Copper River Grill

National Labor Relations Board - Board Decisions

Feb 28, 2014

360 N.L.R.B. 459 (N.L.R.B. 2014)

COPPER RIVER OF BOILING SPRINGS, LLC 459
360 NLRB No. 60
Copper River of Boiling Springs, LLC and Autumn
Ballew and Katie Massey. Cases 10–CA–085934,
10–CA–087199, and 10–CA–088882
February 28, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND JOHNSON
On September 25, 2013, Administrative Law Judge
Keltner W. Locke issued the attached decision. The
Charging Parties filed exceptions and a supporting brief,
and the Respondent filed a cross-exception and brief in
opposition to the Charging Parties’ exceptions.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions,3
and to adopt the recommended Order as modified.4

1 In its opposition brief, the Respondent urges the Board to disre-
gard the Charging Parties’ exceptions, asserting a failure to comply
with Sec. 102.46(b)(1) of the Board’s Rules and Regulations. We
decline to do so. Although the Charging Parties’ exceptions do not
fully comply with the Board’s Rules, they are not so deficient as to
warrant striking, particularly in light of the Charging Parties’ pro se
status. See Budget Heating & Air Conditioning, 333 NLRB 199, 199
fn. 2 (2001).
2 The Charging Parties have implicitly excepted to some of the judg
e’s credibility findings. The Board’s established policy is not to over-
rule 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.
No exceptions were filed to the judge’s finding that the Respondent
violated Sec. 8(a)(1) when its manager asked an employee to keep him
informed about organizing efforts, and to his recommended dismissal
of the following amended consolidated complaint allegations: pars.
8(a)-(d); 9(a)-(c); 10(b), (c); 11(a), (b); 13(a)-(c).
Contrary to his colleagues, Chairman Pearce would reverse the
judge’s dismissal of the allegation that rule 4 of the Respondent’s em-
ployee handbook was unlawful. That rule prohibited “[i]nsubordination
to a manager or lack of respect and cooperation with fellow employees
or guests,” and stated that “[t]his includes displaying a negative attitude
that is disruptive to other staff or has a negative impact on guests.”
Chairman Pearce adheres to the view he expressed in his dissent in
Hyundai America Shipping Agency, 357 NLRB 860 (2011), that an
employee would reasonably interpret a “negative attitude” as one that is
critical of the employer, and that the rule would thereby reasonably
inhibit employees from discussing controversial topics, including terms
and conditions of employment. Further, he finds the rule here to be
even more overbroad than the similar one found lawful by the Hyundai
America majority, which threatened disciplinary action for “exhibiting
a negative attitude toward or losing interest in your work assignment.”
The majority there relied on the linkage of “negative attitude” to one’s
work assignment as proof of the rule’s lawful context. Rule 4, by con-
trast, contains no similar limitation.
Because the Respondent discharged employee Autumn Ballew, in
part, under rule 4, Chairman Pearce would analyze her discharge under
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Copper
River of Boiling Springs, LLC, Boiling Springs, South
Carolina, its officers, agents, successors, and assigns,
shall take the action set forth in the Order, as modified by
substituting the following for paragraph 2(a).
“(a) Within 14 days after service by the Region, post
at its facility in Boiling Springs, South Carolina, copies
of the attached notice marked “Appendix.”2 Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicu-
ous places, including all places where notices to employ-
ees are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electron-
ically, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. If the Respond-
ent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed
by the Respondent at any time since May 1, 2012.”
Jasper C. Brown, Jr., Esq., for the General Counsel.
Stephen F. Fisher, Esq. and Lee Daniels, Esq. (Wimberly, Law-
son, Daniels & Fisher, LLC), of Greenville, South Carolina,
for the Respondent.

The Continental Group, Inc., 357 NLRB 409 (2011), instead of Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), which the judge applied in dismissing the
discharge allegation. Applying Continental Group, however, the
Chairman would also dismiss this allegation. Even assuming Ballew’s
outburst was protected conduct or conduct that otherwise implicated
concerns underlying Sec. 7 of the Act, the Respondent established that
it validly discharged her for interfering with its operations.
3 Unlike our dissenting colleague, we do not find the Respondent’s
rule 4 materially distinguishable from the rule found lawful in Hyundai
America Shipping Agency, supra. Rule 4 specifically prohibits “dis-
playing a negative attitude that is disruptive to other staff or has a
negative impact on guests” (emphasis added). This language, like the
Hyundai America rule, limits the rule to unprotected conduct that
would interfere with the Respondent’s legitimate business concerns.
4 In accordance with the Respondent’s cross-exception, we shall
modify an inadvertent error in the judge’s recommended Order to re-
quire that the Respondent post the attached notice at the facility at
issue, in Boiling Springs, South Carolina, in conformance with the
judge’s findings and the Board’s standard remedial practice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD460
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. Because
credited evidence does not establish that Respondent
discharged two employees for union or protected concerted
activities, I conclude that Respondent did not engage in
unlawful discrimination. However, Respondent violated
Section 8(a)(1) of the Act when its supervisor asked an
employee to keep him informed about the union organizing
campaign.
Procedural History
This case began July 24, 2012, when Autumn Ballew, an
individual, filed an unfair labor practice charge against her
former employer, Copper River of Boiling Springs, LLC (the
Respondent), in Case 10–CA–085934. She amended that
charge on August 7 and 22 and November 13, 2012, and
January 17, 2013.
On September 7, 2012, Ballew filed another charge against
Respondent, in Case 10–CA–088882.
On August 14, 2012, another former employee, Katie
Massey, filed an unfair labor practice charge against
Respondent in Case 10–CA–087199. She amended that charge
on January 28, 2013.
On January 30, 2013, after investigation of the charges, the
Regional Director for Region 10 of the Board, acting on behalf
of the Board’s Acting General Counsel (the General Counsel or
the government), issued an order consolidating cases,
consolidated complaint, and notice of hearing. The Respondent
filed a timely answer.
On March 22, 2013, the Regional Director issued an
amended consolidated complaint and notice of hearing which,
for brevity, I will refer to as the “complaint.” The Respondent
filed a timely answer.
On April 22, 2013, a hearing opened before me in
Greenville, South Carolina. During the hearing, the General
Counsel amended the complaint by added certain allegations
and withdrawing others, which will be discussed below.
The parties presented evidence on April 22, 23, and 24,
2013, when the hearing closed. Thereafter, the parties filed
briefs, which I have considered.
Admitted Allegations
In its answers, the Respondent admitted some of the
allegations. Based on those admissions, I make the following
findings.
The charges and amended charges were filed and served as
alleged in complaint paragraph 1.
The General Counsel has proven the allegations raised in
complaint paragraphs 2, 3, 4, and 5. More specifically, I find
that at all material times, the Respondent has been a limited
liability company with an office and place of business in
Boiling Springs, South Carolina, and has been operating a
public restaurant selling food and beverages. It meets both the
statutory and discretionary standards for the exercise of the
Board’s jurisdiction and has been, at all material times, an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Based on Respondent’s admission of the allegations in
complaint paragraph 7, as amended at hearing, I find that at all
material times, the following individuals were Respondent’s
supervisors within the meaning of Section 2(11) and its agents
within the meaning of Section 2(13) of the Act:
Owner/Operator Joshua Walker; Manager Will Lawrence;
Manager Keith Means; and Vice President and Chief Operating
Officer Stephen Jackson.
During the hearing, the General Counsel moved to amend
complaint paragraph 7 to add the allegations that Chief
Executive Officer Angell and the Respondent’s human
resources director, J. Anthony Worthington, were supervisors
and agents of Respondent within the meaning of Section 2(11)
and 2(13) of the Act, respectively. Respondent did not oppose
the amendment. As to the supervisory and agency status of
these two persons, Respondent denied “any and all of the
conduct by them or at their direction.”
Respondent presented uncontradicted testimony that Angell
possessed sole authority to discharge and that he made the
decision to discharge Autumn Ballew and Katie Massey after a
careful and nonroutine examination of the facts. Such
testimony, which I credit, also proves that Angel was a
supervisor of Respondent, because Section 2(11) of the Act
defines “supervisor” to mean “any individual having authority,
in the interest of the employer, to . . . discharge . . . other
employees . . . if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.” See 29 U.S.C. §
152(11).
Although I find that Angell has been a supervisor of
Respondent at all material times, it is not necessary to resolve
whether Worthington also possessed sufficient 2(11) indicia to
warrant that conclusion. Uncontradicted evidence clearly
establishes that the human resources director was Respondent’s
agent within the meaning of Section 2(13) of the Act, and I so
find.
Respondent has admitted that, as alleged in complaint
paragraph 10(a), it has maintained in its employee handbook a
rule which prohibits “Insubordination to a manager or lack of
respect and cooperation with fellow employees or guests. This
includes displaying a negative attitude that is disruptive to other
staff or has a negative impact on guests.” I so find.
Respondent also has admitted that, as alleged in complaint
paragraph 10(c), it has maintained a rule prohibiting employees
from engaging in “Any other action or activity which the
Company believes represents an actual or potential threat to the
smooth operation, goodwill, or profitability of its business.” I
so find.
Complaint paragraph 13 alleges that Respondent discharged
employee Katie Massey on April 19, 2012, and discharged
employee Autumn Ballew on July 17, 2012. Based on the
Respondent’s admissions, I find that it discharged Massey on
April 19, 2012, as alleged, and discharged Ballew, but on July
16, 2012, rather than July 17, 2012.
Union Status Allegations
Complaint paragraph 6(a) alleges that the National Workers
Association is an organization in which employees participate
COPPER RIVER OF BOILING SPRINGS, LLC 461
and which exists for the purpose, in whole or in part, of dealing
with employees concerning grievances, labor disputes, and
terms and conditions of employment. Complaint paragraph
6(b) alleges that at all material times, the National Workers
Association has been a labor organization within the meaning
of Section 2(5) of the Act. The Respondent has denied these
allegations for lack of sufficient knowledge.
The record reveals very little about the “National Workers
Association.” No evidence clearly delineates its organizational
structure, its officers, or when it came into existence. Indeed,
credible evidence does not does not even establish that it exists
except for the name. However, a footnote in the General
Counsel’s posthearing brief states that on March 7, 2013, the
Regional Director for Region 10 issued a decision and direction
of election in Case 10–RC–098046, “finding, inter alia, that the
National Workers Association is a labor organization within the
meaning of Section 2(5) of the Act.” The Board has published
this Decision and Direction of Election on its website:
http://www.nlrb.gov/case/10RC098046.
Taking administrative notice of this decision, and based on
its findings, I conclude that the General Counsel has proven the
allegations raised in complaint paragraphs 6(a) and 6(b).
Therefore, I further conclude that the National Workers
Association is a labor organization within the meaning of
Section 2(5) of the Act.
The March 7, 2013 Decision and Direction of Election stated
that Kevin Ballew was the “chief representative” of the
National Workers Association (for brevity, the Union) and had
been for about 7 months. Therefore, it would appear that
Ballew assumed that position with the Union after the events
which the complaint alleges to be unfair labor practices.
According to a footnote in the General Counsel’s brief,
Kevin Ballew is not related to Autumn Ballew, one of the two
charging parties in this case, and her testimony described Kevin
Ballew as a “friend.” The record does not indicate they are kin.
Kevin Ballew did not take the witness stand in this proceeding,
but Autumn Ballew gave the following testimony regarding
how the Union started:
Q. At some point during 2012, did the employees try
to organize a union?
A. Yes, sir.
Q. And who were the leading employees who tried to
organize the Union?
A. Kevin Ballew, Katie Massey, and myself.
Q. Okay. And when did you all start on this union
campaign?
A. December or January 2012.
Q. December of 2011 and January 2012?
A. Correct.
Q. Okay. And what did you do regarding the Union?
Explain just what kind of activities did you engage in?
A. Well, we did a lot of research and we made flyers.
Q. A lot what?
A. A lot of research. We just did a lot of research and
we made flyers. We put flyers on the employees’ cars.
We talked to the employees about organizing and what the
Union could do for them. Told them what you know, ex-
actly what we were doing and if they agreed with it, we
would get them to sign a petition, a showing of interest.
Q. Umhmm. Did you distribute any flyers and the Un-
ion—and flyers about the Union?
A. We distributed informational flyers and flyers that
we would hold meetings for the employees to come to.
The General Counsel introduced some of the flyers into the
record. One of them urged employees to unionize but did not
specifically mention the name “National Workers Association.”
Another stated that “We will be having a meeting on May 21 at
6 p.m. at Kevin’s home to discuss our plans to support”
legislation pending in Congress which would raise the
minimum wage for tipped employees. This flyer does not
mention “National Workers Association” or use the word
“union.”
The General Counsel also introduced into evidence a petition
titled “DECLARATION OF WORKERS UNITY” (the “s” on
“workers” having been scratched out) which began by stating
that “WE THE EMPLOYEES OF COPPER RIVER GRILL”
wished to exercise their “right to bargain collectively.” It bore
the signatures of eight individuals, with dates ranging from “1–
3–12” to “7/1/12.”
The name “National Workers Association” does not appear
on this petition. From all the circumstances, it seems likely that
the Kevin Ballew, Autumn Ballew, and Katie Massey formed
the Union first and named it later. Needless to say, that
sequence of events would not diminish in any way the
protection afforded by Section 7 of the Act.
Withdrawn Allegations
Complaint paragraph 12(a) had alleged that at some time in
May 20, 2012, “Respondent’s employee Ballew,” presumably
referring to Autumn Ballew, had “engaged in concerted
activities with other employees for the purposes of mutual aid
and protection, by advocating to management on behalf of
another employee regarding the mistreatment that employee
was receiving.” Complaint paragraphs 12(b) and 12(c) had
alleged that because of this protected activity, Respondent had
suspended Ballew for the remainder of her shift. However, at
hearing, the General Counsel withdrew these allegations from
the complaint.
Because the allegations have been withdrawn, I will not
address them further or make any findings related to them.
Disputed Allegations
Complaint Paragraph 8(a)
Complaint paragraph 8(a) alleges that “about March 2012,”
Respondent, by Will Lawrence, threatened employees with
discharge because of their union activities. Respondent denied
this allegation.
For clarity, and to avoid confusion with other allegations, it
may be helpful to quote the General Counsel’s brief to identify
the specific conduct which complaint paragraph 8(a) describes.
The brief states, in part, as follows:
Massey testified that, in March, after she completed her
evening work shift, she went out into the parking lot where
she met with K. Ballew and A. Ballew. [Tr. 99, 100.] At that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD462
time, A. Ballew and K. Ballew were placing union flyers on
employee vehicles in the parking lot. [Tr. 100.] Supervisor
Lawrence came out to the parking lot and called Massey over
to his vehicle. A. Ballew followed Massey and was also
present during this discussion. [Tr. 101, 143,144.] When
Massey arrived at Lawrence’s vehicle, he asked what K.
Ballew was doing. [Tr. 100.] Massey told Lawrence that they
were distributing flyers and waiting on the other servers to
come out after they got off work. [Tr. 100.] Lawrence then
asked Massey, what they we doing? [Tr. 100.] She stated
again that they were passing out flyers and waiting on other
servers. [Tr. 100.] Lawrence then asked her, “Do you know
what Kevin is doing is illegal?” [Tr. 100.] Lawrence then
told Massey that being involved in this kind of activity could
affect her job. [Tr. 100.]
This quoted portion of the General Counsel’s brief does not
describe some predicate facts which place the events in quite a
different context. Although at one time Kevin Ballew had been
one of Respondent’s employees, he was not an employee in
March 2012. Rather, uncontroverted evidence establishes, and
I find, that Respondent had discharged him 2-1/2 years earlier,
on September 8, 2009, for theft.
Respondent had pressed criminal charges against Ballew, but
he agreed to pay, and did pay, $800 in restitution, resulting in
the charges being dropped. An agreement to pay this
restitution, and bearing what appears to be Kevin Ballew’s
signature, is in evidence.
