to sit
with me and didn’t go well the after the 2nd time and I think it
was a bad idea because I already assumed there was going to
be a meeting between us to discuss it and this was before my
shift and there’s a possibility that it would not have gone well
and now I have to go back on the floor in a not so good mood
to deal with the clients and I just think that was a bad decision
on her part she knows I disagreed with the way she ap-
proached me and then she disagreed with the way I respond-
ed.
Packin again acknowledged Aksentyeva’s awareness of Da-
vis’ excellent customer service, but expressed the need for them
to “grow from this experience” and “be able to operate well out
there together,” adding “I don’t think anyone is saying your job
you know is at stake here, her’s isn’t, yours isn’t. If these things
keep happening and happening and happening, I mean obvious-
ly you wouldn’t want to work here and wouldn’t be able to
operate a business . . .”
Aksentyeva then gave her perspective, characterizing the in-
cident as a misunderstanding and expressed her desire to have a
normal working relationship with Davis. Davis acknowledged
the need to respect each other, but insisted that Aksentyeva and
Torres, as managers, sometimes spoke to the servers in a man-
ner that was not respectful.
Packin responded that there were service situations which
needed improvement, including Davis’ tendency to focus on
one table to the detriment of other tables. Davis replied that she
had good communication and coordinated coverage of tables
with Daley, with whom she usually worked. Packin replied
that he expected Davis and Aksentyeva to work out their differ-
ences away from other employees and customers, and encour-
aged more sit-down meetings as needed. He opined that Davis
was a “strong personality” who wanted “things done a certain
way too . . . I don’t expect for you guys to be life long pals but
if she’s going to be out on the floor I need to operate a business
a certain way if it is not clicking with what you are doing I’m
happy to sit down and talk about it. I’m sure you want to do the
best job you can.
Aksentyeva concluded the meeting by apologizing to Davis.
She stated that she never intended to disrespect Davis and re-
spected her as a server: “You are doing a great job on the floor
but I want you and I will tell it to everyone. . . . .”17
F. Davis Complains About Scheduling Changes
On January 25, Davis emailed Daley with concerns about
changes in her work schedule that resulted after the January 22
meeting:
After our meeting with Brian and Aksentyeva on January 22,
2016, I received my schedule and noticed the significant dif-
ference in the amount of days I usually get scheduled for. Be-
ing one of or if not, the most senior cocktail server there, I’m
concerned as to why my days have been reduced. I looked at
the schedule and noticed that there were other servers sched-
uled for 4 and 5 days. Servers not more senior than I. As a
matter of fact, I was given the same amount of days as the
most junior employees. My track record as a server at PVL in
regards to hospitality and sales is of high standards therefore, I
am a bit confused. During the holidays, I’ve put in a lot of
hours at PVL and now that the season is over, there’s a drastic
change.
Daley responded the following day, initially denying that the
meeting had anything to do with Davis’ scheduling, but went
on to say that he needed “to see changes and improvement in
your service. We can talk more in detail on your next sched-
uled shift.” Davis replied shortly thereafter, insisting she “had
no idea that there was an issue with my service to Parkview
clients and my work ethics as you’ve never asked to sit with me
and talk about it. Your decision to cut my shifts without com-
municating this to me is unfair and affects my financial liveli-
hood. I look forward to meeting with you to discuss this issue.”
Daley replied vaguely that he “made the schedule as I do every
week to accommodate the needs of the business as well as add-
ing additional staff into the schedule as well. I am in every day
this week to discuss.”18
G. The January 27th Staff Meeting
On January 27, Daley and Quiñones met with Parkview’s
staff and answered questions. Davis raised several concerns,
which she recorded:
. . . I have a few questions that has nothing to do with how
you ah we work as a team. It’s more . . . incentive. . . one of
the things is “on call” we’re not getting paid for it but yet

17 Aksentyeva, although still in Parkview’s employ, was not called
as a witness. (GC Exh. 9 and 9(a).) Packin exhibited a selective
memory about what he said to Davis during the January 22nd meeting,
but conceded that he no intention of discharging Davis at this meeting.
