Gates & Sons Barbeque of Missouri, Inc.

National Labor Relations Board - Board Decisions

Sep 16, 2014

361 N.L.R.B. 563 (N.L.R.B. 2014)

GATES & SONS BARBEQUE OF MISSOURI, INC. 563
Gates & Sons Barbeque of Missouri, Inc. and Work-
ers’ Organizing Committee, Kansas City. Case
14–CA–110229
September 16, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On June 17, 2014, Administrative Law Judge Paul Bo-
gas issued the attached decision. The Respondent filed
exceptions and a supporting brief and the General Coun-
sel filed an answering brief.
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,1 and conclusions, to
amend the remedy, and to adopt the recommended Order
as modified.2
AMENDED REMEDY
We amend the judge’s remedy to provide that the
make-whole remedy shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), rather than with
F. W. Woolworth Co., 90 NLRB 289 (1950). The Ogle
Protection formula applies where, as here, the Board is
remedying “a violation of the Act which does not involve
cessation of employment status or interim earnings that
would in the course of time reduce backpay.” Ogle Pro-
tection Service, supra at 683; see also Pepsi-America,
Inc., 339 NLRB 986, 986 fn. 2 (2003).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Gates &
Sons Barbeque of Missouri, Inc., Kansas City, Missouri,
its officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).

(b) Make employees at the Main Street location whole
for any loss of benefits suffered as a result of the dis-
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order to conform to
the amended remedy, and we shall substitute a new notice to conform
to the Order as modified.
criminatory discontinuation of the free employee meal
benefit, in the manner set forth in the remedy section of
the judge’s decision as amended in this decision.

2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discontinue any of your benefits, or oth-
erwise discriminate against you, because you engage in a
protected strike or other protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL reinstate the free employee meal benefit.
WE WILL make you whole for any loss of benefits suf-
fered as a result of the discriminatory discontinuation of
the free employee meal benefit, plus interest.
GATES & SONS BARBEQUE OF MISSOURI, INC.

The Board’s decision can be found at
www.nlrb.gov/case/14–CA–110229 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.