Even though Kevin Ballew had been discharged for theft, he
returned to the restaurant as a customer and created a
disturbance. This incident occurred sometime around February
26, 2012, on an evening when Manager Will Lawrence was on
duty. Based on my observations of the witnesses, I conclude
that Lawrence’s testimony is trustworthy and I rely on it here.
As noted above, Kevin Ballew did not testify in this
proceeding.
On this occasion, a server reported to Lawrence that “a guy
was bothering them” while they were working in the silverware
rolling area. Lawrence discovered that the server was referring
to Kevin Ballew. Lawrence’s testimony, which I credit,
describes what happened next:
I, you know, I told him he can’t really bother the servers while
they’re working. And that was all I said; he flipped out on
me, started yelling at the top of his lungs and using profanity,
and I still had about 15 tables in the restaurant. And so at that
point when he started doing that, I asked him to leave, and he
continued to yell as he walked out of the restaurant. And
when he got into the parking lot, screeched tires out of the
parking lot. Basically, I mean, I think there were, you know, a
couple of families out there that were trying to get to their
cars, so that kind of was, you know, pretty scary that he was,
you know, rodding out like that. But he left after that, then
that was the end of him being there that night.
Lawrence reported the incident to higher management.
Respondent’s director of human resources, Anthony
Worthington, served Ballew with a “no trespass” letter dated
February 27, 2012. This letter stated as follows:
This Letter is to notify you that you are hereby placed on
TRESPASS NOTICE on any and all property owned by
Copper River of Boiling Springs, LLC located at 2104
Boiling Springs Rd., Boiling Springs, SC 29316.
If you fail to honor this notice and return to Copper River of
Boiling Springs, you will be charged with TRESPASSING
AFTER NOTICE (SC Code 1611600)[.]
Notwithstanding that he had been served with the “no
trespass” letter, Kevin Ballew came on Respondent’s property
again in March 2012. At this point, he had not been an
employee of Respondent for more than 2 years. Autumn
Ballew gave the following testimony concerning this incident:
Q. Okay. Explain for the Judge what happened. This
is March of 2012.
A. Okay. Kevin Ballew and myself were outside in
the parking lot, putting flyers on the employees’ cars.
Katie had just got off a shift and had joined us, and Will
came out of Copper River from his shift, from his a.m.
shift, and saw
Q. This is Will Lawrence?
A. Will Lawrence, yes.
Q. Yeah.
A. saw Kevin in the parking lot and asked him to
leave. And we, Katie and I, walked over to my car, and
then Will Lawrence pulled his car closer to us and called
Katie Massey over to the car, and I followed shortly be-
hind her. And when I came up in the conversation, Will
was asking what Kevin Ballew was doing. She told him
that we were passing out flyers to get better working con-
ditions. And he told us that we couldn’t be associated
with that and it was going to cost us our jobs.
Massey gave similar testimony:
And Will Lawrence got off work 10 to 15 minutes after I did.
He came out, got in his car, called me over to his car. I came
over there. He asked me what Kevin Ballew was doing. I
told him that flyers were being put on the other employees’
cars and we were, you know, waiting on other servers to come
out after they had gotten off work to answer their questions
and explain more to the ones who didn’t really have the full
understanding of it, what it was about and our intentions.
And Will asked me when he asked me what we were doing, I
said, “Passing out flyers, waiting on the other servers.”
And he said, like, “Do you know that what Kevin is doing is
illegal?”
And I said, “It’s not illegal. He is you know, he has the right
to do this.”
And Will stated that being involved in this kind of activity
could affect my job. As he pulled up some more, closer to
where the cars were parked, Autumn approached the car, and
Autumn was told the same thing, that doing this could hurt us
as employees there.
Lawrence did not recall any incident involving Kevin
Ballew, Autumn Ballew, and Katie Massey placing flyers on
cars. My observations of his demeanor while testifying lead me
COPPER RIVER OF BOILING SPRINGS, LLC 463
to conclude that Lawrence was a conscientious and reliable
witness. Moreover, had the incident described by Autumn
Ballew and Massey actually have taken place, it seems quite
likely that Lawrence would have remembered it, since it would
have been an occasion when Kevin Ballew violated the “no
trespass” letter.
Lawrence did describe an instance, which occurred
sometime after Kevin Ballew received the “no trespass” letter,
when Lawrence was leaving work and spotted Kevin Ballew on
the Respondent’s property, but Ballew was on the restaurant
patio rather than in the parking lot. Lawrence gave the
following testimony concerning this occasion:
Q. Do you recall or can you describe the first incident
on which you remember him returning?
A. The first incident that he returned I was leaving
from . . . we’d had inventory on Sunday night, and I was
leaving work to go to my car, and Kevin was out on the
patio with Autumn Ballew and Katie Massey and another
gentleman that I did not know. I didn’t say anything to
them. I walked back into the restaurant, told my own-
er/operator, Josh Walker, that, you know, Kevin was on
the patio and that he needed to call the, you know, you
need to call the cops. Josh picked up his phone, dialed
911, and, you know, about right after he called, he
squealed out of the parking lot.
Q. Who’s he?
A. Kevin, yes, sir.
Later in his testimony, Lawrence explicitly denied discussing
this incident with either Katie Massey or Autumn Ballew.
Further, he explicitly denied ever asking either of them “what
Kevin Ballew was up to” and also denied telling either Massey
or Autumn Ballew that union activities could affect their job.
My observations of the witnesses lead me to conclude that
Lawrence was telling the truth and that his testimony is more
reliable than that of Massey or Ballew. Therefore, crediting
Lawrence, I conclude that he did not make the statements
which Massey and Ballew attributed to him. Accordingly, I
further conclude that the government has not proven the
allegations raised in complaint paragraph 8(a).
However, even if I had credited Massey and Ballew, I would
conclude that the words they attributed to Lawrence did not
violate Section 8(a)(1) of the Act. As always, in evaluating
whether a statement by a supervisor or manager reasonably
would interfere with, restrain, or coerce employees in their
exercise of Section 7 rights, the words must be considered in
context, because the context necessarily affects how employees
reasonably would understand the words.
Lawrence credibly testified that at this time, he was unaware
of any effort to organize a union. That testimony is consistent
with the fact that the Regional Director did not issue a Decision
and Direction of Election until March 7, 2013, almost a year
later. There is no reason to believe that Lawrence would view
the presence of Kevin Ballew on the Respondent’s property as
having anything to do with a union organizing drive.
Lawrence would not have regarded Ballew as a union
organizer because he was unaware that Ballew had ever been
involved in such activity. (In this regard, Autumn Ballew’s
testimony, quoted above, indicates that she and Kevin Ballew
and Katie Massey decided to start a union sometime in
December 2011, more than 2 years after Kevin Ballew’s
employment with Respondent had ended.) Based on his
experience, Lawrence would have known that Ballew was a
former employee who had been discharged for stealing from
the company, who had avoided prosecution by paying back the
money he had stolen, and who had, more recently, created such
a noisy commotion at the restaurant that higher management
had served him with a “no trespass” letter warning that if he
returned he would be prosecuted.
A typical person with Lawrence’s knowledge of events
would not have looked at Kevin Ballew and thought “union
organizer” but instead would have been astonished and puzzled
by a temerity which, for want of a better word, might be called
sociopathic. Most people who had been caught stealing, and
fired for it, would be too ashamed to return to the scene of the
crime. Not Ballew. Most people who had been served with a
notice that they would be prosecuted if they trespassed would
take care to stay away. Not Ballew.
The essence of trespass is an entering or presence on
property without permission. If Respondent’s employees
participated with Kevin Ballew in any activity on Respondent’s
property—any activity at all, whether playing cards, dancing
the two-step, or just laughing at a joke—their participation
could create the impression that Ballew had at least tacit
permission to be there. Potentially, it could undermine the
Respondent’s ability to enforce the “no trespass” letter.
Respondent had a legitimate interest in making sure that its
employees did not act in a manner which would not undermine
its legal ability to exclude trespassers. Moreover, no antiunion
motivation entered into Respondent’s decision to send Kevin
Ballew a letter forbidding his presence on its property. That
decision resulted from Ballew’s previous noisy disturbance in
the dining room, which had nothing at all to do with organizing
a union or with employees’ protected, concerted activities.
This context would have affected how employees reasonably
would have understood the words attributed to Lawrence. Even
in the testimony offered by Massey and Autumn Ballew, and
relied upon by the General Counsel, Lawrence did not refer to
union activity but merely stated that what Kevin Ballew is
doing was illegal, which was a statement of fact. Kevin
Ballew’s presence on the property, after having been served
with the “no trespass” letter, was a crime in progress.
According to Massey and Autumn Ballew, Lawrence
added—after remarking that Kevin Ballew was acting
illegally—either that “we couldn’t be associated with that and it
was going to cost us our jobs” (Autumn Ballew’s testimony) or
“being involved in this kind of activity could affect my job”
(Massey’s testimony). The message communicated by such
statements depends on the meaning imputed to the vague
phrases “with that” and “this kind of activity.” Considering that
Lawrence had just stated that Kevin Ballew was breaking the
law, the words “with that” and “this kind of activity”
reasonably would be understood to refer to the unlawful
trespass, not to protected activity.
A restaurant owner which has issued a “no trespass” letter to
exclude a rowdy customer properly expects its staff not to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD464
engage in conduct which appears to condone a breach of that
letter. It may require its staff to tell that customer to leave the
premises. Likewise it may forbid its employees from engaging
in activities on company property which might act as a waiver
of the prohibition or create the appearance that the trespasser
was now welcome. Therefore, even if Lawrence had made the
statements attributed to him, such statements reasonably would
have been understood as referring to the unlawful trespass and
not to protected activities.
However, as stated earlier, based on my observations of the
witnesses’ demeanor while testifying, I credit Lawrence rather
than Massey and Ballew, and therefore find that he did not
make the statements they attributed to him. I recommend that
the Board dismiss the unfair labor practice allegations related to
Section 8(a) of the complaint.
Complaint Paragraphs 8(b) and 9(a) and (d)
Complaint paragraph 8(b), like paragraph 8(a), alleges that
Respondent, by Will Lawrence, threatened employees with
discharge for their union activities in about March 2012.
Because the language in the complaint does not provide details
which would distinguish the two allegations, clarity will be
served by quoting again from the government’s brief.
Massey testified about a second conversation with Lawrence,
which took place in March or April in the kitchen of the
restaurant. (Tr. 101, 102.)
A. Ballew was also present during this discussion
about the Union. [Tr. 101, 102.] Massey testified that as
they stood near the pizza bar in the kitchen looking toward
the restaurant dining area, Lawrence asked her about K.
Ballew’ s intentions and what he was trying to do. [Tr.
102.] Massey told Lawrence that K. Ballew was trying to
get better working conditions and to inform the workers of
their rights. [Tr. 102.] Lawrence then asked her if she had
signed the petition that was being circulated. [Tr. 102.]
She said yes; he then rolled his eyes in derision. [Tr. 102.]
Massey told Lawrence that K. Ballew’s intentions with the
Union were good. [Tr. 102.] Massey stated that Lawrence
again threatened her by stating that “this” could affect her
job, especially if it got back to corporate or Own-
er/Operator Walker. [Tr. 102.]
A. Ballew also testified about this discussion in the
kitchen with Massey and Lawrence. [Tr. 144, 145.] A.
Ballew recalled that the discussion took place in March in-
side the kitchen. [Tr. 144, 145.] She testified that Law-
rence again asked what K. Ballew was doing. [Tr. 145.]
She told Lawrence that there was a petition going around
to organize a union. [Tr. 145.] A. Ballew testified that,
during this discussion, Lawrence asked the two employees
if they had signed the petition and they both said yes. [Tr.
145.] According to A. Ballew, Lawrence stated that it was
illegal to solicit for a petition around the restaurant, and
that it could look bad on them down the road to be associ-
ated with that. [Tr. 145.] Lawrence also said that it could
cost them their jobs. [Tr. 146.]
The conduct described in the portion of the General
Counsel’s brief quoted above includes not only the threat
alleged in complaint paragraph 8(a) but also an instance of
interrogation alleged in complaint paragraph 9(a), which states
that Respondent, by Will Lawrence, on “several occasions in
about March 2012, at the Employer’s facility, interrogated its
employees about their union activities and the union activities
of other employees.”
Therefore, I will consider both allegations here.
Massey testified that sometime during March or April 2012,
while standing near the pizza bar at Respondent’s restaurant,
she had a conversation with Manager Lawrence. According to
Massey, Lawrence asked her “what were Kevin’s intentions and
what was he trying to do,” to which she replied that “Kevin’s
intentions were good, that we were trying to get better working
conditions and inform other servers of their rights, other
employees of their rights.” From the context, I infer that
“Kevin” referred to Kevin Ballew. Massey further testified as
follows:
And Will asked me, Will Lawrence asked me if I had signed
the petition. I responded that, yes, I did. He kind of—he like
rolled his eyes at me. And I told him that what Kevin was
doing was not anything bad, that it was good. It was going to
make things better, the working conditions better there, and
that it had nothing to do with any kind of like revenge towards
like anybody. It wasn’t about trying to harm anybody or
anything. It was his intentions were you know, the intentions
with the Union were good intentions.
Q. BY MR. BROWN: So what, if anything did he say
anything else in response?
A. He said again that this could affect my job, espe-
cially if it got back to corporate or Walker.
Autumn Ballew gave similar testimony concerning a
conversation in March 2012 which involved Massey, Manager
Lawrence, and herself. She testified that Lawrence asked them
what Kevin Ballew was doing and that they told him that the
petition was to organize. “And he told us that it was going to
look bad on us down the road and that it could cost us our job
and that it was illegal to solicit a petition in the restaurant.”
Ballew further testified that Lawrence asked both of them
whether they had signed the petition.
According to Massey, Lawrence’s questioning of her was not
limited to this one instance described above. Massey testified
that “every few days” and at least once a week during the
period of March and April 2012, Lawrence would ask her
“what exactly was going on, what we intended to do with this,
why we were trying to do this, and he would I would tell him,
you know, every time that I would explain to him that we were
just trying to get better working conditions.”
In his testimony, Lawrence specifically and unequivocally
denied making the statements which Massey and Ballew
attributed to him. Based on my observations of the witnesses
when they testified, I conclude that Lawrence’s testimony is
more reliable than that of Massey or Ballew, which I do not
credit.
Accordingly, I find that the Government has not proven the
allegations raised in complaint paragraphs 8(b). Therefore, I
recommend that the Board dismiss the unfair labor practice
allegations predicated on paragraph 8(b).
COPPER RIVER OF BOILING SPRINGS, LLC 465
Because I do not credit Massey’s testimony, it also does not
prove the allegations raised in complaint paragraph 9(a).
However, the language of paragraph 9(a) refers to more than
one event. (It begins, “On several occasions in about March
2012.”) To establish these allegations, the General Counsel
also elicited testimony from another employee, Victoria
Ballard, concerning a different conversation.
Before discussing that evidence, one other matter should be
noted to prevent confusion. After the General Counsel
examined Ballard, he decided that her testimony described not
just the interrogation alleged in complaint paragraph 9(a) but
also a separate 8(a)(1) violation not alleged in the complaint.
Therefore, he amended the complaint to add a new paragraph
9(d), which states as follows: “On or about the latter part of
April or early part of May 2012, supervisor Will Lawrence
instructed an employee to report on the union activities of other
employees.”
The Respondent denied this allegation. It has also raised the
defense that the allegation is time barred under Section 10(b) of
the Act. As already noted, the General Counsel relied on the
testimony of employee Victoria Ballard both to prove the
allegations in both complaint paragraphs 9(a) and 9(d). At the
time she took the witness stand, Ballard was working at
Respondent’s restaurant as a server. She testified that in late
April or early May 2012, she had a conversation with Manager
Lawrence in the office adjoining the kitchen at Respondent’s
restaurant. No one else was present.
Ballard’s testimony does not establish why Ballard was
speaking with Lawrence or how the meeting had begun. Thus,
it not entirely clear whether Lawrence called Ballard into the
office or whether she had approached him. (However, her
testimony that only the two of them were present because
Lawrence “just asked to keep it private” certainly would be
consistent with a conclusion that Lawrence initiated the
meeting.) Ballard further testified as follows:
Q. By MR. BROWN: All right. What did Mr. Lawrence
say to you?