(Tr. 380.)
18 GC Exh. 5.
PARKVIEW LOUNGE, LLC D/B/A ASCENT LOUNGE 7
we’re being required to call in to um so we pretty much waste
our days. So is there anything that you guys as a management
team can talk about and maybe correct the mistake on your
part . . . basically?
The other part is there’s a metro card incentive . . . where the
state passed that the company will use a write off for their
taxes if we get that, we get part of our metro card paid for, and
also with medical, I just want to bring this to your attention
cause I think as a team we should be able to get the benefits
that companies offer.
Um and then um actually, one towards drinks to the bar . . .
whenever we put an order in . . . let’s say if for example
you’ve got table 72 . . . and we’ve got like 15 ppl we put in 15
drinks now we’re getting drinks that are made . . . for exam-
ple, we order a vodka soda and then we order . . . Jamaican . .
. mojito that sort of thing so we then order scotch on the rock
we get those things first . . . made first and then they go and
make the drinks that are specialty cocktails meanwhile those
drinks are sitting, melting. So I think that’s one of the issues
that should be brought to their attention.
. . . And the last is . . . there anything that you guys can do to
make us more comfortable as servers being that it’s always so
. . . freezing cold in here and I understand that you have to ac-
commodate your guests but even your guest complain about
how cold it is in here especially the females. So is there any-
thing that you guys can do to accommodate your guests and
us . . . if you can’t turn down the cold air . . . is there a possi-
bility for us to wear a sweater because not only do we have to
be . . . work 8 hours in heels, but we also have to deal with the
cold while its cold outside. And I think that’s a bit unfair to
your employees. That’s all I’ve got.19
Quiñones replied that he would report “everything” men-
tioned by employees at the meeting to Packin and “get back to
you.” A few minutes later, Davis asked Quiñones about private
party pay, when it started and ended, including cleanup after
parties. He replied that party pay reverted to the regular hourly
wage rate when a party ended.20
After Davis’ shift on January 27, she met with Daley to dis-
cuss why her hours had been reduced. The following morning,
Davis documented the meeting in an email to Daley:
After my shift last night we had a meeting and discussed your
reason behind reducing my shifts. You mentioned:
—You’ve asked me time and time again not to use the Serv-
ers Assistant as my personal butlers. That I’m constantly ask-
ing them to bring my tables water when I can easily do it my-

19 Davis and Pinzon each testified credibly that other servers at the
staff meeting nodded their heads in approval as Davis spoke of the
various work issues. (Tr. 39, 104–105.) Rajak’s testimony corroborat-
ed a portion of their contention: “And then she complained on our
behalf, I heard her for the first time about the MetroCards. That was
the first time that I heard it.” (Tr. 221.)
20 The recording confirms Pinzon’s testimony that Quiñones’ re-
sponses were curtailed. However, I did not credit her speculation that
neither she nor others spoke up because of Quiñones’ disposition or
because Davis was the only one “strong enough” to do so. (GC Exh. 2
and 2(a); Tr. 104–105, 115, 134.)
self.
—Because I wasn’t paying attention to my table, they walked
out on the tab (happened 2 weeks ago)
—I spoke poorly to Adderley (Servers Asst), Rachel (Cocktail
Waitress) and Jonathan (Asst. Manager/Servers Asst)
—That I’m looking for another job
—I’m difficult to speak to
In order for me to use the Servers Asst. as my personal butler,
they would have to help me with things that affect my person
such as cleaning my apartment, doing my laundry, etc. Ask-
ing them to assist me at work (such as bringing water to my
tables) is a part of their responsibilities so therefore your
comment was irresponsible and an unfair one to make.