361 NLRB No. 46

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 564
Michael E. Werner, Esq., for the General Counsel.
Willis L. Toney, Esq. and Carroll W. Cunningham, Esq. (Toney
Law Firm, LLC), of Kansas City, Missouri, for the Re-
spondent.
Fred Wickham, Esq. (Wickham & Wood, LLC), of Independ-
ence, Missouri, for the Charging Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Overland Park, Kansas, on March 18, 2014. The Workers’
Organizing Committee, Kansas City, filed the charge on July
31, 2013, and an amended charge on November 15, 2013, and
the Regional Director for Region 14 of the National Labor Re-
lations Board (the Board) issued the complaint on November
22, 2013. The complaint alleges that, on or about August 1,
2013, the Respondent violated Section 8(a)(1) by eliminating
its practice of providing free daily lunches to employees at one
of its locations because on July 30, 2013, nine employees at
that location ceased work concertedly and engaged in a protect-
ed strike.1 The Respondent filed a timely answer in which it
denied that it violated the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing findings of fact and conclusions of law.
FINDINGS OF FACT2
I. JURISDICTION
The Respondent, a corporation, operates a public restaurant
selling food and beverages in Kansas City, Missouri, where it
annually derives gross revenues in excess of $500,000, and
purchases and receives goods valued in excess of $5000 from
other enterprises located outside the State of Missouri. The
Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
1 At the start of trial, I granted the General Counsel’s unopposed
motion to amend the complaint to withdraw multiple other allegations
of wrongdoing.
2 In its brief, the Respondent makes certain factual assertions that
are not supported by the record before me. Instead the Respondent
attempts to support these allegations by referring to a “Shipley Affida-
vit,” which was not offered, or even mentioned, at trial and which the
Respondent has not submitted since the trial closed. In other words, I
simply do not have the purported affidavit. Even if the Respondent had
attempted to reopen the record to submit such an affidavit, I would be
disinclined to receive it since there is no readily apparent reason why an
affidavit from its own manager would have been in existence, but una-
vailable to the Respondent, at the time of trial. See Fite/Lucent Tech-
nologies, Inc., 326 NLRB 46, 46 fn. 1 (1998) (party seeking to reopen
the record must show, inter alia, the existence of “newly discovered
evidence” that existed at the time of trial but of which the moving party
was “excusably ignorant”). On May 1, 2014, the General filed a mo-
tion to strike the assertions in the Respondent’s brief that are based on
the purported affidavit that is not part of the record. I grant that motion
and give no weight to the purported Shipley affidavit or the representa-
tions based on it.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent operates six restaurants in the Kansas City,
Missouri area. The events involved in this case concern its
location on Main Street in Kansas City (the Main Street loca-
tion), where it employs approximately 30 individuals. During
the relevant time period, Colin Shipley was the manager of that
location, and Claudia Williams was a supervisor who reported
to him. Shipley reported to Raymond Boyice, area operations
manager, who in turn reported to George Gates, the Respond-
ent’s chief operating officer.
In addition to an hourly wage, the Respondent’s employees
at the Main Street store have received a number of benefits—
among them an employee lunch provided at no charge. The
employee lunch was only available during the shift when the
individual was working and consisted of one meat sandwich
and a side. This meal would cost approximately $6 to $10 if
the employee was required to pay for it. The lunch benefit was
continuously provided to employees at the Main Street location
from at least 2011 until the end of July 2013. The decision
about whether to grant this benefit was generally left up to the
managers at the location. The Respondent also allowed em-
ployees to make purchases on a “tab” that would then be de-
ducted from their paychecks.
Employees at the Main Street location were also able to col-
lectively qualify for a monthly monetary bonus based on the
location’s performance. The relevant performance factors in-
cluded the location’s earnings, the number of customer com-
plaints received, and the number of meals customers sent back.
The Main Street location consistently performed well as judged
by the bonus standards. For at least 8 consecutive months from
December 2012 through July 2013, the Respondent awarded
the monetary bonus to the work force at that location.
In July 2013, a number of employees at the Main Street loca-
tion participated in a campaign by food workers across Kansas
City to obtain higher wages. The charging party, the Workers’
Organizing Committee of Kansas City (WOC), assisted em-
ployees engaged in this effort. The Respondent’s employees
received starting wages marginally above minimum wage, and
the WOC campaign sought to approximately double that wage
to $15 per hour. As part of this effort, WOC helped organize a
1-day strike of food workers across Kansas City on July 30,
2013. A few days before the July 30 strike, Shipley met with a
group of three employees who had spoken with a WOC organ-
izer in the parking lot of the Main Street location the previous
day. Shipley warned these employees that if he found out that
they “had any part in the strike,” they would “feel [his] wrath.”
He told them that if they participated in the strike they “might
as well find another place of employment,” and that they would
be charged with a “no-call/no-show” and terminated. Shipley
also met with another employee and asked him if he was “fa-
miliar” with the phrase “either you are with me or you are
against me.” Then Shipley asked the employee whether he was
“with” the WOC, and warned, “If you are we can find ways to
get rid of you right now.”
On July 30, 2013, between 7 and 9 of the 30 employees of
the Main Street location, engaged in the planned 1-day strike.
On the morning of the strike, the Respondent was provided
with notice, signed by seven of its employees at the Main Street