A. Well, at first he was kind of hesitant, but he started
to say, “Is everything okay?” And he goes on to ask me,
did I sign the paper?
And I acknowledged what he was talking about, and I
was like, “Yes, I did sign that paper.” And I was like, “I
don’t understand why you’re so worried about it,” you
know.
And then he goes, “Well, just keep that between us and
if anything else happens or you have any more infor-
mation,” just come and tell him.
And that’s what I did. Besides, I talked to John about
it, but that’s the only person.
Q. Okay. And that was the end of the conversation?
A. Yes, sir.
Lawrence denied that he asked Ballard whether she had
signed anything. As discussed earlier in this decision, my
observations of the witnesses lead me to place confidence in the
reliability of his testimony.
Additionally, although I certainly believe that Ballard was
scrupulous in trying to provide accurate testimony, I have some
concerns about her recollection of the events she described.
For example, she testified that she thought her meeting with
Lawrence took place “around the end of April, beginning of
May” 2012,” but she also testified that she believed (but was
not certain) that the meeting occurred before Katie Massey’s
termination. Respondent discharged Massey on April 19, 2012,
so if Ballard’s meeting with Lawrence indeed had been before
that event, it could not have taken place “around the end of
April, beginning of May.”
Ballard’s testimony came about a year after the event she
described, so it is not surprising that there might be some
uncertainty as to the date. In these circumstances, an error as to
date would not necessarily signify that the rest of her testimony
was doubtful. However, I am more concerned about the rather
vague nature of her testimony, which does not give a clear
sense of what actually was said.
For example, Ballard’s testimony does not reveal how the
meeting started or how the subject of the union campaign arose.
There may have been some other purpose for the meeting, in
which case the topic might have arisen incidentally. On the
other hand, Lawrence might have called Ballard into office
solely for the purpose of questioning her about the union
organizing drive. These circumstances, considered together
with others, affect whether the alleged interrogation was
sufficiently coercive to violate Section 8(a)(1) of the Act. See,
e.g., Rossmore House, 269 NLRB 1176 (1984), affd. sub nom.
Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985). However, Ballard’s testimony sheds no light.
If Lawrence had indeed asked Ballard about the union
organizing drive or the circulation of the petition, he would
have had to ask a question specific enough to communicate to
Ballard the subject of the conversation. However, the words
which Ballard attributed to Lawrence—” Is everything
okay?”—would not have sufficed.
Ballard testified that, at first, Lawrence “was kind of
hesitant” before asking “Is everything okay?” However, it
would be too great a leap simply to infer that Lawrence was
about to raise the subject of the union organizing campaign but
was reluctant to do so. For example, Lawrence might have
observed Ballard’s work as a server and have had concerns
about her pregnancy’s effect on that work or vice versa.
(Ballard’s testimony placed this meeting with Lawrence in
roughly the same time period as her baby shower.) Lawrence
might have been just as reticent about raising a pregnancy-
related issue as about asking a question concerning a union
campaign.
(It should be stressed that I am not here suggesting that
Lawrence asked “is everything okay” to inquire about Ballard’s
ability to work. Such conjecture would be quite speculative, to
say the least. My point simply is that neither the hesitancy nor
the words which Ballard attributed to Lawrence would have
informed her that the subject he wanted to discuss was the
union organizing drive. If he raised this subject, he necessarily
would have used more direct and unambiguous language, yet
Ballard’s testimony gives no clue as to what this language
might have been. This vagueness causes some concern about
the reliability of Ballard’s recollection, particularly considering
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD466
that a year had elapsed between the conversation and the
testimony.)
Rather than quoting the words Lawrence spoke, Ballard’s
testimony had more the flavor of being about the conversation
in general. For example, the following sentence did not allay
my concern that, after a year, the testimony did not reflect a
recollection of the actual words so much as the witness’
reconstruction of what she thought must have been said: “And I
acknowledged what he was talking about, and I was like, ‘Yes,
I did sign that paper.’”
The actual language used is important because not every
reference to union or protected activity violates the Act. Only
those statements of an employer which interfere with, restrain,
or coerce employees in the exercise of Section 7 rights violate
Section 8(a)(1). Here, complaint paragraph 9(a) alleges an
unlawful interrogation. Under Rossmore House, above. the
Board determines whether a supervisor’s question is unlawful
by considering whether, under all the circumstances, the
question reasonably tended to restrain, coerce, or interfere with
those rights. See Donaldson Bros. Ready Mix, Inc., 341 NLRB
958 (2004); Mediplex of Danbury, 314 NLRB 470, 472 (1994).
Based on my observations of the witnesses and my concerns
about the generality of Ballard’s testimony, I conclude that
Lawrence’s testimony is more reliable. Crediting his denial, I
find that he did not ask Ballard whether she had signed the
petition.
However, Lawrence did not deny that he and Ballard had
discussed the union organizing drive, and he did not deny
telling Ballard “if anything else happens or you have any more
information” to tell him. In this instance, Ballard’s testimony
did quote specific words, which Lawrence did not specifically
deny. Crediting that testimony, I find that Lawrence did ask her
to tell him if anything else happened or if she had any more
information concerning the unionization effort.
Although asking an employee about union activity which
already has taken place clearly constitutes interrogation, the
lawfulness of which is evaluated under the Rossmore House
line of precedents. Asking an employee to report back in the
future about union activity which has not yet happened
interferes with the exercise of Section 7 rights in a different
way. Paragraph 9(d) does not allege an unlawful interrogation
but rather an instruction to report on the union activities of
other employees. Therefore, I do not evaluate this allegation
under the Rossmore House framework.
The coercive effect of asking an employee to report on the
union activities of other employees almost always is sufficient
to violate Section 8(a)(1) of the Act. The Board does recognize
an exception when an employer makes clear that it is only
asking to be informed of abusive acts, such as intimidation,
which lie outside the Act’s protection. Compare First Student,
Inc., 341 NLRB 136 (2004); and West Michigan Plumbing &
Heating, Inc., 333 NLRB 418 (2001). However, this exception
is not applicable here. Lawrence did not simply ask to be told
of any instance of intimidation and his words would not
reasonable be understood as a request only to be informed
about such nonprotected conduct.
Accordingly, I conclude that Respondent interfered with
employees’ Section 7 rights when its manager and agent, Will
Lawrence, asked an employee to keep him informed about
developments in the union organizing drive. Therefore, I must
consider Respondent’s defense that the allegation is untimely.
Section 10(b) of the Act provides that “no complaint shall
issue based on any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board.”
Notwithstanding the literal language of Section 10(b), the
Board does not absolutely bar complaint allegations that are
based on charges filed outside the 6-month 10(b) period. The
Board has stated that “the timely filing of a charge tolls the
time limitation of Section 10(b) as to matters subsequently
alleged in an amended charge which are similar to, and arise
out of the same course of conduct, as those alleged in the timely
filed charge. Amended charges containing such allegations, if
filed outside the 6-month 10(b) period, are deemed, for 10(b)
purposes, to relate back to the original charge.” WGE Federal
Credit Union, 346 NLRB 982 (2006).
In determining whether an amended charge relates back to an
earlier charge for 10(b) purposes, the Board applies the three-
prong “closely related” test set forth in Redd-I, Inc., 290 NLRB
1115, 1118 (1988). The Board considers
(1) whether the otherwise untimely allegations of the
amended charge involve the same legal theory as the alle-
gations in the timely charge;
(2) whether the otherwise untimely allegations of the
amended charge arise from the same factual situation or
sequence of events as the allegations in the timely charge;
and
(3) whether a respondent would raise the same or simi-
lar defenses to both the untimely and timely charge allega-
tions.
Here, the new allegation involves a statement closely related
to one which already had been alleged to violate the same
section of the Act. Thus, complaint paragraph 9(a) alleges that
Respondent, by Will Lawrence, interrogated employees
concerning their union activities and the union activities of
other employees. The newly-added complaint paragraph 9(d)
alleges that this same supervisor instructed an employee to
report on the union activities of other employees. The
complaint further alleges both actions to interfere with, restrain,
and coerce employees in violation of Section 8(a)(1) of the Act.
It may be argued that the legal theory is slightly different for
each of the two allegations, but certainly not by much. The
first Redd-I factor clearly favors a finding that the two
allegations are closely related.
So does the second Redd-I factor. Both complaint
paragraphs 9(a) and 9(d) allege that the same supervisor,
Lawrence, made statements to the same employee during the
same meeting.
Moreover, the Respondent would raise the same or similar
defenses to both statements. Therefore, I conclude that the new
allegation, set forth in complaint paragraph 9(d), is closely
related to the allegation described in complaint paragraph 9(a)
and is not barred by Section 10(b) of the Act.
Accordingly, I recommend that the Board find the
Respondent violated Section 8(a)(1) of the Act when its
COPPER RIVER OF BOILING SPRINGS, LLC 467
supervisor and agent, Will Lawrence, asked an employee to
keep him informed about the union organizing campaign.
Complaint Paragraph 8(c)
Complaint paragraph 8(c) alleges that Respondent, by
Manager Keith Means, in about May 2012, threatened
employees with discharge because of their union activities.
Respondent has denied this allegation.
To support this allegation, the General Counsel elicited
testimony from Autumn Ballew that while in the kitchen
sometime in May 2012, she had a brief conversation with
Kitchen Manager Keith Means. According to Ballew, the
conversation was “really quiet” because Means was
whispering. She further testified:
Q. And what was said in this conversation and who
spoke?
A. Keith [M]eans told me that I needed to watch my
back because they were looking to fire me, and I asked
him why, and he said that he overheard a conversation in
the kitchen between Will Lawrence and the manager.
Q. Was there anything else to this discussion? Was
that it?
A. That was it
Q. Okay.
A. [T]hat I can recall now.
When Means took the witness stand, he explicitly denied
having such a conversation with Ballew and making the
statement which Ballew attributed to him. Based on my
observations of the witnesses, I conclude that Means’ testimony
is more reliable and credit his denials.
Although I find that Means did not tell Ballew that she
should watch her back because they were looking to fire her,
even if Means had made such a statement, it would not be
sufficient to prove the allegations in complaint paragraph 8(c)
and would not violate the Act. Complaint paragraph 8(c)
alleges that Respondent, through Means, threatened employees
with discharge for their union activities. Ballew’s testimony
does not indicate that Means said anything at all about union or
other protected activities.
Moreover, Ballew’s testimony does not suggest that the
statement she attributed to Means arose in the context of a
conversation about union or protected activities. Other
evidence, discussed below, indicates that Ballew did not attend
to customers and had performance problems which led to her
discharge. A person who heard the words which Ballew
attributed to Means would not reasonably understand them to
refer to union or protected activities, a subject not mentioned.
In sum, the pleadings and the proof differ significantly. The
complaint alleges a threat of discharge related to union
activities but Ballew’s testimony does not indicate this subject
ever arose during the conversation. In any event, I do not credit
that testimony. Therefore, I recommend that the Board dismiss
the unfair labor practice allegations predicated on the conduct
alleged in complaint paragraph 8(c).
Complaint Paragraph 8(d)
During the hearing, the General Counsel amended the
complaint to add a paragraph 8(d), alleging that sometime in
July 2012 Respondent, by Means, threatened employees with
discharge for their union activities. Respondent denied the
allegation and also raised a 10(b) defense.
Autumn Ballew testified that sometime in July 2012 she had
a conversation with Kitchen Manager Means. She said it took
place near the computer terminal in Respondent’s kitchen, with
no one else present. Ballew further testified as follows:
Q. By the way, did you approach him? Did he ap-
proach you? How did it take place?
A. I’m not sure, but he had to stay in the kitchen, so I
had to come into the kitchen, but I don’t know exactly
what the situation was to start the conversation.
Q. Okay.
A. But he did say, he said, “Don’t look at me. Just lis-
ten.” And he goes, talking to me, and he said that—he
said, “If you go outside to smoke with that server, Will
told me that he was going to fire you.”
Q. Give me that again. Speak up.
A. He told me, he said, “Don’t look at me. Just listen.”
And he told me that if I went outside to smoke with the
server, that I won’t—that Will Lawrence is going to fire
me.
Q. Do you know what he was referring to?
A. Yes, I do.
Q. What was that?
A. Just shortly after this conversation, a server came
up to the bar while I was waiting on customers, and she
looked at me really funny and she said, “Will told me to
ask you to go outside and smoke so he could fire you.”
Q. Do you know this server’s name?
A. I do not.
Q. What did she look like?
A. Short, real blonde hair. She didn’t work there very
long. She had just started.
Q. Now, in relation to the conversation with Keith
Means, when was that? Was that the same day or
A. The same day shortly after the conversation. Thirty
minutes or so.
Means specifically denied such a conversation. Based on my
observations of the witnesses, I credit Means’ denial and find
that he did not make the statement which Ballew attributed to
him.
Ballew’s story requires the listener to accept some
melodramatic elements of the sort familiar on television but not
in real life, namely, that a supervisor said “don’t look at me,
just listen” and that a server she did not know then gave her a
strange look followed by a strange message hinting at a
conspiracy to have Ballew fired for violating a smoking rule.
Sometimes, an implausible story indeed proves to be true,
but that happens when other parts of the record reveal a
reasonable explanation for the events and when there is some
other corroborating testimony or evidence not present here.
The record does not corroborate Ballew’s testimony or provide
predicate facts which would put the described events in a
believable context. The notion that management would have
another employee deliberately encourage Ballew to break a rule
to set her up for discharge simply doesn’t fit the evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD468
Manager Lawrence explicitly denied any scheme to have
Ballew discharged and credibly testified that he never indicated
to anyone that he was trying to have Ballew terminated because
of smoking. However, he did have a conversation with
Manager Means about Ballew smoking, and it would appear
that this conversation may have been the melody which gave
rise to Ballew’s fanciful riff.
It is important to stress that Respondent has a very strong no-
smoking policy. Lawrence described how an unfortunate event
led to the promulgation of the rule:
Q. Can you tell us why it was prohibited?
A. Smoking is prohibited because a hourly employee
put a cigarette out in one of the trash cans behind the
building, which caused a fire and the flames were, you
know, 12, 15 feet in the air, and if the trash can would
have been another foot closer to the restaurant, it would
have caught the restaurant on fire. So the fire department
had to come out, put out the flames, and it was pretty bad.
So we definitely take that seriously.
One evening, as Lawrence was about to leave for the night, a
bartender approached him and reported that Ballew had left
multiple times during shifts to go smoke, which was strictly
prohibited. Lawrence, realizing that Kitchen Manager Means
would be the only remaining manager on duty, decided to speak
to him. “I just told him,” Lawrence testified, “I said, you know,
keep an eye on Autumn. She’s been, you know, leaving to go
smoke. If you see anybody smoking, you know, tell them to
stop and then just, you know, write me a note in the manager’s
log or, you know, document it somehow and let us know who it
was and what they were doing.”
Ballew may well have learned somehow, perhaps even from
Means himself, that Lawrence wanted Means to make a note of
anyone who was smoking. However, crediting Means, I find
that he did not say the words which Ballew attributed to him.
Indeed, he would have felt no need to try to conceal the
conversation by saying “don’t look at me, just listen,” because
Lawrence had left and Means was the highest ranking
supervisor on duty. From whom would he be trying to hide the
fact that he spoke with the bartender?
Another part of Ballew’s testimony, discussed below, also
leads me to suspect that she processed information in a quirky
way vulnerable to misperception. Her testimony about the
reasons Manager Walker gave for her discharge omitted a
serious matter—a customer’s complaint that Ballew neglected
customers and left her post to text on her cell phone—but did
mention receiving an oral warning for being 3 minutes late.
However, even if Ballew fancied herself the central figure
around whom intrigue swirled, rather than an employee who
was warned not to go outside and smoke, the story she told did
not implicate Section 7 rights. The words she attributed to
Means did not mention the Union or protected activities, and
neither did the words she attributed to the server. Moreover,
her testimony did not indicate that there was any mention of
union activities or that she had recently engaged in any union
activities. Nothing about the context would associate the words
with the Union or protected activities.