In this particular situation when the table walked out, I imme-
diately reported to you that the bill was dropped and when I
went back to retrieve payment which was shortly after, the
customers had left leaving only $6 in the receipt book. It’s
unfortunate that they left without paying but the burden of re-
sponsibility is unfairly placed on me.
As for disagreements between my coworkers and I, we were
never called into a meeting to discuss a resolution to the prob-
lems. So speaking to Adderley about his lack of help on the
floor when we need it (which the servers complained to man-
agement about), asking Rachel not to burden me with her per-
sonal problems while I’m at work and not tolerating Jona-
than’s abusive work tactics (which management tried to rem-
edy by putting him to work at 48 lounge for most of his shifts
as many other employees complained about him as well) is
something I feel the right to defend myself from.
As for me looking for another job, it is my right to do so. This
was discussed with you because I asked you to no longer put
me on the private events as our hourly rates were significantly
lowered reducing our chances of making a fair amount of
money as we normally would on the busy nights the events
were held. You even voiced your disagreement to Brian
when you were told that this decision would be taken.
Again, before reducing my shifts, you did not even allow me
the decency to communicate that you had issues with me. I
feel you’re personally holding a vendetta against me because I
speak my mind on issues that affect us (the employees) and
because of this, you’ve unfairly interfered with my financial
stability.
I’ve worked for this company from the beginning and man-
agement has always suggested an open line of communication
in order for a smoother work environment but when we do,
we’re deemed troublemakers. You mentioned to me that I’m
difficult to speak to yet we’ve always managed to communi-
cate. You’ve not once had a problem speaking to me or me
taking directions from you. However, since my last meeting
that involved you, me, Aksentyeva and Brian, there’s been a
shift. And while you’ll contest this argument, it shows in the
decisions you made soon after. Such as reducing my days
and even the hours during my shifts and no conscious or fac-
tual effort to the reasons you did so.
I’m disappointed in the way you’re treating me as an employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ee. It’s unfair and unjust way to say thank you to the ones that
have always worked their hardest to help build your brand.21
H. Parkview’s Decision to Terminate Davis
Daley informed Packin about the comments by Davis and
other servers at the January 27 meeting relating to room tem-
perature, their uniforms, party pay and healthcare benefits. He
also informed Packin that he and Quiñones “offered a direct
response to all the staff that were there at the time.” (Emphasis
supplied).22 He also forwarded the January 27th email from
Davis following the meeting in which she complained about a
reduction in her scheduled work hours.23
Nothing happened until Daley informed Packin that Davis
wanted to speak with him. Daley also mentioned that Davis
complained about her reduced work schedule. That complaint
was the proverbial straw that broke the camel’s back and, on
January 29, Packin informed Davis that she was terminated
because she did not get along with management.24
Legal Analysis
I. APPLICABILITY OF WRIGHT-LINE TEST TO THE ALLEGATIONS
Susann Davis alleges that Parkview unlawfully terminated
her employment because she complained about the terms and
conditions of her employment, including wages, benefits, uni-
forms, footwear, schedules, transit benefits, and management’s
treatment of employees. Parkview argues that Davis’ discharge
resulted from her inability to work well with coworkers and
management.
Section 8(a)(1) of the Act considers it an unfair labor prac-
tice for an employer “to interfere with, restrain, or coerce em-

21 This email was the only evidence of management mentioning to
Davis about how she spoke to other servers. (GC Exh. 6.) Aside from
a reference to her interaction with Torres, the email mentioned only that
Davis asked Green not to burden her with her personal problems at
work and spoke to Adderley about the need to help the servers on the
floor. Neither of those employees testified.
22 Daley conceded that he told Packin what Davis said at the meet-
ing. (Tr. 193–194, 197–198.) Packin, who remained in the hearing
room while Daley testified, had only a vague recollection of what was
reported to him. (Tr. 363–364, 372.)
23 The testimony by Packin and Daley regarding their conversation
in which Packin decided to terminate was inconsistent and not credible.