GATES & SONS BARBEQUE OF MISSOURI, INC. 565
location, which stated that those employees were going on
strike as of 7:30 a.m. on July 30, that the strike would end at 12
a.m. on July 31, and that the employees were unconditionally
offering to return to work on the next scheduled shifts after the
strike. The notice stated that the employees were engaging in
this action “in support of better wages, benefits, and working
conditions; and to protest this Company’s interference with
protected workplace rights.”
On July 31, a number of employees who had engaged in the
strike the previous day appeared at the Main Street location for
their scheduled shifts. Boyice, who was present at the location,
was handed a notice stating that the employees were uncondi-
tionally offering to return to work. The Respondent told these
employees to go home because other employees had already
been assigned to their shifts for that day.
During the following week, the Respondent permitted the re-
turning strikers employees to resume their duties at the Main
Street location, but announced that it was discontinuing certain
employee benefits, including the free employee meals. The
employees learned of this by way of notices posted by the Re-
spondent at the location and also by word-of-mouth. One of the
notices that the Respondent posted at the Main Street location
stated: “There will be no employee meals, no loans, no tabs.
Don’t ask.” Prior to the strike, the Respondent had not told
employees that any of these benefits were in danger of being
discontinued. In addition, within a day or two after the strike,
Shipley added a handwritten notation to the employee schedule
that was posted at the facility. This notation read: “4 DAY
SCHEDULE WILL TURN INTO 3 DAY UNLESS
PERFORMANCE OR ATITUDE ABOUT JOB CHA[N]GES.
GET BETTTER OR GET AWAY!”
One of the returning strikers asked his supervisor, Williams,
why the Respondent was discontinuing benefits at the Main
Street location given that “we were like the best store at the
time as far as bonus . . . getting a lot of customers and stuff.”
Williams responded that “whatever Gates tells her to do, . . .
they have to do it, no questions asked.” The employee asked if
he could talk to Mr. Gates, and Williams replied: “You don’t
want to talk to him right now. He is feeling pretty sensitive.”
The employee asked for Gate’s phone number and Williams
replied, “9-1-1.” For approximately 2 months after the strike,
the Respondent denied employees at the Main Street location
the employee meal benefit. The benefit was reinstated, at least
for a time, after the Respondent reassigned Shipley to a differ-
ent location.
Shipley was not called as a witness by the Respondent.
However, after the Respondent completed its case, the General
Counsel called him as a witness. Shipley claimed that even
though the decision to discontinue the employee meal and other
benefits was not announced to employees before the poststrike
notices mentioned above, the decision itself was actually made
earlier in July, prior to the strike, during a meeting between
Shipley and the managers who worked for him.3 He stated that
3 Boyice testified that his “understanding” was that Main Street loca-
tion’s management had discontinued the lunch benefit during the week
of July 13—prior to the strike. I do not give this testimony any signifi-
cant weight since Boyice did not state what this “understanding” was
the decision was based on “customer complaints and product
complaints.” Shipley conceded, however, that he was not
aware of any documentation of this managers’ meeting or of
the decision being reached at that time. At first Shipley assert-
ed that he believed some of the complaints were in writing, but
when pressed he stated that he did not know if any were in
writing. At trial, the Respondent did not introduce any notes or
other writings corroborating Shipley’s claim that the decision to
discontinue benefits was made at a managers’ meeting before
the strike or that the decision was based on customer and prod-
uct complaints. Indeed, the poststrike notices that the Respond-
ent used to inform employees that the meal benefit was being
discontinued made no mention of complaints or store perfor-
mance. The Respondent did not call as witnesses any of the
managers who worked for Shipley, and who purportedly partic-
ipated in the managers meeting, to corroborate the claim that
the decision to discontinue the meal benefit was made at such a
meeting prior to the strike and for reasons other than the em-
ployees’ participation in the WOC campaign.
Analysis and Discussion
The General Counsel alleges that the Respondent violated
Section 8(a)(1) of the Act by discontinuing the free employee
meal benefit because employees ceased worked concertedly
and engaged in a protected strike. The Respondent denies this,
and asserts that the discontinuation of the benefit was motivated
by “the lack of employee performance and customer satisfac-