It concerns me the General Counsel alleges that Means
threatened to discharge employees for union activities when the
words attributed to Means made no reference to either a union
or union activities and there was no context which would lead a
listener reasonably to believe he was talking about union
activities. Significantly, this could not be an instance in which
a witness’s pretrial affidavit claimed that a supervisor did
mention union activities, resulting in a complaint allegation, but
then the witness changed her testimony at trial. Instead, the
General Counsel amended the complaint during the hearing to
add the allegation.
My concern is about fairness, not about whether the
allegation meets the notice pleading requirements. It is about a
commonsense notion of truth-in-labeling. A can marked
“beans” should have at least one bean in it somewhere.
Likewise, when the complaint labels a supervisor’s remark a
“threat to discharge employees for union activities,” the remark
should either have the word “union” in it somewhere or at least
include a reasonably recognizable reference to union activities.
No evidence, either credited or uncredited, establishes that
Means threatened employees with discharge because of their
union activities. Therefore, I recommend that the Board
dismiss the unfair labor practice allegations predicated on
complaint paragraph 8(d).
Complaint Paragraph 9(b)
Complaint paragraph 9(b) alleges that about May 7, 2012, at
the Employer’s facility, threatened employees with unspecified
reprisals because they engaged in forming and assisting a
union. The Respondent denies this allegation.
In late April 2012, notwithstanding that he had been served
with the “no trespass” letter, Kevin Ballew again entered the
restaurant, where he left an envelope. The record doesn’t
disclose the contents of the envelope or even that it ever was
opened.
Respondent’s management reported the matter to police, who
later arrested Ballew. The record indicates that a South
Carolina state court later found him guilty of violating a
criminal trespass statute.
According to Autumn Ballew, on the day after Kevin
Ballew’s arrest, she had a conversation with Manager
Lawrence. She said this conversation took place in the
restaurant’s office, and no one else was present.
Ballew testified that Lawrence told her that Kevin Ballew’s
arrest “serves him right” and that he had told Kevin Ballew that
the petition was going to cause a lot of trouble, adding that it
was going to cause her a lot of trouble down the road. Ballew
said that she protested that it was her right to sign the petition
and that it should not be held against her, and that Lawrence
replied “Well, you signed it. It will be held against you.”
Lawrence denied these allegations. As explained above, my
observations of the witnesses lead me to place greater trust in
the accuracy of Lawrence’s testimony. Crediting his denial, I
find that he did not make the statements which Ballew
attributed to him.
Therefore, I recommend that the Board dismiss the unfair
labor practice allegations predicated on complaint paragraph
9(b).
COPPER RIVER OF BOILING SPRINGS, LLC 469
Complaint Paragraph 9(c)
Complaint paragraph 9(c) alleges that about June 18, 2012,
at the Employer’s facility, Respondent, by Will Lawrence,
impliedly threatened employees with discharge because they
engaged in forming and assisting a union. The General
Counsel’s brief describes this allegation as follows:
In or around June, Lawrence also impliedly threatened A.
Ballew with discharge. In this connection, she testified that
after she returned from vacation in June, she approached
Lawrence about getting her work shifts back. [Tr. 156.] She
asked Lawrence why she was scheduled for only one shift.
[Tr. 156.] He told her it was because she had been on
vacation. [Tr. 156.] In the past, she had never lost shifts after
vacation, so A. Ballew asked Lawrence why he was doing this
to her. [Tr. 156.] Lawrence simply responded, “Well, why
don’t you just quit?” [Tr. 156.]
The General Counsel’s brief accurately summarized Autumn
Ballew’s testimony. However, it does not explain how the
statement attributed to Lawrence—that Ballew had been
assigned fewer shifts because she had been on vacation—could
be even an implied threat of retaliation for union or protected
activity. Although Ballew claimed that Lawrence asked her
why she didn’t just quit, that question also makes no reference
to union or protected activities. An employee hearing the
words attributed to Lawrence would not reasonably understand
them to relate to union or protected activities.
Under some circumstances, when a supervisor and employee
are engaged in a conversation which makes some reference to
union activity or has some obvious connection with union
activity, a “why don’t you just quit” remark might violate
Section 8(a)(1). The Board has consistently found violative
employer statements that a union supporter who is unhappy
should seek work elsewhere. Such statements suggest that
union support or dissatisfaction is incompatible with continued
employment. See, e.g., El Paso Electric Co., 350 NLRB 151
(2007); Paper Mart, 319 NLRB 9 (1995). However, the “just
quit” comment attributed to Lawrence does not communicate
any such message. According to Ballew, Lawrence made the
remark during a conversation about her work schedule. As
stated above, nothing about the conversation Ballew described
constituted a reference to union or protected activities.
Lawrence denied making these remarks and, crediting his
testimony, I find that he did not. I recommend that the Board
dismiss the unfair labor practice allegations predicated on
complaint paragraph 9(c).
Finally, the significant difference between the allegation
pleaded in the complaint and the evidence the government
offered to satisfy its burden of proof again troubles my sense of
fairness. When the testimony and other evidence makes no
reference, either explicit or implied, to a union or union
activity, is there any justification for alleging that a respondent
threatened employees with discharge for forming and assisting
a union?
Complaint Paragraphs 10(a), (b), and (c)
Paragraph 10 of the complaint and its three subparagraphs
concern work rules published in Respondent’s employee
manual. Respondent’s answer admits that complaint
paragraphs 10(a) and 10(c) accurately set forth the respective
rules. It denies the accuracy of complaint paragraph 10(b). A
comparison of this allegation with the evidence leads me to
conclude that the complaint allegation is verbatim except for
the inclusion of the word “other” between the words “to any”
and “unauthorized person or party.” Based on the admissions
in Respondent’s answer and on the Respondent’s employee
handbook, which is in evidence, I find that at all material times,
Respondent maintained in effect work rules which included the
following prohibitions:
[Rule 4]
Insubordination to a manager or lack of respect and
cooperation with fellow employees or guests. This includes
displaying a negative attitude that is disruptive to other staff or
has a negative impact on guests.
[Rule 18]
Unauthorized dispersal of sensitive Company operating
materials or information to any unauthorized person or party.
This includes but is not limited to policies, procedures,
financial information, manuals, or any other information
contained in Company records.
[Rule 24]
Any other action or activity which the Company believes
represents an actual or potential threat to the smooth
operation, goodwill, or profitability of its business.
The Board has established a framework for evaluating
whether a work rule reasonably would tend to chill employees
in the exercise of Section 7 rights and thereby violate Section
8(a)(1) of the Act. A work rule which explicitly restricts the
exercise of such rights is unlawful on its face. See Lutheran
Heritage Village-Livonia, 343 NLRB 646, 646 (2004). If the
rule does not include such an explicit limitation, then, to prove
its illegality, the government must establish one of following:
(1) Employees reasonably would understand the rule to prohibit
Section 7 activity; (2) the employer promulgated the rule in
response to union activity; or (3) the rule has been applied to
restrict the exercise of Section 7 rights.
Here, the government does not argue that the work rules
meet either the second or third criteria, but instead contends
only that employees reasonably would understand the rules to
limit their right to engage in activities the Act protects. The
General Counsel’s brief states, in part, as follows:
In the instant case, it is not alleged that the work rules
in issue were promulgated in response to union activity,
nor is it alleged that the work rules explicitly reference
Section 7 activity. However, with respect to work rules 4
and 24, Respondent’s broad prohibitions against display-
ing a negative attitude that is disruptive to other staff or
has a negative impact on guests and actions which threat-
en smooth operation, clearly encompass employees’ con-
certed communications or conduct protesting terms and
conditions of employment. In finding language similar to
work rules 4 and 24 to be overly broad, the Board, in
adopting the administrative law judge’s analysis in Uni-
versity Medical Center, 335 NLRB 1318, 1321 (2001),
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD470
stated that concerted employee protest of supervisory ac-
tivity and employee solicitation of union support from
other employees are protected activities under the Act.
The Board also found that the employer’s prohibition
against all disrespectful conduct toward others could rea-
sonably be construed to prohibit concerted employee pro-
tests or other protected activities. Id. at 1322. Similarly, in
Ridgeview Industries, 353 NLRB 1096 (2009), the Board
found the promulgation, maintenance, and enforcement of
rules prohibiting employees from engaging in behavior
designed to create discord or lack of harmony to be overly
broad and, thus, violative of Section 8(a)(1) of the Act.
However, the Board distinguishes work rules addressing
conduct that is reasonably associated with actions that fall
outside the Act’s protection such as conduct that is mali-
cious, abusive, or unlawful. [See Lutheran Heritage Vil-
lage-Livonia, supra.]
With respect to rule 18, the General Counsel cites Costco
Wholesale Corp., 358 NLRB 1100, 1100 (2012), and University
Medical Center, above, for the proposition that employees
could reasonably understand the language, forbidding
“unauthorized dispersal of sensitive Company operating
materials or information,” to prevent them from disclosing or
discussing their wages or other terms and conditions of
employment.
Disagreeing, the Respondent cites other authority to support
its argument that employees would not reasonably believe the
rules applied to activities protected by the Act. See Lutheran
Heritage Village-Livonia, above; Tradesman International, 338
NLRB 460 (2004); Lafayette Park Hotel, 326 NLRB 824
(1998).
Before discussing the case law, clarity may be served by
making some observations about the cases cited in the
government’s brief. I do not rely on Ridgeview Industries, 353
NLRB 1096 (2009), because it is one of the decisions affected
by the Supreme Court’s holding in New Process Steel, L.P. v.
NLRB, 130 S.Ct. 2635 (2010).
Additionally, although the General Counsel’s brief cited
University Medical Center, 335 NLRB 1318, 1321 (2001), to
support a finding that Respondent’s work rules violated the Act,
the brief did not mention that the Court of Appeals for the
District of Columbia Circuit had denied enforcement of this
portion of the Board’s decision. See University Medical Center
v. NLRB, 335 F.3d 1079, 1088–1089 (D.C. Cir. 2003). The
court of appeals decision is especially significant because of its
apparent influence on subsequent Board decisions, notably
Lutheran Heritage Village-Livonia, above, which the General
Counsel’s brief did cite, and which will be discussed below.
The University Medical Center case remains instructive even
though the court of appeals disagreed with its work rule
analysis and even though the Board’s later precedents
responded to the Court’s concerns. The University Medical
Center decision demonstrates that two work rules which
superficially appear quite similar can differ in their effects and
their legality. The decision also shows how the Board has
distinguished two rules which appear to be fraternal twins, if
not identical, a lesson which will prove useful in the discussion
below.
In University Medical Center, the Board distinguished the
rule it was examining - and ultimately found violative—from a
rather similar (but not identical) rule which had passed muster
in Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203
F.3d 52 (D.C. Cir. 1999). Here is the language the Board found
unlawful:
[Rule] 1. Insubordination, refusing to follow directions, obey
legitimate requests or orders, or other disrespectful conduct
towards a service integrator, service coordinator, or other
individual;
. . . .
[Rule] 8. Release or disclosure of confidential information
concerning patients or employees.
The Board majority stated that it was applying the principle
it articulated in Lafayette Park Hotel, that the appropriate
inquiry is whether the rules would reasonably tend to chill
employees in the exercise of their Section 7 rights. However,
the Board concluded that this rule did chill the exercise of such
rights in a way the corresponding rule in Lafayette Park Hotel
had not.
The rule in Lafayette Park Hotel had prohibited “Being
uncooperative with supervisors, employees, guests and/or
regulatory agencies or otherwise engaging in conduct that does
not support the Lafayette Park Hotel’s goals and objectives.”
(Emphasis added.) However, the rule in University Medical
Center did not make reference to the employer’s “goals and
objectives.” The Board majority considered this difference
distinctive:
In Lafayette Park, the majority, focusing on the “goals and
objectives” language, concluded that the language in question
addressed legitimate business concerns and contained no
ambiguity. The rule in this case, however, included no such
limiting language which removes its ambiguity and limits its
broad scope.
335 NLRB at 1321.
Certainly, the District of Columbia Circuit rejected the
Board’s conclusion that the language in question violated the
Act, and the Board cited the Court’s opinion and followed it in
Lutheran Heritage Village-Livonia, above. However, the idea
that limiting language in a rule can affect employees’
reasonable understanding of it flows logically from the well-
established principle that the Board “must refrain from reading
particular phrases in isolation.” Lutheran Heritage Village-
Livonia, above, 343 NLRB at 646. Thus, language in a rule
which relates a prohibition to a specific legitimate business
purpose may well affect how employees reasonably understand
the scope of the rule.
Indeed, where work rules appear together in a publication,
such as Respondent’s employee handbook, employees
reasonably would read the individual rules as part of the whole.
If one of the rules articulated goals and objectives, a reader
reasonably would conclude—absent some indication to the
contrary—that such a statement of purpose informed the rules
as a whole and suggested the contours of their application.
Such a statement of goals and objectives could, as the Board
COPPER RIVER OF BOILING SPRINGS, LLC 471
explained in University Medical Center, amount to “limiting
language” which prevented employees from concluding that an
unclear rule restricted the exercise of their Section 7 rights.
The work rule described in complaint paragraph 10(c) and
identified in the manual as rule 24 refers to actual or potential
threats “to the smooth operation, goodwill, or profitability of its
business.” These words are tantamount to an explanation of
goals and objectives and therefore constitute limiting language.
Thus, even under University Medical Center, I would conclude
that limiting language made the rule lawful. Clearly, it would
be lawful under later precedent.
The Board’s decision in Lutheran Heritage Village-Livonia
does not affect the principle that limiting language can narrow
the scope of a rule so that it does not infringe on the exercise of
Section 7 rights. However, this decision does underscore the
need for caution in drawing conclusions based on the absence
of limiting language. The Board “must not presume improper
interference with employee rights.” Id., citing Lafayette Park
Hotel, 326 NLRB at 825, 827.
In Luther Heritage Village-Livonia, the Board affirmed the
judge’s findings that some work rules (which did not resemble
those at issue here) violated the Act but concluded that others
(which were similar to those at issue here) did not. Citing the
Court’s opinion in University Medical Center v. NLRB, 335
F.3d 1079, 1088–1089 (D.C. Cir. 2003), the Board held that a
reasonable employee would not read a rule prohibiting
“insubordination, refusing to follow directions, obey legitimate
requests or orders, or other disrespectful conduct towards a
[supervisor] or other individual as proscribing solicitation of
union support or concerted employee protest of supervisory
activity because, read as a whole, the rule applied only to
insubordinate activity.” The Board continued as follows:
Where, as here, the rule does not refer to Section 7 activity,
we will not conclude that a reasonable employee would read
the rule to apply to such activity simply because the rule could
be interpreted that way. To take a different analytical
approach would require the Board to find a violation
whenever the rule could conceivably be read to cover Section
7 activity, even though that reading is unreasonable. We
decline to take that approach.
343 NLRB at 647 (footnote omitted).
The General Counsel’s brief also cites Claremont Resort &
Spa, 344 NLRB 832 (2005), a case in which the Board further
explained and applied the principles it had discussed in
Lutheran Heritage Village-Livonia. The respondent in
Claremont Resort & Spa had issued a work rule stating,
“Negative conversations about associates [employees] and/or
managers are in violation of our Standards of Conduct that may
result in disciplinary action.”
The Board found that this prohibition “would reasonably be
construed by employees to bar them from discussing with their
coworkers complaints about their managers that affect working
conditions, thereby causing employees to refrain from engaging
in protected activities.”
The General Counsel’s brief equates the rule’s unlawful
prohibition of “negative conversations” with the Respondent’s
prohibition against “displaying a negative attitude that is
disruptive to other staff or has a negative impact on guests.”
However, the two rules can be and should be distinguished.