Packin referred to incidents that Davis had with Daley after the January
22nd meeting, but there is no credible evidence of anything other than
her comments and email on January 27. (Tr. 358–364, 380–381.)
Daley, on the other hand, testified that he recommended Davis be ter-
minated based on service, attitude toward management, the lack of a
productive work environment, and the incident with Aksentyeva, The
credible evidence suggests, however, that it was Davis’ grievance over
her reduced work hours, as well as the common group concerns on
January 27, that spurred his recommendation—and even then only
because Packin requested it. (Tr. 193–194, 201–202.)
24 I credit Davis’ testimony that Packin never mentioned that her
customer service was a reason for her termination. (Tr. 40, 362–363.)
Packin, on the other hand, was vague and evasive when asked if Davis’
service was a factor. Moreover, in his sworn affidavit statement, Packin
failed to mention anything about Davis’ service. (Tr. 378–379.) Lastly,
in his prior sworn statement, Packin referenced an email by Daley that
mentioned Davis’ service issues. However, such an email was not
produced. (Tr. 381–382.)
ployees in the exercise of the rights guaranteed in Section 7” of
the Act. 29 U.S.C. § 158. The section 7 rights guarantee em-
ployees “the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or mutual aid
or protection.” 29 U.S.C. §157.
In determining whether Davis was unlawfully discharged be-
cause she engaged in protected activity, the Board applies the
test established in Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393, 399–403 (1983). The General Counsel must initially
show the employee’s protected activity was a motivating factor
in the decision to terminate. See Coastal Sunbelt Produce, Inc.
& Mayra L. Sagastume, 362 NLRB No. 126, slip op. at 1
(2015). Establishing unlawful motivation requires proof that:
“(1) the employee engaged in protected activity; (2) the em-
ployer was aware of the activity; and (3) the animus toward the
activity was a substantial or motivating reason for the employ-
er’s action.” Consolidated Bus Transit, Inc., 350 NLRB 1064,
1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009).
If the General Counsel prevails, the burden shifts to
Parkview prove that it would have terminated Davis even in the
absence of her protected concerted activity. 251 NLRB at
1089; Manno Electric, 321 NLRB 278, 281 (1996). An em-
ployer may not, however, prove this affirmative defense where
the proffered reasons for discharge are merely pretextual. Met-
ropolitan Transportation Services, 351 NLRB 657, 659 (2007);
Brink’s, Inc., 360 NLRB 1206, 1217 (2014) (noting that there is
no need to perform the second part of the Wright Line analysis
if the reasons for discharge are pretextual).
II. DAVIS ENGAGED IN PROTECTED CONCERTED ACTIVITY
Protected concerted activity was first defined by the Board as
one which is “engaged in with or on the authority of other em-
ployees, and not solely by and on behalf of the employee him-
self.” Meyers Industries, 268 NLRB 493 (1983) (Meyers I),
cert. denied 474 U.S. 948 (1985), supplemented 281 NLRB 882
(1986) (Meyers II), cert. denied 487 U.S. 1205 (1988). The
Board later broadened the scope of the definition to include
“circumstances where individual employees seek to initiate or
to induce or to prepare for group action, as well as individual
employees bringing truly group complaints to the attention of
management. Meyers Industries, 281 NLRB 882, 887 (1986).
Davis engaged in protected concerted activity over the
course of her employment with Parkview because she discussed
with her coworkers issues related to the terms and conditions of
their employment. She spoke up during a staff meeting called
by management on January 27 and asked about workplace con-
ditions and employment incentives. Davis, by her actions,
essentially brought her group’s complaints to management’s
attention. See Kingman Regional Medical Center, 363 NLRB
No. 145, slip op. at 17 (2016) (protected concerted activity
must be concerted and done so for mutual aid and protection).