tion,” not any unlawful reason. The Board applies the Wright
Line framework to alleged violations of Section 8(a)(1) that,
like the one at-issue here, turn on employer motivation. Ameri-
can Red Cross Missouri-Illinois Blood Services Region, 347
NLRB 347, 349 (2006). Under the Wright Line analysis, the
General Counsel bears the initial burden of showing that the
Respondent’s decision to take adverse action against an em-
ployee was motivated, at least in part, by unlawful considera-
tions. 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied, 455 U.S. 989 (1982), approved in NLRB v.
Transportation Corp., 462 U.S. 393 (1983). The General Coun-
sel may meet this burden by showing that: (1) the employee
engaged in union or other protected activity, (2) the employer
knew of such activities, and (3) the employer harbored animosi-
ty towards the Union or other protected activity. ADB Utility
Contractors, 353 NLRB 166, 166–167 (2008), enf. denied on
other grounds, 383 Fed.Appx. 594 (8th Cir. 2010); Intermet
Stevensville, 350 NLRB 1270, 1274–1275 (2007); Senior Citi-
zens Coordinating Council, 330 NLRB 1100, 1105 (2000);
Regal Recycling, Inc., 329 NLRB 355, 356 (1999). Animus
may be inferred from the record as a whole, including timing
and disparate treatment. See, Camaco Lorain Mfg. Plant, 356
NLRB 1182, 1185 (2011). If the General Counsel establishes
discriminatory motive, the burden shifts to the employer to
based on, or when he arrived at it, or otherwise indicate that his testi-
mony on the subject was more than hearsay. At any rate, his under-
standing was contradicted by the firsthand accounts of employees at the
store who stated that they were receiving the benefit up until the strike,
and also to an extent by Shipley’s, and Boyice’s own, testimony that
employees were not told, until after the strike, that the benefit was
being discontinued.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 566
demonstrate that it would have taken the same action absent the
protected conduct. ADB Utility, supra; Intermet Stevensville,
supra; Senior Citizens, supra.
The General Counsel easily meets its initial burden. The ev-
idence shows that employees engaged in protected concerted
activity on July 30, 2013, by striking against the Respondent in
an effort to secure improved wages. California Gas Transport,
347 NLRB 1314, 1319 (2006) (“In the absence of special cir-
cumstances, a strike to secure higher pay is protected concerted
activity.”), enfd. 507 F.3d 847 (5th Cir. 2007). There is no
question that the Respondent was aware of this activity. The
Respondent received written notice that the employees were
striking for improved wages and at the time management an-
nounced the discontinuation of the employee meal benefit it
was aware that employees had participated in a strike on July
30. The General Counsel has also met the third and final ele-
ment of its initial burden by showing that the Respondent har-
bored animosity towards the protected strike activity. Shipley,
the store manager with authority to continue or discontinue the
meal benefit, told employees that if they participated in the
strike they would “feel [his] wrath,” “might has well find an-
other place of employment” and would be terminated. On a
separate occasion shortly before the strike, Shipley told another
employee that “you are with me or you are against me,” and if
you are “with” the WOC “we can find ways to get rid of you
right now.” These statements are more than sufficient to estab-
lish that the Respondent bore animosity towards the protected
strike activity, but the timing of the action makes the case even
stronger. The Respondent first notified employees that the
meal benefit was being discontinued immediately upon their
return to duties after the strike. There was no evidence that,
during the days or weeks prior to this notice, the Respondent
had told employees that a discontinuation of the meal benefit
was planned or even contemplated. This timing is extremely
suspicious on its own, and all the more so when viewed against
the backdrop of Shipley’s explicit threats to punish employees
who participated in the strike. LB&B Associates, Inc., 346
NLRB 1025, 1026 (2006) (fact that employer’s adverse action
against employee immediately followed employer’s knowledge
of that employee’s protected activity, supports an inference of
animus), enfd. 232 Fed. Appx. 270 (4th Cir. 2007); see also
Desert Toyota, 346 NLRB 118, 120 (2005), pet. for review
denied 265 Fed.Appx. 547 (9th Cir. 2008); Detroit Paneling
Systems, 330 NLRB 1170 (2000), enfd. sub nom. Carolina
Holdings, Inc. v. NLRB, 5 Fed.Appx. 236 (4th Cir. 2001); Beth-
lehem Temple Learning Center, 330 NLRB 1177, 1178 (2000);
American Wire Products, 313 NLRB 989, 994 (1994).
Since the General Counsel has met its initial burden, the bur-
den shifts to the Respondent to show that it would have taken
the same action even absent the employees’ protected strike
activity. ADB Utility, supra; Intermet Stevensville, supra; Sen-