Prohibiting “conversation” cuts to the very essence of
activity which the Act protects because all other actions
contemplated by the statutory scheme flow out of employees’
discussions about their wages, hours, and other terms and
conditions of employment. There could be no union organizing
effort at all without such employee conversations. Typically, a
negative emotion—dissatisfaction with wages or working
conditions, stimulates such discussions. A typical employee
reasonably would understand the prohibition of “negative
conversations” to ban discussion of work-related complaints
and, therefore, to restrict the exercise of Section 7 rights.
By comparison, Respondent’s rule, forbidding “displaying a
negative attitude” does not limit employees’ rights to have
conversations about any subject. Moreover, the rest of the rule
includes the kind of “limiting language” which the Board
discussed in its University Medical Center decision.
Specifically, the Respondent’s rule does not ban all displays of
negative attitude but only a display “that is disruptive to staff or
has a negative impact on guests.”
The limiting language thus links the scope of the prohibition
to Respondent’s legitimate business concerns. Thus, just as the
Board, in University Medical Center, drew a distinction
between the work rule in that case and the rule in Lafayette
Park Hotel, the violative work rule in Claremont Resort & Spa
should be distinguished from the Respondent’s rules in the
present case.
A more recent case cited by the General Counsel, Costco
Wholesale Corp., above, did involve work rules which
described particular activities which enjoy the Act’s protection.
Indeed, the rules even forbade the sharing of employees’
names, addresses, and telephone numbers. However, the rules
under examination in the present case neither refer to specific
Section 7 activities nor prohibit any.
In sum, based on Lutheran Heritage Village-Livonia, I
conclude that employees would not reasonably understand the
rule to prohibit Section 7 activity. Further, the record does not
indicate and the government does not contend that Respondent
promulgated the rules in response to protected activity. I find
that Respondent did not.
There is a third question which must be answered: Has
Respondent applied any of the rules to restrict the exercise of
Section 7 rights. The Government so asserts. The General
Counsel’s brief states, in part:
As will be discussed later in this Brief, rule 4 was not only
maintained, but, also enforced to restrict the exercise of
employees’ Section 7 rights when Respondent discharged
employee Autumn Ballew citing, among other things, her
violation of this work rule.
Among other things, rule 4, quoted above, prohibits a “lack
of respect” which “includes displaying a negative attitude that
is disruptive to other staff or has a negative impact on guests.”
Indeed, as will be discussed further below, Respondent did
discharge Autumn Ballew for reasons which included
“displaying a negative attitude” which was disruptive and had a
“negative impact on guests.” In Respondent’s restaurant, which
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD472
does business as the “Copper River Grill,” within the hearing
range of guests, Ballew loudly announced “Fuck Copper
River!”
This fit of pique wasn’t part of the service that guests
reasonably would expect. It also was not activity protected by
the Act. Credible evidence does not establish that Respondent
ever applied the work rules to restrict Section 7 activity and I
conclude that it did not. In sum, I conclude that the
government has not established that the work rule described in
complaint paragraph 10(a) chills the exercise of employees’
Section 7 rights, and therefore further conclude that it does not
violate Section 8(a)(1) of the Act.
The work rule described in complaint paragraph 10(b)
prohibits the “unauthorized dispersal of sensitive Company
operating materials or information. . . . This includes but is not
limited to policies, procedures, financial information, manuals,
or any other information contained in Company records.”
The rule’s reference to “financial information” might be
construed to include wage and benefit rates, which employees
have the Section 7 right to discuss. However, the rule itself
does not refer to wage or benefit rate and its prohibition is
limited to the dispersal of “sensitive Company” materials and
information. The rule does not suggest that information
appearing on an employee’s pay stub would be such “sensitive
Company” information.
I conclude that a person reading the rule in its total context
would not understand it to prohibit employees from discussing
and disclosing information about their wages, hours, and
working conditions. Therefore, I further conclude that it does
not violate Section 8(a)(1) of the Act.
For the reasons discussed above, I also conclude that the rule
described in complaint paragraph 10(c) does not have a chilling
effect on employees exercise of Section 7 rights. I further
conclude that it does not violation Section 8(a)(1) of the Act.
Therefore, I recommend that the Board dismiss the unfair
labor practice allegations which are predicated on the conduct
alleged in complaint paragraphs 10(a), (b) and (c).
Complaint Paragraphs 11(a) and 11(b)
Complaint paragraph 11(a) alleges that about March 2012,
Respondent, by Will Lawrence, by oral announcement,
promulgated and since then has maintained a work rule
prohibiting employees from engaging in solicitation at any time
at its facility. Complaint paragraph 11(b) alleges that
Respondent promulgated and maintained this rule to discourage
its employees from forming or assisting a union or engaging in
other concerted activities. Respondent denies these allegations
and also raises a 10(b) timeliness defense.
Although complaint paragraph 10(a) alleges the
promulgation of a no-solicitation rule, that description may
cause confusion. No evidence, not even that presented by the
government, suggests that Manager Lawrence announced a
work rule, as such. The General Counsel’s brief described the
allegations as follows:
In March, Supervisor Lawrence orally announced and
promulgated an unlawful and overly broad work rule when he
told Massey and A. Ballew that it was illegal to solicit a union
petition at the restaurant. (Tr. 100, 145) The promulgation of
such a rule was clearly overly broad and thus presumptively
invalid because it stated an absolute prohibition of employee
solicitation at all times and places. Thus, the Judge should find
that the oral promulgation of a no solicitation rule by Lawrence
violates Section 8(a)(1) of the Act. Mesa Vista Hospital, 280
NLRB 298, 299 (1986); Our Way, Inc., 268 NLRB 394, 394,
395 (1983).
From the General Counsel’s brief, it is clear that the
government is alleging (1) that Lawrence told employees “it
was illegal to solicit a union petition at the restaurant” and (2)
that this statement amounted to a rule prohibiting employees
from soliciting employees to sign a petition supporting the
Union.
Allegations related to complaint paragraph 8(a) also attribute
to Lawrence a statement that circulating a union petition in a
restaurant was illegal. For the reasons discussed above, I have
concluded that the testimony offered in support of these
allegations is not reliable. Instead, I have credited Lawrence’s
specific denial that he ever made such a statement.
In addition to the testimony discussed above in connection
with complaint paragraph 8(a), the record includes testimony
which clearly is specific to complaint paragraph 11. The
General Counsel’s direct examination of Katie Massey includes
the following:
Q. Now, I want to direct your attention to a period
March/April 2012. Again, did you have an incident there
or a conversation on the patio involving any supervisor
about the Union?
A. Yes.
Q. All right.
JUDGE LOCKE. What complaint allegations is this that
you’re
MR. BROWN. This goes to Paragraph 9 pardon me I be-
lieve it’s Paragraph 11, Your Honor.
JUDGE LOCKE: 11. Thank you.
MR. BROWN: I believe it’s Paragraph 11.
Q. BY MR. BROWN: Okay. Now, this was on the patio.
Who was present in this conversation? Who was there?
Was a group gathered?
A. This day on the patio it was it was during the day
between shifts. It was myself, Kevin Ballew, Autumn
Ballew, and another server named Elias Bolero (ph.).
Q. Okay.
A. We were all sitting out at a table on the patio. Kev-
in was explaining Kevin Ballew was explaining to Elias
Bolero about the Union. We were trying to get him to sign
the petition and to, you know, support what we were do-
ing, and we had been out there for probably I’m not real
sure how long, but maybe 15, 20 minutes. And Will
comes out
Q. Will Lawrence?
A. Will Lawrence comes out onto the patio.
Q. Okay.
A. He looks at us, glares us down, and walks back in-
side. I walked inside, you know, a few minutes later.
Q. Did he say anything while he was out there?
A. Will did not say anything.
Q. Okay. All right.
COPPER RIVER OF BOILING SPRINGS, LLC 473
A. And I walked inside a few minutes later and he told
me, you know, that it was illegal what Kevin was doing,
and I informed Will that it was actually illegal that what he
that what he himself, Will Lawrence, was doing was ille-
gal by trying to interfere with this.
Autumn Ballew testified that she, Kevin Ballew, and an
employee named Elias Balero were on the restaurant’s patio on
one occasion in early April 2012 when Lawrence came outside,
saw them and glared. However, her testimony did not extend to
the remainder of Massey’s account, quoted above. Thus,
Massey’s testimony concerning what Lawrence told her is
uncorroborated.
My observations of the witnesses lead me to resolve
credibility conflicts between Lawrence and Massey by crediting
Lawrence, but it also may be noted that Massey’s testimony
itself falls short of the government’s claims. Although the
General Counsel’s brief asserts that Lawrence said “that it was
illegal to solicit a union petition at the restaurant,” neither the
word “union” nor the word “petition” appears in Massey’s
testimony about this matter.
Moreover, this testimony reasonably does not support an
inference that the words Massey actually attributed to
Lawrence—”it was illegal what Kevin was doing”—referred to
union or protected, concerted activity. Nothing in the testimony
indicates that Lawrence got close enough to the four people on
the patio, or stayed long enough, to learn that they were
discussing a union petition.
Additionally, the words attributed to Lawrence have an
obvious meaning unrelated to union activity. In late February
2012, after Kevin Ballew had caused a disturbance at the
restaurant, the Respondent had served him with a no-trespass
letter. Even if Lawrence had said that “it was illegal what
Kevin was doing,” those words literally were true and referred
to the crime of trespass.
The record indicates that Lawrence had learned about the
union activity by sometime in May 2012, when he had the
conversation with employee Victoria Ballard discussed above
in connection with the allegations raised by complaint
paragraph 9(d). However, that was well after the events
described in Massey’s testimony here. Credited evidence does
not establish that Lawrence knew anything about a union
organizing drive at that time.
The Respondent’s posthearing brief, noting that the Union
filed its representation petition in February 2013, and that the
Board conducted an election on April 4 and 5, 2013, argues that
a year earlier “there was no such campaign about which any
supervisors or employees generally were aware.” The record is
consistent with a conclusion that, if the union organizing drive
had been a snowball growing as it rolled downhill, it would
have been quite small and unlikely to attract much notice in
March and April 2012.
For example, the petition which the government introduced
as General Counsel’s Exhibit 6 bears 8 signatures. Of those,
one is undated, four are dated in early January 2012, one is
dated March 19, 2012, one is dated March 20, 2012, and the
remaining signature is dated July 1, 2012. The gaps in the
dates are consistent with periods of inactivity in which the
petition did not circulate.
Moreover, this could not have been the showing of interest
used to support the representation petition in Case 10–RC–
098046, or at least not all of it. The Regional Director’s
Decision and Direction of Election in that case held that the
bargaining unit consisted of about 47 employees, the same
number sought by the Union. The 30 percent showing of
interest necessary to support the representation petition would
have required 15 signatures, almost twice the number on
General Counsel’s Exhibit 6.
The testimony of one of Respondent’s employees, called by
the General Counsel, supports a conclusion that there actually
were two organizing efforts separated by months of inactivity.
The witness, Zachary Scott Daniel, gave the following
testimony on April 22, 2013, during cross-examination by
Respondent:
Q. BY MR. FISHER: Mr. Daniel, you referred to a peti-
tion.
A. Umhmm.
Q. Did you see this petition?
A. Not the first time. Only the—there was a time in
2012 when I guess the petition was going around. I never
saw it that time. But the most recent one I had I did see.
Q. And that was in January or February of this year?
A. Yes, sir.
The Decision and Direction of Election, dated March 7,
2013, stated that the Union “was organized about 14 months
ago” and that it “consists of about 15 members, but additional
members are being added.” It also found that the Union was
not affiliated with any other labor organizing, that it had not yet
registered with any government agency and that its members
“have ratified parts of its constitution and bylaws, but that too
is an ongoing process.”
These facts form a picture of a union getting started and
picking up momentum slowly, which would be consistent with
it having a low profile, and low visibility, in March and April
2012. This picture is fully consistent with a conclusion that
Lawrence was unaware of the union organizing campaign in
April 2012. Based on the credited testimony, I so find.
The credited evidence fails to establish that Lawrence ever
said that soliciting a union petition or support for the union in
the restaurant was illegal, and I find he did not make such
statements. Therefore, I recommend that the Board dismiss the
unfair labor practice allegations which are related to complaint
paragraphs 11(a) and (b).
Complaint Paragraph 13(a)
Discharge of Katie Massey
Complaint paragraph 13(a) alleges that on about April 19,
2012, Respondent discharged employee Katie Massey.
Respondent admits this allegation, but denies that it did so for
unlawful reasons or violated the Act.
Massey first worked for Respondent as a server in 2008 then
quit. She testified that Respondent rehired her in 2010. She
then worked for Respondent as a server until her discharge in
April 2012.
Respondent states that it discharged Massey for twice
violating a work rule commonly called “ring it before you bring
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD474
it.” It enforces this rule by having a “key employee” conduct
“drink audits.” For brevity, I will describe this “drink audit”
procedure in connection with an evidentiary issue raised by the
General Counsel because the two subjects are related.
The General Counsel contends that Respondent failed to
comply fully with the government’s subpoena duces tecum and
requests that sanctions be imposed for such asserted
noncompliance. Specifically, the government asserts that
Respondent failed to produce certain documents—”audit
tickets”—described in the subpoena. The General Counsel
argues that I should strike certain evidence, offered by
Respondent, which relates to the audit tickets. The General
Counsel also urges that I draw an adverse inference based on
Respondent’s failure to produce the subpoenaed documents.
When the General Counsel raised this matter during the
hearing, I denied the request for sanctions, but did so subject to
further consideration after I had reviewed the transcript and
exhibits. The government sought such reconsideration in the
General Counsel’s posthearing brief.
Because the procedural issue concerns the Respondent’s
failure to produce the subpoenaed “audit tickets,” I will begin
by summarizing the relevance of these slips. Respondent has a
strict policy that, when a customer orders a beverage, the server
must enter the billing information into the computer before
taking the drink to the customer. The slogan “ring it before you
bring it” helps waiters and waitresses remember the policy.
However, because of the penalty for breaching it, such a
reminder may be unnecessary. A server receives a warning for
a first violation, but is discharged for the second.
To enforce the rule, Respondent has a “key employee”
circulate discreetly among the tables performing “drink audits.”
(The term “key manager” also refers to such an individual.
Notwithstanding the title “manager,” the person is not a
statutory supervisor. The Regional Director’s decision and
direction of election in Case 10–RC–098046 included such
individuals in the bargaining unit.)
The key employee observes whether the beverages on a
certain table correspond to the information in the computer
about the drinks which the customers at that table had ordered.
If the beverage on the table appears to be tea or a soft drink but
the computer indicates only water, that discrepancy suggests
that the server failed to record the drink order properly.
A manager performing a drink audit begins by checking the
computer terminal and then walks among the tables to make
observations. When managers first started doing such audits,
they either had to remember what they saw on the computer
screen or else jot a note. More recently, the Respondent began
installing a computer printer near each terminal, so that the key
manager can print out an “audit ticket” to use as a memory aid.
This “audit ticket” is different from the bill which the server
delivers to the customer at the end of a meal.
On about April 19, 2012, Key Manager Courtney Stepp
performed such an audit and detected a discrepancy between
the drinks she observed on a customer’s table being served by
Katie Massey and the information in the computer, which
indicated only water. She found a similar discrepancy on
another table being served by Massey. Stepp testified as
follows concerning the action she took:
Q. What, if anything, did you do as a result of this au-
dit?
A. I went to print her ticket from the computer, her re-
ceipt that she would take to the table, and I stapled it and
took it to the manager that was on duty at the time and told
him that she didn’t have her drinks rung in, and he told me
to write a note and leave it for our owner. [Emphasis add-
ed.]
As the italicized words establish, the document which Stepp
took to the manager in charge was not an “audit ticket” but
rather the receipt—the “bill”—which Massey would deliver to
the customer at the conclusion of the meal. The record does not
reveal exactly what happened to the “audit ticket” which Stepp
had carried with her while checking the tables, but no evidence
contradicts Respondent’s assertion that it does not keep such
tickets in the course of its business.
Routinely conducting drink audits generates many such
small slips of paper. Each serves a useful purpose for perhaps
10 minutes, but after that, there is no obvious need for their
retention. The slips aptly could be called not “business
records” but “litter.” It is not surprising that they would be
discarded.