A. The Activity was Concerted
Inquiry into whether the employee engaged in concerted ac-
PARKVIEW LOUNGE, LLC D/B/A ASCENT LOUNGE 9
tivity is determined on the basis of the totality of circumstances,
363 NLRB No. 145 at 17 (2016) (citing National Specialties
Installations, 344 NLRB 191, 196 (2005)). The idea of group
action, however, does not have to be explicitly stated when the
employees communicate, and discussions among coworkers
suffice to find group action. See Relco Locomotives, Inc., 358
NLRB 298, 314 (2012); See Whittaker Corp., 289 NLRB 933,
934 (1988) (noting that especially in the context of a group
meeting, a concerted objective can be inferred from the circum-
stances). Davis engaged in concerted activity by apprising
management about the cocktail servers’ complaints relating to
working conditions and benefits. She and Pinzon talked to
Green and Pradez about wages, hours, and benefits, as well as
other conditions of employment. Cocktail servers often also
discussed the cold temperature in the workplace, and Davis and
Pinzon raised concerns over the decrease in the party pay-rate
from $50 to $40. Additionally, during the January 27 staff
meeting, in the presence of Daley and Quiñones, Davis raised
employee concerns regarding transit card incentives, health
benefits and cold room temperatures, as other servers nodded
their heads in approval.
Parkview contends that Davis did not engage in concerted
protected activity because her activities did not demonstrably
link to group action—in other words, she acted on behalf of
herself as a sole spokesperson. Parkview’s contention that
Davis acted individually, however, is neither supported by the
facts nor Board law. In Whittaker Corp., 289 NLRB 933, 934
(1988), the Board dealt with a similar situation in which an
employee brought matters, without discussing the matters with
coworkers, to a group meeting called by management to discuss
the suspension of annual wage increases. The Board found this
discussion to constitute concerted activity within the meaning
of the Act. See also NLRB v. Caval Tool Division., 262 F.3d
184, 190 (2d Cir. 2001) (affirming the Board’s conclusion that
an employee engaged in concerted activity when he raised the
issue of the company’s new break policy at an employee meet-
ing called by the employer). In addition, employees nodded
their heads in approval as she shared an array of employee con-
cerns at the January 27th staff meeting,
B. Davis Engaged in the Activity for the Purpose of Mutual Aid
or Protection
Davis’ grievances discussed with coworkers were “indispen-
sable initial steps” towards group action. 363 NLRB No. 145 at
18 (2016) (citing Hispanics United of Buffalo,
359 NLRB 368, 370 (2012) enfd. 734 F.3d 764 (8th Cir. 2013).
Even if the employees do not authorize another employee to act
as a spokesperson, the protection remains in place. 363 NLRB
No. 145, slip op. at 18 (2016) (citing NLRB v. City Disposal
Systems, 465 U.S. 822, 835 (1984)). Davis’s concerns relating
to wages, benefits, work attire and supervisors’ treatment of
employees, prior to and during the meeting sought to improve
the general conditions of employment for other employees. As
such, those concerns advanced the “mutual aid or protection” of
all of the cocktail servers even if, as Parkview argues, others
did not expressly share those concerns. See Fresh & Easy
Neighborhood Market, 361 NLRB 151, 154 (2014) (activity
was for the purpose of mutual aid or protection when “there is a
link between employee activity and matters concerning the
workplace or employees’ interests as employees”).
C. Davis’ Behavior Did Not Result in a Loss of Section
7 Protection
Parkview argues that even if Davis’ action was concerted,
her use of abusive language and aggressive behavior extin-
guished her Section 7 protection. Specifically, Parkview cites
Davis’ conversation with Torres and her frequent interruptions
during the January 27th meeting as the basis for a loss of pro-
tection. Davis’ behavior was, at times, disruptive—specifically
with respect to Torres. However, her actions do not strip her of
Section 7 protections. The Board has consistently used a 4-
factor test in determining whether communication between an
employee and a manager or supervisor in a workplace is so
derogatory that it causes the employee to lose protection of the
Act. Atlantic Steel Co., 245 NLRB 814, 816 (1979). The four
factors are: (1) the place of discussion; (2) the subject matter of
the discussion; (3) the nature of the outburst; and (4) whether
the outburst was provoked by the employer’s unfair labor prac-
tice. Id.