ior Citizens, supra. I find that the Respondent has failed to
meet this burden. Shipley’s testimony was the only significant
evidence supporting the Respondent’s claim that the employee
meal benefit was discontinued on the basis of customer com-
plaints. Based on my consideration of Shipley’s demeanor and
testimony and the record as a whole, I find that this testimony
was self-serving and not at all credible. As discussed above,
the evidence showed that prior to the strike the Respondent did
not give employees any indication that the meal benefit was
about to be discontinued, or even in danger of being discontin-
ued. The notice that the Respondent posted after the strike to
announce the discontinuation of the meal benefit made no men-
tion of customer complaints or employee performance. The
Respondent offers no explanation for why, if the decision to
discontinue the meal benefit was made weeks before the strike
on the basis of customer complaints, management did not an-
nounce the decision until immediately after the strike and did
not mention performance problems when it made the an-
nouncement. The Respondent did not produce any documentary
evidence corroborating either the claim that the decision to
discontinue the free employee meal benefit was made at a man-
agement meeting weeks before the strike or that it was made
because of customer complaints. Indeed there was no docu-
mentary evidence of customer complaints during the months
leading up to the discontinuation, much less of an increase in
customer complaints that would explain why this existing bene-
fit was revoked immediately after the strike. I note, moreover,
that although Shipley claimed that the decision to cancel the
benefit was reached during a meeting with the managers who
worked for him, not one of those other managers was called as
a witness to corroborate his claim. Finally, Shipley’s assertion
that the meal benefit was revoked based on performance prob-
lems rings hollow given the evidence of historically good per-
formance at the Main Street location. The staff at that location
had been awarded monthly, storewide, performance bonuses for
at least 8 months straight, up to, and including, July 2013. For
these reasons, the Respondent’s contention that it would have
discontinued the employee meal benefit even absent the em-
ployee’s protected strike activity does not withstand scrutiny.
For the reasons discussed above, I conclude that the Re-
spondent violated Section 8(a)(1) by discontinuing the employ-
ee meal benefit on or about August 1, 2013.
CONCLUSIONS OF LAW
1. The Respondent has engaged in an unfair labor practice
affecting commerce within the meaning Section 8(a)(1) and
Section 2(6) and (7) of the Act, on or about August 1, 2013,
when it discontinued the free employee meal benefit at its Main
Street location because employees there engaged in protected
activity by concertedly ceasing work and engaging in a strike.
2. The Respondent violated Section 8(a)(1) of the Act by
discontinuing the free employee meal benefit at its Main Street
location because employees there engaged in protected activity
by concertedly ceasing work and engaging in a strike.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. In particular the Respondent should be
required to reinstate the free employee meal benefit at the Main
Street location and make employees whole for the period dur-
ing which they were unlawfully denied this benefit. The reim-
bursement amount for the back meal benefits shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
GATES & SONS BARBEQUE OF MISSOURI, INC. 567
(1950), with interest at the rate prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended Order.4
ORDER
The Respondent, Gates & Sons Barbeque of Missouri, Inc.,
Kansas City, Missouri, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discontinuing any employee benefit or otherwise dis-
criminating against employees at its Main Street location be-
cause those employees engage in a protected strike or other
protected concerted activities.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Reinstate the free employee meal benefit at the Main
Street location.
(b) Make employees at the Main Street location whole for
any loss of benefits suffered as a result of the discriminatory
discontinuation of the free employee meal benefit in the manner
set forth in the remedy section of the decision.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of back
benefits due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cility on Main Street, in Kansas City, Missouri, copies of the
attached notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 14, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to
physical posting of paper notices, the notices shall be distribut-
ed electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, 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 August 1, 2013.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”