Before the hearing, the General Counsel served a subpoena
on the Respondent which sought production of a number of
documents, including the audit tickets. In compliance with the
subpoena, the Respondent provided the government with a
substantial number of documents, but stated that it could not
furnish the audit tickets because it had not kept them. During
Stepp’s testimony, the General Counsel moved to strike
portions of it as a sanction for Respondent’s failure to furnish
the audit tickets pursuant to the subpoena. The government
also argued that I should draw an adverse inference based on
the failure to produce the subpoenaed documents. I denied
these motions, but indicated that I would give the matter further
consideration after reviewing the transcript and exhibits.
As noted above, the General Counsel’s posthearing brief
renewed the motions to impose sanctions and draw an adverse
inference. A portion of that brief is quoted below. The name
“Walker” refers to the Respondent’s highest ranking manager at
the restaurant:
At hearing, Respondent asserted that it did not maintain the
audit tickets as part of its business records. [Tr. 275.]
The evidence reflects that Walker relied on the customer
receipts and other related documents to determine that
Massey violated Respondent’s drink policy. [Tr. 329, 332.] It
is, therefore, submitted that the audit tickets showing
Massey’s service to guests on April 19, as well as Stepp’s
alleged note to Walker pertaining to this matter, are relevant to
the Judge’s decision in this case. Accordingly, counsel for
Acting General Counsel renews his motion to strike all
evidence elicited by Respondent and relied upon as a basis for
its determination that Massey violated its drink policy. In this
regard, the Board has long held that Respondent may not use
relevant evidence it refused to produce pursuant [to] a
properly issued subpoena to prove its case. Bannon Mills,
Inc., 146 NLRB 611, 613 fn. 4 (1964).
COPPER RIVER OF BOILING SPRINGS, LLC 475
My consideration of the General Counsel’s argument begins
with the general principle that a party has a duty to comply with
a subpoena seeking unprivileged documents if the subpoena is
not revoked and if such records are within the party’s custody
or control. This duty of compliance bars a party from
destroying subpoenaed evidence to prevent its use in the
litigation. Similarly, it prohibits the subpoenaed party from
claiming falsely that an extant document does not exist and
from simply withholding it unilaterally. Instead, the party must
challenge the subpoena by petition to revoke pursuant to
Section 102.31(b) of the Board’s Rules and Regulations, and,
where applicable, by timely assertion of privilege. See, e.g.,
Pioneer Hotel & Gambling Hall, 324 NLRB 918 (1997).
The Board is entitled to impose a variety of sanctions to deal
with subpoena noncompliance, including permitting the party
seeking production to use secondary evidence, precluding the
noncomplying party from rebutting that evidence or cross-
examining witnesses about it, and drawing adverse inferences
against the noncomplying party. See, e.g., International Metal
Co., 286 NLRB 1106, 1112 fn. 11 (1986) (precluding employer
from introducing into evidence documents it had failed to
produce in response to the General Counsel’s subpoenas).
As the Board stated in McAllister Towing & Transportation
Co., Inc., 341 NLRB 394 (2004), its authority to impose such
sanctions “flows from its inherent ‘interest [in] maintaining the
integrity of the hearing process.’ NLRB v. C. H. Sprague & Son,
Co., 428 F.2d 938, 942 (1st Cir. 1970); see also Perdue Farms,
Inc. v. NLRB, 144 F.3d 830, 834 (D.C. Cir. 1998) (approving
Board’s application of the ‘preclusion rule’ as being necessary
to ensure compliance with subpoenas).”
Thus, some form of sanction may be appropriate in response
to a deliberate destruction of evidence or an intentional refusal
to honor the subpoena because such willful acts undermine the
integrity of the hearing process. However, I would be quite
reluctant to impose a sanction without credible evidence that
the party acted with such improper intent. Moreover, when a
non-culpable destruction of a document has made compliance
with the subpoena impossible, it clearly would be inappropriate
to penalize the party for failing to do what it cannot.
A sanction serves to redress a party’s misconduct which
interferes with the Board’s processes and the cause of justice,
and to discourage similar misconduct in the future. In the
absence of misconduct, a sanction neither is warranted nor
appropriate. Accordingly, any decision about the imposition of
sanctions must take into account both the party’s intent and its
ability to comply with the subpoena.
Although the government’s brief does not explicitly accuse
the Respondent of spoliation of evidence or of a contumacious
refusal to turn over subpoenaed records in its possession, the
brief includes language which arguably might imply such a
claim. For example, in the passage quoted above, the General
Counsel stated “the Board has long held that Respondent may
not use relevant evidence it refused to produce pursuant a
properly issued subpoena to prove its case.”
The brief’s use of the word “refused” rather than “failed”
suggests that the General Counsel is accusing the Respondent
of a refusal, an intentional act. However, during the hearing,
the General Counsel explicitly disavowed, on the record, that
he was accusing the Respondent of acting deliberately:
MR. BROWN: Your Honor, with all due respect, I am
not impugning the integrity of the Company. I am not
saying this matter was willful. I don’t know. But I am not
making that allegation. I’m simply saying that it seems to
me under the law, if it’s subpoenaed, they have an obliga-
tion to produce it or to at least explain, you know, why it
was not produced.
In fact, the Respondent did explain why the audit tickets were
not produced: Respondent does not make a practice of
keeping them. This explanation is quite plausible and fully
consistent with the record. Because the General Counsel is
not accusing the Respondent of willful misconduct, and
because the evidence certainly would not support such an
accusation, I do not believe it appropriate to impose a
sanction.
The General Counsel also argues that I should draw an
adverse inference from the Respondent’s failure to furnish the
subpoenaed audit tickets. Although drawing an adverse
inference may be characterized as a sanction, it also serves an
evidentiary purpose by compensating for an unexplained deficit
of documents or absence of a witness in circumstances which
reasonably would create an expectation that the documents
would be produced or a witness would be called. Thus,
drawing an adverse inference might be appropriate even in
some circumstances where there is no accusation of
misconduct.
However, although misconduct is not a prerequisite to
drawing an adverse inference, circumstances must be
sufficiently abnormal to justify a departure from the bedrock
principle that facts must be proven by evidence. No such
circumstances exist here.
The Act does not require the Respondent to keep audit
tickets and the record does not indicate that any law or
regulation imposes such an obligation. Moreover, no evidence
suggests that the Respondent has a practice of doing so.
Considering the number of drink audits conducted, it would
surprise me more if the Respondent did save such slips,
particularly in an era which relies on computer drives rather
than shoe boxes to store information.
As quoted above, Stepp testified that when she discovered
the discrepancy, she printed out Massey’s “receipt that she
would take to the table” and gave it to the manager. The
Respondent’s computer did preserve this data and a copy of that
receipt is in evidence. In these circumstances, drawing an
adverse inference would be unwarranted and I decline to do so.
Respondent previously had warned Massey that she should
log the drink order in the computer before bringing the
beverage to the customer. On October 22, 2011, which was
well before the formation of the Union or the beginning of the
union organizing campaign, Massey had received a written
warning for failure to ring in drinks before serving them. The
“Employee Counseling Report” noted that she and other servers
had been “VERBALLY WARNED ABOUT THE
CONSEQUENCES OF NOT RINGING IN DRINKS” and then
repeated those consequences in capital letters: “IF THIS
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD476
INSTANCE HAPPENS AGAIN WILL RESULT IN
DISCHARGE.”
Several employee witnesses referred this policy and the
record leaves no doubt that Respondent took it seriously.
Employee Daniel testified that management reminded
employees of the policy once a week:
Q. Okay. Did Will Lawrence ever give you a remind-
er, a verbal reminder after he told you what the policy
was?
A. Oh, yes. It was I mean every Friday or Saturday
night we would gather together, all the servers, at the be-
ginning of the shift, and that was given.
Massey admits that she violated the policy on the occasions
in question. However, the General Counsel argues that the
Respondent’s real reason for discharging Massey was her union
activity.
My analysis of whether the Respondent violated Section
8(a)(3) and (1) of the Act by discharging Massey is governed
by Wright Line, 251 NLRB 1083, 1089 (1980), enfd. on other
grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Under the Wright Line test, the General Counsel has
the initial burden of establishing that employees’ union activity
was a motivating factor in the Respondent’s taking action
against them. The General Counsel meets that burden by
proving union activity on the part of employees, employer
knowledge of that activity, and antiunion animus on the part of
the employer. See Willamette Industries, 341 NLRB 560, 562
(2004) (citations omitted). If the General Counsel makes this
initial showing, the burden then shifts to the Respondent to
prove as an affirmative defense that it would have taken the
same action even if the employees had not engaged in protected
activity. Id. at 563; Manno Electric, 321 NLRB 278, 280 fn. 12
(1996). See El Paso Electric Co., above.
The record clearly establishes that Massey engaged in union
activity which the Act protects. However, the credited evidence
does not prove that Respondent knew about that protected
activity at the time it discharged her. This evidence does
indicate that Manager Will Lawrence had become aware of the
union organizing campaign by sometime in May 2012, when he
asked employee Ballard to keep him informed. However, that
was after Massey’s discharge.
As discussed above, I find that very little union activity took
place during the first months of 2012 and tat Respondent was
unaware of it. Certainly, Respondent knew that Kevin Ballew
had come to the restaurant and created a disturbance, but it had
no reason to believe that Ballew had formed a union and was
trying to get Respondent’s employees to join it.
My finding that Respondent did not know about Massey’s
union activity when it decided to terminate her employment
necessarily means that such activity was not a motivating factor
in the discharge decision. Therefore, the General Counsel has
failed to make the initial showing required to shift the burden of
proceeding to the Respondent. Accordingly, the Respondent
need not show that it would have discharged Massey in any
event, notwithstanding her union activity.
The General Counsel argues that Respondent’s asserted
motivation for terminating Massey’s employment was
pretextual, and that the existence of a pretext constitutes
evidence of unlawful motive. To support the pretext argument,
the government asserts that other employees, notably Michelle
Reppe and Jennifer Kennedy, had violated the Respondent’s
“ring it before you bring it” rule twice without being discharged
for the second violation.
The General Counsel adduced testimony from a key
employee, Cheniece Porter, concerning drink audits she
conducted. According to Porter, she reported to management
on two separate occasions that Reppe had violated the rule but
continued to work for the Respondent even after the second
infraction.
Similarly, Porter testified that twice, she reported that
Kennedy had broken the rule, but that Kennedy continued to be
employed. However, apart from saying that she saw Reppe and
Kennedy at work after their second violations, Porter did not
know what discipline those employees had received.
Porter’s testimony does not convince me that Respondent
treated Massey disparately because it is unclear that Reppe and
Kennedy broke the rule to the same extent. During her drink
audits on April 19, 2012, Stepp observed Massey break the rule
not once but twice. At one of the tables, Stepp counted six
different glasses filled with either a soft drink or tea, rather than
the six glasses of water indicated by the computer. As noted
above, Massey already had received an earlier warning for
failing to follow the rule.
As described above, the Wright Line framework imposes an
initial evidentiary burden on the General Counsel, but this
burden does not require the government to prove that an
employer treated the employee more harshly than it had treated
other employees in the same situation. Rather, Wright Line
requires the General Counsel to establish that the employee’s
protected activities were a motivating factor in the employer’s
discipline decision. When an employee who had engaged in
union or other protected activities receives harsher punishment
than similarly situated employees who had not, it may be
logical to attribute the disparate treatment to the protected
activities.
However, drawing such an inference is logical only if the
decision maker knew about the protected activities. Where, as
here, the credited evidence does not establish that Respondent
knew about the employee’s union activity when it discharged
her, inferring unlawful motivation would involve more than
drawing a conclusion from facts in evidence; it would require
assuming a fact not in evidence.
In applying the Wright Line standard, the Board has held that
as part of his initial showing, the General Counsel may offer
proof that the employer’s reasons for the personnel decision
were pretextual. Pro-Spec Painting, Inc., 339 NLRB 946, 950
(2003) (citing National Steel & Shipbuilding Co., 324 NLRB
1114, 1119 fn. 11 (1997)). By “pretextual,” the Board means a
reason which is “either false or not in fact relied upon.” Rood
Trucking Co., 342 NLRB 895 (2004).
The evidence clearly establishes that Massey violated the
“ring it before you bring it” rule, so the reason given for her
discharge cannot be deemed “false” in the sense of untrue. Was
her violation of the rule “not in fact relied upon?” Because
Massey did, in fact, break the rule, the most likely reason for
COPPER RIVER OF BOILING SPRINGS, LLC 477
her discharge is the stated one, that she broke the rule. Even
was the evidence sufficient to establish that similarly situated
employees had received more lenient discipline, that disparity
only raises the possibility that another reason exists, but it does
not establish what that reason might be. Disparate treatment
would suggest that a respondent played favorites but it does not
indicate way.
Favoritism can have many causes, most of which do not
violate the Act. Assuming for the sake of analysis that the
record is sufficient to establish that Reppe and Kennedy
received more favorable treatment, the reason might have
nothing at all to do with Massey’s conduct. If the credited
evidence established that Respondent had knowledge of
Massey’s union activities, then logically, there would but
reason to suspect that disparate treatment had some relationship
to that knowledge. But here, credited evidence does not
establish knowledge
The General Counsel’s brief also raises some arguments
which go, essentially, to the “fairness” of the rule. For
example, the government argues that Massey was particularly
busy on this occasion and had little time to “ring in” the drink
order before taking it to the table. However, the General
Counsel cannot logically argue that because an action appears
to be unfair, it must therefore be evidence of unlawful motive.
The General Counsel also argues that Massey eventually
went back to the computer and entered the drink order, so the
customer received a bill which included the price of the drinks
and paid it. In this circumstance, the General Counsel
contends, “there was no legitimate reason to discharge her.”
Essentially, the government is arguing “no harm, no foul.”
Accepting that argument would require me to second guess the
wisdom of the rule as written. However, the Act gives me no
authority to substitute my judgment for the Respondent’s or to
sit as an arbiter of “fairness” in some abstract sense.
The General Counsel’s brief also contends that the restaurant
manager “failed to conduct a full and fair investigation.”
Although I do not agree with that conclusion, more
fundamentally, the Act does not require an employer to conduct
an investigation before imposing discipline.
The General Counsel further argues that the restaurant
manager, Josh Walker, displayed no interest in ascertaining the
facts at the time he told Massey she was discharged. The
government’s brief states:
During the termination meeting, when Massey attempted to
explain the events from the night before, Walker cut her off,
told her he didn’t believe her; and summarily terminated her.
(Tr. 108.) Walker presumably had already concluded that
Massey deliberately sought to cheat the Respondent out of the
cost of the drinks, or that she was trying to get extra tips even
though she was not accused of either infraction. [Tr. 373, 374,
376.] The April 19 termination document was clearly
prepared prior to the meeting. [Tr. 107, 108.] [GC Exh. 7.]
However, uncontroverted evidence establishes that only one
person, Respondent’s chief executive officer, has authority to
discharge an employee. Walker, the restaurant manager, only
brought the news. Nothing about the termination meeting
suggests that an unlawful reason was a motivating factor in the
decision to discharge Massey.
For all these reasons, I recommend that the Board dismiss
the allegations that Respondent’s discharge of Massey violated
Section 8(a)(3) and (1) of the Act.
Discharge of Autumn Ballew
Complaint paragraph 13(a) alleges that Respondent
discharged employee Autumn Ballew on July 17, 2013.
Respondent admits that it discharged Ballew, but states that it
did so on July 16, 2013, rather than the next day. Respondent
denies the related complaint allegations that the discharge of
Ballew violated Section 8(a)(3) and (1) of the Act.
Ballew began work for Respondent as a hostess in 2007. For
the last 2 years of her employment, she worked as a bartender.
In mid-July 2012, about a week before Ballew’s discharge, a
customer complained about her to the hostess on duty. The
customer, Nicholas Soria, was a “regular” who came to
restaurant two or three times a week. Soria credibly testified
that he told the hostess “that your bartender keeps disappearing.
She’s not serving the customers. She keeps walking away, and
I understand there’s a long walk from the bar to the kitchen area
to pick up food, but this was longer than usual.”