Regarding her incident with Torres, during which she wished
him death, she did so as she was clocking out of work, presum-
ably outside of the work area. This factor favors Davis, and
though abhorrent, it did not result in a disruption of the work-
place. Nor did it undermine management’s authority. Stanford
Hotel, 344 NLRB 558 (2005) (highlighting that the workplace
outburst occurred away from the normal working area in a
closed door meeting where no other employees were present,
and did not weaken management’s authority). Additionally,
even management was aware of the problems that other em-
ployees had with Torres’ supervisory style. Secondly, the sub-
stance of the discussion, while it did not relate to her protected
concerted activity, was nonetheless an expression of Davis’
concern about working conditions. Thus, this factor also
weighs in favor of Davis. Finally, the nature of the outburst
was short and occurred as Davis was clocking out. Even
though the outburst was not motivated by an unlawful labor
practice, the other factors tilt in favor of Davis and she there-
fore retains the protection of the Act.
III. PARKVIEW’S KNOWLEDGE OF DAVIS’ ACTIVITIES
It is undisputed that Parkview management was aware of
Davis’ complaints about room temperature, uniforms, wages
and supervisory treatment of employees, and responded to
those concerns on January 22 and 27, as well as other times.
Parkview contends, however, that Packin lacked knowledge of
the protected concerted activity because he was not at either
meeting. As to the concerns expressed by Davis in her emails
to Packin, Parkview argues that Davis voiced only individual
concerns.
Packin was generally aware of Davis’ activities as they relat-
ed to communications with several managers. See, e.g., Dobbs
International Services, 335 NLRB 972, 973 (2001); State Pla-
za, Inc., 347 NLRB 755, 756 (2006) (imputing knowledge of
the agent to the respondent, while giving the respondent an
opportunity to rebut that showing). It is also reasonable to
infer, especially given Parkview’s medium-sized workforce,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
that Davis’s discussions with coworkers were already known to
Packin. See T-Mobile USA, Inc., 365 NLRB No. 15, slip op. at
2 (2017) (citing Windsor Convalescent Center of North Long
Beach, 351 NLRB 975, 983 fn. 36 (2007), enfd. in relevant part
570 F.3d 354 (D.C. Cir. 2009) (knowledge of protected con-
certed activity can be established by reasonable inference). In
addition, Davis expressed her concerns about supervisory
treatment of servers directly to Packin at and before the January
22nd meeting. Finally, she raised a host of work-related issues,
including party pay, temperature, footwear, and benefits at the
January 27th meeting to Daley and Quiñones, who said they
would relay those concerns to Packin. Daley briefed Packin
after the meeting and let him know about Davis’ concerns.
IV. WHETHER THE DISCHARGE WAS MOTIVATED BY ANIMUS
Davis had a positive relationship with management early in
her tenure at Parkview. She later began to discuss workplace
issues with other workers. Her relationship with Torres, who
was promoted from busboy to an assistant manager, was rocky.
Other employees, however, also had difficulty with Torres’
supervisory style, which management was certainly aware of.
Davis received one disciplinary notice regarding her service of
tables, but her work performance improved. Her relationship
with the lead bartender was also strained, but aside from one
instance in which he complained about all of the servers, none
of that led to discipline.
Subsequently, Davis had an argument with Aksentyeva, the
floor manager, but that incident was resolved in a meeting on
January 22. At that meeting, in which Aksentyeva apologized,
Packin explained that he wanted to handle things internally and
not hear of things via email from Davis or the other staff mem-
bers. Davis expressed to the managers that she was speaking
on behalf of other employees, but was condemned whenever
she speaks her mind. At the end of the meeting, Davis was
assured that her employment was not in jeopardy and her cus-
tomer service excellence was acknowledged by Packin. At the
hearing, Packin also conceded that he did not plan on discharg-
ing Davis at the meeting. On January 25, Davis emailed Daley
about a change in her work schedule that occurred after the
January 22nd meeting. Daley responded that he needed to see a
change and improvement in her service, and that the reduction
in hours was unrelated to the schedule change. However, his
reply stood in stark contrast with managers’ remarks at the
January 22 meeting, when Davis’ service was commended.
