Gates & Sons Barbeque of Missouri, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 17, 2014

14-CA-110229 (N.L.R.B. Jun. 17, 2014)

JD–37–14
Kansas City, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
GATES & SONS BARBEQUE
OF MISSOURI, INC.
And 14-CA-110229
WORKERS’ ORGANIZING
COMMITTEE, KANSAS CITY
Michael E. Werner, Esq.,
for the General Counsel.
Willis L. Toney, Esq., and
Carroll W. Cunningham, Esq.,
(Toney Law Firm, LLC)
Kansas City, Missouri,
for the Respondent.
Fred Wickham, Esq.,
(Wickham & Wood, LLC)
Independence, 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 Relations 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 protected 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 demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following findings of fact and conclusions of law.

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.
JD–37–14
2
FINDINGS OF FACT2
5
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 10
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.
II. ALLEGED UNFAIR LABOR PRACTICES
15
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
location”), 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 20
George Gates, the Respondent’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 25
consisted of one meat sandwich and a side. This meal would cost approximately $6.00 to
$10.00 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 employees to make purchases on a “tab” that would 30
then be deducted from their paychecks.
Employees at the Main Street location were also able to collectively qualify for a monthly
monetary bonus based on the location’s performance. The relevant performance factors
included the location’s earnings, the number of customer complaints received, and the number 35
of meals customers sent back. The Main Street location consistently performed well as judged
by the bonus standards. For at least eight consecutive months from December 2012 through
July 2013 the Respondent awarded the monetary bonus to the workforce at that location.

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
Affidavit,” 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 unavailable to the Respondent, at the time of trial. See Fite/Lucent Technologies,
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 motion 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 representations based on it.
JD–37–14
3
In July 2013, a number of employees at the Main Street location 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 employees 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 $15.00 per hour. As part 5
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 organizer 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 they10
“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
“familiar” 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.” 15
On July 30, 2013, between seven and nine 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 location, which
stated that those employees were going on strike as of 7:30 a.m. on July 30, that the strike 20
would end at 12:00 a.m. on July 31, and that the employees were unconditionally offering to
return to work on the their 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.”
25
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 unconditionally 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. 30
During the following week, the Respondent permitted the returning 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 Respondent at the location and also by word-of-mouth. One of the 35
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 40
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 45
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 50
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 different location.
JD–37–14
4
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 5
employees before the post-strike 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 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 asserted 10
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 product
complaints. Indeed, the post-strike notices that the Respondent used to inform employees that15
the meal benefit was being discontinued made no mention of complaints or store performance.
The Respondent did not call as witnesses any of the managers who worked for Shipley, and
who purportedly participated 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 employees’ participation in the WOC campaign.20
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 25
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 satisfaction,” 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. American Red Cross Missouri-Illinois Blood Services Region, 347 NLRB 347, 349 30
(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 employee was
motivated, at least in part, by unlawful considerations. 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied, 455 U.S. (1982), approved in NLRB v. Transportation Corp.,
462 U.S. 393 (1983). The General Counsel may meet this burden by showing that: (1) the 35
employee engaged in union or other protected activity, (2) the employer knew of such activities,
and (3) the employer harbored animosity 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, 1274-75 (2007); Senior
Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000); Regal Recycling, Inc., 329 NLRB 40
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 No. 143, slip op. at 4 (2011). If
the General Counsel establishes discriminatory motive, the burden shifts to the employer to

3
Boyice testified that his “understanding” was that Main Street location’s management had
discontinued the lunch benefit during the week of July 13 – prior to the strike. I do not give this testimony
any significant weight since Boyice did not state was this “understanding” was based on, or when he
arrived at it, or otherwise indicate that his testimony on the subject was more than hearsay. At any rate,
his understanding 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.
JD–37–14
5
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 evidence shows that
employees engaged in protected concerted activity on July 30, 2013, by striking against the 5
Respondent in an effort to secure improved wages. California Gas Transport, 347 NLRB 1314,
1319 (2006) (“In the absence of special circumstances, 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 announced the 10
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 element of its initial
burden by showing that the Respondent harbored 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 15
find another 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 establish that the Respondent bore animosity towards the protected
strike activity, but the timing of the action makes the case even stronger. The Respondent first 20
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 25
participated in the strike. LB&B Associates, Inc., 346 NLRB 1025, 1026 (2005) (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. 30
Carolina Holdings, Inc. v. NLRB, 5 Fed. Appx. 236 (4th Cir. 2001); Bethlehem 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 burden shifts to the
Respondent to show that it would have taken the same action even absent the employees’35
protected strike activity. ADB Utility, supra; Intermet Stevensville, supra; Senior 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 complaints. Based on my consideration of Shipley’s
demeanor and testimony and the record as a whole, I find that this testimony was self-serving 40
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 discontinued. The notice that the Respondent posted
after the strike to announce the discontinuation of the meal benefit made no mention of
customer complaints or employee performance. The Respondent offers no explanation for why, 45
if the decision to discontinue the meal benefit was made weeks before the strike on the basis of
customer complaints, management did not announce the decision until immediately after the
strike and did not mention performance problems when it made the announcement. 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 management meeting 50
weeks before the strike or that it was made because of customer complaints. Indeed there was
no documentary evidence of customer complaints during the months leading up to the
JD–37–14
6
discontinuation, much less of an increase in customer complaints that would explain why this
existing benefit 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 5
performance problems rings hollow given the evidence of historically good performance at the
Main Street location. The staff at that location had been awarded monthly, store-wide,
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 employee’s protected strike activity does not withstand scrutiny.10
For the reasons discussed above, I conclude that the Respondent violated Section
8(a)(1) by discontinuing the employee meal benefit on or about August 1, 2013.
CONCLUSIONS OF LAW15
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 20
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.25
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to 30
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 during which they were unlawfully denied this benefit. The reimbursement amount for
the back meal benefits shall be computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 35
1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No.
8 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.440
ORDER
The Respondent, Gates & Sons Barbeque of Missouri, Inc., Kansas City, Missouri, its
officers, agents, successors, and assigns, shall45
1. Cease and desist from

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 purposes.
JD–37–14
7
(a) Discontinuing any employee benefit or otherwise discriminating against employees at
its Main Street location because 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 5
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Reinstate the free employee meal benefit at the Main Street location. 10
(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.
15
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, 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 20
Order.
(d) Within 14 days after service by the Region, post at its facility 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 25
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by 30
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 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 35
since August 1, 2013.
40
45

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 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.”
JD–37–14
8
(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
Dated, Washington, D.C. June 17, 2014.
____________________10
PAUL BOGAS
Administrative 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 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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discontinue any of your benefits, or otherwise 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 guaranteed you by Section 7 of the Act.
WE WILL reinstate the free employee meal benefit.
WE WILL make you whole for any loss of benefits suffered as a result of the discriminatory
discontinuation of the free employee meal benefit.
GATES & SONS BARBEQUE OF MISSOURI
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1222 Spruce Street, Room 8.302, Saint Louis, MO 63103-2829
(314) 539-7770, Hours: 8 a.m. to 4:30 p.m.
The Administrative Law Judge’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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (314) 539-7780.