The hostess with whom Soria spoke, Megan Scherbarth,
corroborated his testimony:
He was aggravated as to the service he was receiving. I asked
him what had happened, and he said he was sitting there for a
good amount of time and that she, Autumn, was texting on her
phone rather than serving the customer, and that he didn’t
expect special treatment but he did expect to be treated as a
normal customer and he didn’t feel like he was. He felt like
he was being ignored. He also asked me to tell my manager
this.
Several days later, when Soria returned to the restaurant, he
spoke with Manager Lawrence about the matter. According to
Soria, he told the manager that Ballew “was disappearing from
the bar area, taking her time serving the drinks and food.”
Lawrence’s testimony about this conversation is consistent
with Soria’s. Lawrence also identified a note he had made
shortly after speaking with Soria. This note states, in part, as
follows:
On Wednesday 7/11 the bar guest, Nick, was back at the bar. I
approached him and apologized for missing him the other day
when he wanted to talk to me. He said it was no big deal he
just had a problem. I told him it was a big deal to me and we
walked outside on the patio to discuss his problem. He told
me that every time Autumn works he and several of the guests
are neglected. He said that she comes in gets on her cell
phone, eats behind the bar and ignores the guests. I
apologized to him for the bad service he had received and
thanked him for bringing it to my attention.
During this same time period in early July 2012, Ballew was
experiencing other work-related problems. She received a
warning for being late to work and a warning for violating a
work rule requiring employees with tattoos to cover them so
that they weren’t visible to customers.
Another bartender, Rebecca Mahan, testified that after
Ballew attended a counseling session, she returned to the bar
and said to some regular customers “Fuck Copper River.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD478
Mahan further quoted Ballew as saying, in the presence of
customers, “I don’t like this place. The managers are stupid. I
don’t know why I have to cover up my tattoo. It’s not
offensive.”
For reasons discussed further below, I conclude that Mahan
was a truthful witness and that her testimony is reliable.
Crediting it, I find that Ballew made the comments Mahan
attributed to her.
Additionally, it may be noted that the General Counsel has
not contended that Ballew made these remarks in the course of
protected activity. If, for example, Ballew had been discharged
because of intemperate exclamations while on a picket line, the
lawfulness of the discipline would need to be analyzed under a
framework different from Wright Line. See, for example, E. W.
Grobbel Sons, Inc., 322 NLRB 304 (1996); NLRB v. Burnup &
Sims, 379 U.S. 21 (1964). However, from all the circumstances,
I conclude that Ballew was not engaged in union or concerted
activity when she said “Fuck Copper River” and called the
managers “stupid.”
Mahan informed management about Ballew’s outburst and
also memorialized the incident in a two-page handwritten note
which also described another problem with Ballew’s work.
According to Mahan, Ballew had a practice of giving customers
free drinks. Mahan’s note explained that Ballew’s actions
placed other bartenders, such as herself, in an awkward position
when customers asked them for free drinks as well. Mahan’s
note continued as follows:
Whenever working with her she often dispears [sic] from
behind the bar for long periods of time when we are busy.
She also takes smoke breaks in car during almost every shift.
Last week she got written up for being late and having her
tattoo showing. She came out of the office and behind the bar
in a horrible mood saying stuff to regulars like, “fuck Copper
River this place is stupid” and “the managers are horrible.”
Not only is it uncomfortable for me and other bartenders to
work with but guests even regulars don’t enjoy her constant
complaining. It’s not a positive environment for anyone,
especially if they are new guests and hear her comments.
The note continued with more details of Ballew’s conduct
followed by Nahan’s opinion that Ballew was “very
unprofessional and has caused so much tension behind the bar.”
Mahan gave the note to Manager Lawrence.
The restaurant manager, Josh Walker, contacted
Respondent’s vice president and chief operating officer,
Stephen Jackson. By telephone, they discussed her past
instances of discipline, Soria’s complaint against Ballew and
the “Fuck Copper River” exclamation she made in front of
customers.
Jackson then contacted Respondent’s chief executive officer,
Albert D. Angell. After a discussion, Angell directed that
Ballew be discharged. The restaurant manager, Walker, then
told Ballew that her employment was terminated. He also
prepared an “Employee Counseling Report” memorializing the
discharge. It included the following statement of reasons for
the termination (with capitalization as in the original):
AUTUMN IS BEING WRITTEN UP FOR THE
FOLLOWING REASONS: SHE HAS BEEN WRITTEN
UP IN THE PAST FOR BEING LATE, NO CALL NO
SHOW 3/8,3/11, BAR SHORTAGES 12/1, BAR MISS
RINGS 10/8, FAILURE TO CLOCK OUT 3/S, 3/7,4/2,
FAILURE TO CLOCK IN OR OUT 3 OUT OF 4 SHIFTS
ON PAYROLL 5/286/10.
ON 7/11 A BAR REGULAR HAD A GUEST COMPLAINT
ABOUT AUTUMN THE GUEST SAID ON A REGULAR
BASIS THAT AUTUMN NEGLECTED HIM AND
OTHER BAR GUEST. THE GUEST SAID SHE WOULD
COME IN. TEXT ON HER CELL PHONE AND THE
WOULD EAT IN FRONT OF THEM AND IGNORES THE
GUEST.
ON 7/6 AUTUMN WAS COUNCELED ON FAILURE TO
CLAIM TIPS AND NOT CLOCKING OUT OR IN 3 OUT
OF 4 SHIFTS AFTER SHE WAS COUNCELED AUTUMN
GOES TO THE BAR TALKING TO REGULARS SAYING
“FUCK COPPER RIVER THIS PLACE IS STUPID” AND
THE MANAGERS HERE ARE HORRIBLE”
WITH THESE LAST SEVERAL INSTANCES THAT
AUTUMN HAS HAD AT COPPER RIVER GRILL WHICH
HAS LEAD TO GUIDELINES FOR DISCIPLINE AND
DISCHARGE #4 Insubordination to a manager or lack of
respect and cooperation with fellow employees or guest. This
includes displaying a negative attitude that is disruptive to
other staff or has a negative Impact on guests.
walker
When Ballew testified, she did not deny making the “Fuck
Copper River” remark at work and in the presence of
customers. The closest she came to such a denial is the
following testimony, about her discharge interview with
Manager Walker, which she gave on direct examination by the
General Counsel:
Q. And what did Mr. Walker say to you?
A. He told me that I was being fired for being three
minutes late one day, for showing my tattoo, for being
caught on the patio smoking, and for a customer com-
plaint.
Q. Did he say what the customer complaint was?
A. He said that I said “Fuck Copper River” in front of
a customer.
Q. That you said “Fuck Copper River” in front of the
customers?
A. Correct.
Q. Okay. And did he did you respond in any way?
A. Yes, I did.
Q. What did you say?
A. I explained the three minutes late, that I was sick
that day. I was already at work on time; I was just sick in
the bathroom, is why I clocked in late.
Q. Okay.
A. I explained that I had my tattoo covered up with
bandaids. The smoking thing never happened, so of
course I denied it. And then the customer complaint I
knew nothing about.
Q. And did you deny making that statement?
COPPER RIVER OF BOILING SPRINGS, LLC 479
A. Yes, I did.
As noted above, my observations of the witnesses leave me
uneasy about the reliability of Ballew’s testimony. An
inaccuracy in her testimony, quoted above, adds to those
doubts. According to Ballew, Walker said she was being fired
for several reasons, including a “customer” complaint and
explained that she had said “Fuck Copper River” in front of a
customer. This testimony conflates two separate incidents.
The customer complaint did not concern language Ballew
used but rather her absence from her work area and her failing
to perform her job duties. That was entirely separate from her
“Fuck Copper River” outburst. The discharge document
prepared by Walker states that Ballew had made the “Fuck
Copper River” remark on July 6, 2012, and that the customer
had complained about Ballew texting on her cell phone rather
than serving customers on July 11, 2012. Ballew’s failure to
recall the separate customer complaint concerning her failure to
perform her job duties reinforces my impression that her
apparent lack of interest in her work duties reflected a more
general inattentiveness.
Beyond my general doubts about Ballew’s testimony, I am
skeptical about her claim that she told Walker that she did not
make the “Fuck Copper River” statement. Her testimony on
this point was unconvincing.
In the testimony quoted above, right after the General
Counsel repeated, and Ballew confirmed, that Walker had
accused her of saying “Fuck Copper River” in front of
customers, the General Counsel asked Ballew what was her
response. Ballew’s answer to that question was not quite what I
would have expected.
According to Ballew, during the discharge interview Walker
cited a number of reasons for her termination. All of these
work-related problems certainly were nontrivial, but the “Fuck
Copper River” remark stands out as the elephant in the room,
demanding attention and, if possible, denial. The remark’s
dramatic starkness and obvious impropriety would put it at the
top of the list of accusations to be contested, and likely would
evoke an immediate, emphatic denial by someone innocent.
Yet when the General Counsel asked Ballew a nonleading
question—”What did you say?”—her answer focused on the
mice and ignored the elephant.
She testified that she told Walker that she really had not been
late on a particular occasion but had been in the bathroom. She
also told Walker that she had not violated the “no visible tattoo”
rule because her tattoo had been covered with a bandage.
Ballew further testified that “smoking thing never happened, so
of course I denied it.”
However, Ballew did not volunteer any similar testimony to
the effect that the “Fuck Copper River” remark never happened
and so she denied it. Ballew’s brief answer to a follow-up
question indicated that in the interview with Walker she had
denied making the “Fuck Copper River” remark, but Ballew
provided no specifics as to what she actually had said to
Walker. Without such details, my doubts are undispersed.
Moreover, even if she did tell Walker that she had not made
the “Fuck Copper River” remark, such a denial does not rise to
the level of a denial under oath, on the witness stand. Ballew’s
testimony does not include an explicit, unequivocal denial that
she made the “Fuck Copper River” remark in the presence of
customers. Her September 6, 2012 affidavit, which is in
evidence, also does not include such a denial.
Additionally, I credit the testimony of Rebecca Mahan that
Ballew did say “Fuck Copper River” in an outburst in front of
customers. At the time of hearing, Mahan no longer was
working for Respondent. Although she had worked at Copper
River Grill while in college, she had completed her education
and had embarked on a nursing career. Thus, the outcome of
this case would be of little consequence to her and unlikely to
affect her testimony.
On cross-examination, Mahan was questioned about an error
in her pretrial affidavit and about minor differences between
her affidavit and other evidence. Her demeanor, and her
willingness to admit the mistake, bolstered my conclusion that
her testimony is reliable and should be credited. Therefore,
notwithstanding any denial Ballew may have given Walker
during the termination interview, I find that she made the
statements and engaged in the actions which Mahan attributed
to her.
Again, I will use the Board’s Wright Line framework to
determine whether Respondent’s discharge of Ballew violated
the Act, as alleged. As discussed above, under Wright Line, the
General Counsel has the initial burden of establishing that
employees’ union activity was a motivating factor in the
Respondent’s taking action against them. He can satisfy his
burden by showing that (1) the employees engaged in union
activity; (2) the employer had knowledge of that union activity;
and (3) the employer bore animus toward the employees’ union
activity. Vision of Elk River, Inc., 359 NLRB 69 (2012), citing
Camaco Lorain Mfg. Plant, 356 NLRB 1182, 1184–185
(2011).
The government has proven that Ballew engaged in union
activity. However, the credited evidence fails to establish that
Respondent’s officials who made the discharge decision knew
she had engaged in any union or protected activity.
The three officials who recommended, made, and effectuated
the decision to terminate Ballew’s employment—Jackson,
Angell, and Walker—all denied having any knowledge of
Ballew’s activities at this time. Based on my observations of
the witnesses, I conclude that their testimony is reliable and I
credit it.
However, this finding, that the management officials who
made the decision to discharge Ballew were unaware of her
union activity, must be reconciled with another finding. Above,
I found that Manager Lawrence learned about the union
organizing drive sometime in May 2012. Respondent has
admitted that Lawrence is its supervisor and agent. Applying
agency law principles, the Board ordinarily would attribute to
Respondent the knowledge which Lawrence possessed.
Board precedent does not require direct evidence that the
manager who took an adverse employment action against an
employee personally knew of that employee’s union activity.
Rather, the Board imputes a manager’s or supervisor’s
knowledge of an employee’s union activities to the decision
maker, unless the employer affirmatively establishes a basis for
negating such imputation. Vision of Elk River, Inc., above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD480
Thus, in State Plaza Hotel, 347 NLRB 755 (2006), a
supervisor, Aouli, left his employment with a company just a
day after Aouli had learned about an employee’s protected
activity. Nonetheless, the Board imputed Aouli’s knowledge to
the higher-level manager, Rish, who made the decision to
discharge the employee. The Board stated:
It is true, as the dissent notes, that the Board does not impute
knowledge of protected activity in the face of credited
contradictory testimony. However, for whatever reason, the
Respondent here chose not to present Rish to testify that he
did not receive word from Aouli.
347 NLRB at 757.
In the present case, unlike State Park Hotel, the
Respondent’s chief operating officer and its chief executive
officer—the management officials who, respectively,
recommended and authorized Ballew’s discharge—took the
witness stand and denied having knowledge of her protected
activities. The store manager who discharged Ballew also
denied knowing about her union activities at the time.
Based on my observations of the witnesses, I have concluded
they were telling the truth and have credited their testimony.
Therefore, I do not impute Lawrence’s knowledge of the union
organizing drive, or of Ballew’s role in it, to the Respondent or
to its officials who decided to terminate Ballew’s employment.
Frankly, I do not find it surprising that Lawrence would not
communicate to higher levels what he had learned about the
union organizing drive. If the effort had appeared to have had
any realistic chance for success, I suspect that Lawrence would
have let his superiors know about it. However, Ballew had
alienated some of her fellow employees by doing things which
made their work more difficult, such as “disappearing” while
on duty, which meant that other employees had to finish what
she had left undone. Her influence on other employees might
well have seemed nil.
Moreover, the record suggests that both in May 2012, when
Lawrence learned about it, and also in mid-July, when Ballew
was discharged, the union organizing effort had about as much
energy and visibility as a bear hibernating in a cave. The
penultimate signature on the union petition bore the date March
20, 2012. More than 3 months then elapsed before the final
signature on July 1, 2012. Of course, the dates of signatures on
the petition hardly provide an exact measure of union activity,
but other evidence does not contradict the impression that such
activity had slumped into dormancy well before Ballew’s
discharge.
In sum, crediting the testimony of Jackson, Angell, and
Walker, I find that they were not aware of Ballew’s union
activities at the time of the decision to discharge her.
Therefore, I conclude that the government has not proven this
element which is necessary to carry its initial burden.
The Wright Line analysis therefore ends at this point, with
the conclusion that the General Counsel has not proven that
Respondent’s discharge of Ballew violated Section 8(a)(3) and
(1) of the Act. However, I would note that the credited
evidence also fails to establish the third element which the
General Counsel must prove, that Respondent bore antiunion
animus towards Ballew.
The General Counsel’s brief argues that Respondent treated
Ballew more severely than two other employees. Although the
Wright Line analysis ended before the point at which evidence
of disparate treatment would but evaluated, it may be helpful to
address the General Counsel’s argument briefly. The General
Counsel’s brief stated:
A. Ballew . . . stated that she was present when a kitchen
employee, whose name she knew only as Drago, got into a
loud heated argument with a manager during 2012. [Tr. 167–
168.] She stated that the two men cursed each other back and
forth and were so loud that customers even complained about
the profanity. [Tr. 167–168.] She was at the bar when this
incident took place. The bar is approximately 20 to 30 feet
from the kitchen area where the confrontation took place. She
stated that Drago was not disciplined as a result of this
incident. [Tr. 168.] She further testified that she had never
received a complaint about using profanity in the presence of
a customer. (TR 169) To the contrary, the evidence shows that
in addition to the Drago incident, Respondent has allowed at
least one other employee to continue their employment after
use of profanity in such a manner. [GC Exh. 16.] In this
regard, employee Ashley Albrecht called a customer an
“asshole” and the profanity was overhead by a manager, yet
she was only issued a written warning. [Tr. 356, 357.] [GC
Exh. 16.] Walker admitted that while the offending comment
was heard by a manager, it was loud enough that it could have
been heard by a customer. (Tr. 357, 358) Walker stated that
Albrecht was merely issued a written warning and was not
discharged. [Tr. 357, 359.] [GC Exh. 16.]