On January 27, during a staff meeting, Davis raises group
concerns and also met afterwards with Daley to discuss the
schedule change. Daley relayed Davis’ comments from the
meeting to Packin and forwarded an email in which Davis de-
tailed the conversation she had with Daley after the staff meet-
ing. Daley informed Packin that Davis wished to speak with
him, and Packin informed her of her discharge, citing a failure
to get along with management.
The General Counsel has to establish that the protected activ-
ity was a “substantial or motivating factor” in the decision to
discharge Davis. Brink’s, Inc., 360 NLRB 1206, 1216 (2014).
Evidence of animus, however, can be inferred from the entirety
of the record, looking to circumstantial evidence and where
available, direct evidence. See, e.g., Frierson Bldg. Supply Co.,
328 NLRB 1023, 1023–1024 (1999). In Alternative Entertain-
ment, Inc, 363 NLRB No. 131 (2016), enfd. 858 F.3d 393 (6th
Cir. 2017), an employee engaged in protected concerted activi-
ty by discussing concerns about a change in the wage structure
with other coworkers. Management knew about his protected
activity, pulled him aside and asked that he refrain from dis-
cussing this issue with other workers. Shortly thereafter, the
discriminatee was fired. The Board observed that the timing of
the discharge, in the absence of direct evidence, provided
“strong circumstantial evidence” of not only knowledge of
continued engagement with a protected activity, but also of a
discriminatory motive. Id. The Board went on to note that a
vague pretextual explanation for discharge was “even stronger”
evidence that a discriminatory motive prompted the discharge.
Id. Among common indicators of animus are a showing of
“suspicious timing, false reasons given in defense, failure to
adequately investigate alleged misconduct, departures from past
practices, tolerance of behavior for which the employee was
allegedly fired, and disparate treatment of the discharged em-
ployee.” Relco Locomotives, Inc., 358 NLRB 298, 311 (2012).
In Davis’ case, the timing sheds serious doubt on whether
her failure to get along with management was a bona fide con-
sideration in the discharge decision. Parkview has not satisfac-
torily shown that Davis’ relationship with management—so
soon after the January 22 meeting where she was assured of job
safety—deteriorated to the extent that it merited discharge.
What stands out is Davis’ increased assertiveness in voicing
group concerns such as transit and health benefits during a staff
meeting. As such, it is evident the discharge was motivated by
her increased amount of protected activity, rather than a sudden
change in the relationship after the January 22 meeting. This
indicates that the reason offered by Parkview for Davis’ dis-
charge, namely, that she did not get along with management, is
pretextual, and therefore unlawfully motivated. This conclu-
sion negates the defense that Parkview would have terminated
Davis in the absence of her protected activity. See Coastal Sun-
belt Produce, 362 NLRB No. 126, slip op. at 2 (2015) (ruling
that the employer’s use of a pretextual reason defeats the em-
ployer’s affirmative defense that it would have discharged the
employee in the absence of union activity).
In addition to the suspicious timing, the proffered reason for
the discharge is weak. Parkview tolerated Davis’ slights to-
wards supervisors several months and continued to commend
her strong service until a week before her discharge. At that
time, there were absolutely no seeds planted in furtherance of a
discharge. To the contrary, it was Daley’s report of his conver-
sation and email exchange with Davis that led Packin to decide
to discharge her a day or two later because she complained
about scheduling. He alluded to the problem as difficulty in
scheduling Davis, but there was no evidence that she presented
any scheduling problems at any time after the January 22nd
meeting. The fact that there was no discernible late-breaking
scheduling problem establishes that he Packin terminated Davis
because of grievances she conveyed to Daley on January 28.
Parkview cites NLRB v. Starbucks Corp., 679 F.3d 70, 81
(2d. Cir. 2012), for the proposition that an employer may fire a
competent employee for cause where that employee fails to
abide by its employment policies. However, no such policies
PARKVIEW LOUNGE, LLC D/B/A ASCENT LOUNGE 11
were received in evidence.
Davis’ discharge was motivated by Parkview’s animus to-
wards her engagement in the protected concerted activity be-
cause Davis was terminated shortly after expressing, in agree-
ment with other employees, shared group concerns. Additional-
ly, the reasons offered for discharge were vague and warranted
an inference that the discharge was motivated by an animus
toward her protected activity.
Under the circumstances, Parkview violated Section 8(a)(1)
of the Act by unlawfully discharging Susann Davis because she
engaged in protected concerted activity by advocating employ-
ee concerns about wages, benefits, work clothing and supervi-
sors’ treatment of cocktail servers.
CONCLUSIONS OF LAW
1. The Respondent, Parkview Lounge LLC, d/b/a Ascent
Lounge, is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by
terminating Susann Davis because she engaged in concerted
protected activities.
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.
Specifically, having found that the Respondent unlawfully
discharged Susann Davis, we shall order the Respondent to
offer her full reinstatement to her former job or, if that job no
longer exists, to a substantially similar position, without preju-
dice to her seniority or any other rights or privilege previously
enjoyed, and to make her whole for any loss of earnings and
other benefits suffered as a result of his discharge. Backpay
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
In addition, we shall order the Respondent to compensate Su-
sann Davis for the adverse tax consequences, if any, of receiv-
ing a lump-sum backpay award, and to file with the Regional
Director for Region 2, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar years.
See AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
In accordance with the Board’s decision in King Scoopers,
Inc., 364 NLRB No. 93 (2016), the Respondent must also com-
pensate Susann Davis for her search-for-work and interim em-
ployment expenses regardless of whether those expenses ex-
ceed interim earnings. Search-for-work and interim employ-
ment expenses shall be calculated separately from taxable net
backpay, with interest at the rate prescribed in New Horizons,
supra, compounded daily as prescribed in Kentucky River Med-
ical Center, supra.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended25

25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
ORDER
The Respondent, Parkview Lounge LLC, d/b/a Ascent
Lounge, New York, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against employ-
ees for engaging in protected concerted activities.
(b) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Susann
Davis full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
(b) Make Susann Davis whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
her, in the manner set forth in the remedy section of this deci-
sion.
(c) Compensate Susann Davis for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and
file with the Regional Director for Region 2 within 21 days of
the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the ap-
propriate calendar years.
(d) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge of
Susann Davis, and within 3 days thereafter notify her in writing
that this has been done and that the discharge will not be used
against her in any way.
(e) 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.
(f) Within 14 days after service by the Region, post at its fa-
cility in New York, New York, copies of the attached notice
marked “Appendix.26 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. In addition to physical posting of
paper notices, the notices shall be distributed electronically,

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.
26 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 BOARD12
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 Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since January 29, 2016.
(g) Within 21 days after service by the Region, file with the
Regional Director for Region 2 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. September 22, 2017
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 discharge or otherwise discriminate against
any of you for engaging in protected concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Susann Davis full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Susann Davis whole for any loss of earnings
and other benefits resulting from her discharge, less any net
interim earnings, plus interest, plus reasonable search-for-work
and interim employment expenses.
WE WILL compensate Susann Davis for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay award, and
WE WILL file with the Regional Director for Region 2, within 21
days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
award to the appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge
of Susann Davis, and WE WILL, within 3 days thereafter, notify
her in writing that this has been done and that the discharge will
not be used against her in any way.
PARKVIEW LOUNGE, LLC, D/B/A ASCENT LOUNGE
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02–CA–178531 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.