Although the brief refers to an employee named “Drago,” the
name appears as “Draco” in the transcript of Ballew’s
testimony and I will follow that spelling. Ballew could not
remember the name of the manager with whom Draco
reportedly argued.
Because of my doubts about the reliability of Ballew’s
testimony, I am reluctant to take her report of the Drago
incident at face value. As discussed above, her testimony
tended towards the imaginative and the melodramatic, which
raises some doubt about how loud and vehement the argument
really had been. It also concerns me that Ballew, who had been
working at the restaurant for at least 4 and possibly 5 years
when this shouting match supposedly occurred, could not
remember the name of the manager who participated in it. An
employee would be particularly likely to remember the name of
a person in authority who loudly cursed another worker because
that manager potentially could aim his venom in the employee’s
direction. The mind instinctively would file such information
in the “watch out for” category and hold onto it.
However, even if the incident took place as Ballew
described, the participation of the supervisor in the shouting
match made it a much different situation from Ballew’s
outburst in front of customers. Moreover, and quite
significantly, Ballew did not testify that Draco made any
comment equivalent to “Fuck Copper River,” disparaging the
restaurant itself in front of customers.
As to the Albrecht matter, I likewise am not persuaded that
the situations are similar. Calling a customer a vulgar epithet in
COPPER RIVER OF BOILING SPRINGS, LLC 481
front of a manager is not the same as using an even more
offensive expression to refer to the employer in the presence of
customers.
Moreover, in Ballew’s case, a number of job-related
performance problems came to management’s attention at the
same time. The two most serious—her neglecting customers to
text on her cell phone, without even concealing herself from the
customers’ view, and her “Fuck Copper River” remark—came
within 5 days of each other. Ballew had demonstrated not a
single instance of unsatisfactory performance but an ominous
pattern of such incidents.
Thus, even if the credited evidence established that
Respondent’s management knew about Ballew’s protected
activities, the evidence cited to establish disparate treatment is
insufficient to prove antiunion animus. No other credited
evidence indicates that animus was a motivating factor in the
decision. Accordingly, the General Counsel has not carried his
initial burden. I recommend that the Board dismiss the
allegations that Respondent unlawful discharged Autumn
Ballew.
There is one other matter related to Ballew’s discharge which
should be addressed. In the General Counsel’s posthearing
brief, the government moved to amend the complaint to allege
another theory regarding why Respondent’s discharge of
Ballew violated the Act. The brief states:
During the hearing, Walker acknowledged that A. Ballew was
discharged pursuant to work rule 4, cited above. [Tr. 354.]
[GC Exh. 2.] As detailed above, work rule 4 is overly broad
and, therefore, violative of Section 8(a)( 1) of the Act. In this
connection, the Board has determined that where such an
overly broad rule is applied to restrict the exercise of Section
7 rights, any discipline issued pursuant to such a work rule is
similarly violative of the Act. See Ridgeview Industries, 353
NLRB 1096, 1114 (2009).
Respondent’s work rule 4 prohibits “a negative attitude that is
disruptive to other staff or has a negative impact on guests.”
[GC Exh. 2.] On its face, the rule is subject to a reasonable
interpretation by employees that it prohibits Section 7
activities. . . . In its discharge notice to A. Ballew, Walker
wrote that in violating work rule 4 she displayed a “negative
attitude that is disruptive to other staff or has a negative
impact on guests.” [R. Exh. 10.] This wording clearly refers
to the prohibition of protected activity and is violative of
Section 8(a)(1) of the Act. Respondent’s discharge of A.
Ballew, pursuant to an unlawfully overbroad work rule, is
therefore violative of Section 8(a)(3) of the Act.
To be sure, A. Ballew’s termination pursuant to work rule 4
was not specifically alleged in the Consolidated Complaint as
it is merely another theory of a violation. However, in an
abundance of caution, Counsel for Acting General Counsel
asserts that A. Ballew’s termination pursuant to the overly
broad rule is closely related to her termination which is
alleged in the Consolidated Complaint. Moreover, the matter
was fully litigated, and, accordingly, we move to amend the
Consolidated Complaint at this time to include the allegation
that A. Ballew was terminated pursuant to Respondent’s
overly broad work rule 4, as an independent violation of
Section 8(a)(1) and (3) of the Act. [Emphasis added.]
First of all, the government should take more care to describe
the facts correctly. The work rule in question does not prohibit
“a negative attitude,” as the General Counsel’s brief states, but
rather prohibits displaying a negative attitude, and it prohibits
only such displays that are disruptive to staff or have a negative
impact on guests.
Second, the General Counsel’s brief cites Ridgeview
Industries, above, a case which is not a valid precedent because
decided by a two-member Board. See New Process Steel, L.P.
v. NLRB, above.
Third, under extant precedent, the rule in question is lawful
as written. See Lutheran Heritage Village-Livonia, above.
Fourth, the rule’s obvious purpose is to prevent incivility and
rudeness to other employees and guests. To argue that this rule
cannot be applied when an employee says “Fuck Copper River”
in the presence of employees and guests is absurd.
Fifth, Section 102.17 of the Board’s Rules and Regulations
provides that, at the hearing stage, complaint may be amended
by the administrative law judge upon motion. Section 102.26
provides that a motion shall become part of the record.
However, the record, as defined in Section 102.45(b), does not
include briefs to the administrative law judge.
A motion should be filed, and served, as a separate
document, to place the other parties on clear notice and afford
them opportunity to respond. Finding it lacking in merit, I deny
the General Counsel’s motion to amend the complaint.
Complaint Paragraph 13(b)
Complaint paragraph 13(b) alleges that beginning about May
2012, Respondent? the work hours of and provided fewer
closing shifts to its employee Ballew. The complaint elsewhere
alleges that this alleged decrease in work hours and closing
shifts violated Section 8(a)(3) and (1) of the Act. Respondent
denies these allegations. The General Counsel’s brief described
these allegations, in part, as follows:
After being observed with K. Ballew and Massey on the patio
as they solicited support for the Union from another
employee, A. Ballew stated she noticed a change in
Lawrence’s behavior toward her. [Tr. 147.] She testified that
he became more hostile toward her and refused to respond to
her when she had questions. [Tr. 147.] More significantly, she
stated that her work hours were reduced and she received
fewer closing shifts. [Tr. 147.] This reduction in hours and
closing shifts resulted in A. Ballew receiving less
compensation. [Tr. 147.] In this regard, A. Ballew stated that,
starting in May, her compensation in wages and tips was
reduced from approximately $300.00 per week down to about
$40.00 per week. [Tr. 148.]
To establish these allegations, the government relies on
Ballew’s testimony and time records showing the hours she
worked. However, this evidence fails to prove the alleged
discrimination because management based its scheduling
decisions on when Ballew said she would be available to work
and she had reduced her availability during this time period.
When Respondent cross-examined Ballew, she admitted that
she had informed management that she wouldn’t be available
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD482
for work during certain times, and those periods were blacked
out on the scheduling sheets. Examining those sheets, she
identified instances in which she wasn’t scheduled for work
after informing management that she would not be available for
work at those times, and instances in which she was scheduled
for work consistent with her availability:
Q So on Friday, which would be a normal work shift,
you requested to be off, correct?
A. I did.
Q. And on Saturday which would be your requested
shift, you requested to be off?
A. Yes.
Q. Sunday, you requested to be off?
A. Yes.
Q. All right. The following week on Tuesday 6/12,
which would be a normal work schedule shift, you re-
quested to be off, correct?
Correct.
Q. And on Friday 6/15, which would be a normal work
shift for you, you requested to be off, didn’t you?
A. Correct.
Q. And on Saturday, which would be a normal shift
that you would work, you requested to be off, correct?
A. I was on vacation that whole week, yes.
Q. All right. And on Sunday, which would be a nor-
mal shift, you requested to be off?
A. Yes.
Q. All right. The following week, 6/19, Tuesday,
you’re scheduled for a closing shift, correct?
A. That’s correct.
Q. And then you’re not scheduled on Friday, but
you’re scheduled on Saturday, correct?
A. Correct.
Q. Then the next week, 7/2, do you see this?
A. Uhhuh.
Q. And on Tuesday, 7/3, you’re scheduled for your
Tuesday shift, correct?
A. Uhhuh.
Q. And you’re scheduled for your Friday shift, cor-
rect?
A. Correct.
The manager in charge of the restaurant, Josh Walker,
credibly testified that Ballew “would constantly change her
availability for work.” As noted above, my observations of the
witnesses lead me to conclude that Walker’s testimony is
reliable. Moreover, in view of other evidence concerning
Ballew’s work behavior, the testimony is quite plausible.
Based on Walker’s credited testimony, I find that Ballew often
changed the dates and times on which she would be available
for work.
Section 8(a)(3) of the Act prohibits an employer from
discrimination that encourages or discourages union
membership. To establish a violation, the government must
both plead and prove an act of discrimination “in regard to hire
or tenure of employment or any term or condition of
employment.” See 29 U.S.C. § 158(a)(3). Here, the relevant
term or condition of employment is being scheduled to work or
in being scheduled to work a closing shift.
In a typical case, an employee’s availability for work is
simply presumed and does not become an issue. In the present
case, it cannot be taken for granted. Credited testimony
establishes that Ballew changed her availability often.
However, the General Counsel has not identified a particular
instance in which the evidence establishes that Ballew was
available for work but was not placed on the schedule. The
General Counsel’s brief states:
With respect to A. Ballew’s loss of work hours and loss of
closing shifts, the documentary evidence clearly demonstrates
the factual basis for this allegation. [GC Exh. 12.] In this
regard, a comparison of “Amber’s” and A. Ballew’s
scheduled shifts, during the period of May through July,
shows that A. Ballew received barely half the hours of her
junior counterpart. [Tr. 149, 154.] [GC Exh. 12.]
This argument does not take into account the fact,
established by reliable evidence, that Respondent scheduled
bartenders for work based upon their stated availability for
work. Making a meaningful comparison would require not
only evidence about the information Ballew gave management
concerning her availability for work, but also the information
which “Amber” provided management concerning her own
availability for work. In the absence of such information, it
cannot even be concluded that the Respondent discriminated in
scheduling, let alone the reason for or legality of such a
decision.
Here, the General Counsel has not proven any instances of
discrimination. Absent such an adverse employment action,
any discussion of motivation takes the issue into the theoretical
realm of philosophy, where the rarified air gives judges altitude
sickness.
In view of my conclusion that the government has failed to
prove any instance of discrimination, any further discussion
may well be superfluous. Nonetheless, one other argument
raised by the General Counsel might warrant discussion. The
General Counsel’s brief states, in part, as follows:
The evidence reflects that when A. Ballew complained about
her work hours, Lawrence responded by stating, “Well, why
don’t you just quit?” [Tr. 156.] This threatening and coercive
statement proves the nature of Respondent’s hostility toward
A. Ballew’s union involvement and evidences its unlawful
motive and actions.
However, Ballew’s testimony concerning the supposed “why
don’t you just quit” remark does not indicate that it occurred
within any discussion of union activity or in any context which
would suggest a reference to such activity. Moreover, I do not
credit Ballew’s testimony but instead conclude, based on
Lawrence’s credited denial, that he never made such a
statement. In other respects, no credible evidence suggests that
antiunion animus entered into any decision regarding Ballew’s
work schedule.
For all of these reasons, I recommend that the Board dismiss
the unfair labor practice allegations related to complaint
paragraph 13(b).
COPPER RIVER OF BOILING SPRINGS, LLC 483
Complaint Paragraph 13(c)
Complaint paragraph 13(c) alleges that in about June 2012,
Respondent issued verbal warnings to its employee Ballew.
Respondent denies this allegation.
The General Counsel’s brief could be clearer in identifying
the conduct described in this complaint paragraph. It appears
that the government is referring to one of the reasons which
Walker gave, during the discharge interview, for the decision to
terminate Ballew’s employment. Ballew’s testimony about this
interview, quoted above, included that Walker “told me that I
was being fired for being three minutes late one day.” The
following passage in the General Counsel’s brief leads me to
believe that complaint paragraph 13(c) relates to this incident:
Likewise, the issuance of a verbal warning to A. Ballew for
being late also violates the Act for several reasons. First, the
evidence fails to show that A. Ballew was even aware that her
discussion with Lawrence constituted a formal verbal warning
under the Respondent’s progressive disciplinary procedure.
Second, to the extent that Respondent relied on the alleged
verbal warning as a factor supporting her later termination,
without specifically informing her that the warning existed,
demonstrates Respondent’s overall unlawful motive and
animosity toward A. Ballew. Finally, that A. Ballew was
present at the restaurant on the day in question and had only
clocked in three minutes late because she stepped away to use
the restroom, demonstrates that Respondent was grasping at
straws and looking for reasons to terminate her employment.
In this regard, to verbally warn an employee, who is actually
present at the facility, about her failure to timely clock in,
when the employee was simply using the restroom, clearly
evidences the unreasonableness of the Respondent’s actions
and direct animus toward A. Ballew. Notably, Respondent
failed to present evidence that other employees have been
verbally warned under similar circumstances.
The General Counsel misapprehends the situation. As part
of the discharge interview, Walker reviewed Ballew’s past work
performance, which included this incident. Certainly, it was
minor compared to the other problems, but it formed part of an
all too consistent and all too persistent pattern. It was one dot
among many which, when connected, created a picture of an
employee whose performance was sliding from unsatisfactory
to worse than unsatisfactory.
Moreover, Ballew admitted that she had, in fact, been late on
the day in question. Warning an employee who is late that she
should arrive on time does not violate the Act.
Therefore, I recommend that the Board dismiss the unfair
labor practice allegations related to complaint paragraph 13(c).
REMEDY
The record establishes one violation that a supervisor
requested that an employee keep him informed of
developments in the union organizing campaign. This violation
must be remedied by posting the notice to employees attached
hereto as appendix.
The General Counsel seeks an order requiring a management
official to read the Notice out loud to employees. This is an
extraordinary remedy reserved for extraordinary violations.
Chinese Daily News, 346 NLRB 906, 909 (2006). The
violation found here is not one of them. Accordingly, the usual
posting of the Notice will suffice.
CONCLUSIONS OF LAW
1.The Respondent, Copper River of Boiling Springs, LLC,
Boiling Springs, South Carolina is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The National Workers Association is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act when its
supervisor and agent asked an employee to keep him informed
about the union organizing drive.
4. Respondent did not violate the Act in any other manner
alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record in this case, I issue the following recommended1
ORDER
The Respondent, Copper River of Boiling Springs, LLC, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Asking employees to keep it informed about employees’
union and protected concerted activities.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights to self
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
facilities in Greenville, South Carolina, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on forms
provided by the Regional Director for Region 10, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In addition to physical posting of paper
notices, noticed shall be distributed electronically, such as by
email, posting on an intranet or internet site, and/or other
electronic means, if the Respondent customarily communicates

1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, these findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed
waived for all purposes.
2 If this Order is enforced by a judgment of the United States Court
of Appeals, the words in the notice reading “Posted By Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD484
with its employees by such means. J. Picini Flooring, 356
NLRB 11 (2010). In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees
employed by the Respondent at any time since May 1, 2012.
Excel Container, Inc., 325 NLRB 17 (1997).
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Regional Director attesting to the
steps that the Respondent has taken to comply.
Dated Washington, D.C. September 25, 2013
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your 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 interfere with, restrain, or coerce our employees
in the exercise of these rights, guaranteed to them by Section 7
of the National Labor Relations Act.
WE WILL NOT ask any employee to keep us informed about
employees’ union activities or other protected concerted
activities.
WE WILL NOT in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
COPPER RIVER OF BOILING SPRINGS, LLC