Cordúa Restaurants, Inc. v. Morales, 16-CA-160901

• Court: National Labor Relations Board
• Parties: Cordúa Restaurants, Inc. and Steven Ramirez v. Rogelio Morales and Shearone Lewis.
• Decision Date: 26 April 2018
• Docket Number: 16-CA-173451,16-CA-170940,16-CA-161380,16-CA-160901

Cordúa Restaurants, Inc. and Steven Ramirez and Rogelio Morales and Shearone Lewis.

Nos. 16-CA-160901, 16-CA-161380, 16-CA-170940, 16-CA-173451

United States of America, National Labor Relations Board

April 26, 2018

DECISION AND ORDER

On December 9, 2016, Administrative Law Judge Sharon Levinson Steckler issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed cross-exceptions and a supporting brief. The Respondent and General Counsel filed answering briefs and reply briefs.

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, cross-exceptions and briefs and has decided to adopt the judge's rulings, ^[1] findings, ^[2] and conclusions^[3] in part, to reverse them in part, and to adopt the recommended Order as modified and set forth in full below.^[4]

1. The judge found, applying the analysis set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), that the Respondent violated Section 8(a)(1) of the Act by discharging employee Steven Ramirez in response to his filing of a collective action lawsuit against the Respondent alleging minimum wage and overtime violations under Federal and State law. We agree.

There is no dispute that filing the lawsuit constituted protected concerted activity and we agree with the judge that the General Counsel met his initial evidentiary burden under Wright Line of establishing that the lawsuit, joined by many employees in the months leading up to Ramirez' discharge, was a motivating factor in his termination. We further agree with the judge that the Respondent failed to establish its Wright Line defense that it would have discharged Ramirez even in the absence of his protected concerted activity. The Respondent's main defense is that it discharged Ramirez not for his protected concerted activity, but for his unprotected activity of attempting to steal employee wage information from confidential company files and lying about it during investigative interviews. We reject this defense on several grounds.

The Board has held that “mere request[s]” by employees for information relevant to Section 7 activities are protected, “even if the employer contends that [the requested information] is confidential.” Faurecia Exhaust Systems, 355 NLRB 621, 622 (2010). The protection is lost, however, if the employee obtains, or seeks to obtain, the requested information surreptitiously. Id., citing Ridgely Mfg. Co., 207 NLRB 193, 197 (1973), enfd. 510 F.2d 185 (D.C. Cir. 1975). Ramirez' conduct was plainly protected under this precedent.

While employed at the Respondent's Sugarland restaurant in late July 2015, Ramirez sent a text message to Naomi Reichman, the Assistant Manager of the Respondent's Artista restaurant, where Ramirez occasionally worked. As the judge found, Ramirez' text message requested that Reichmann obtain his pay records for him. Not only was this a protected request under Faurecia, it was permitted by the Respondent's handbook. The Respondent argues, however, that Ramirez also sought the pay records of other employees. The text does not support this contention but, even if it did, such a “mere request” would have remained protected under Faurecia.

Contrary to the Respondent, there is also no evidence that Ramirez asked Reichman to steal the wage information of other employees. In support of that argument, the Respondent relies principally on a text from Reich-man to Artista's General Manager Damian Ambroa, stating that Ramirez had “asked” if she could obtain employees' payroll information. But nowhere in Ramirez' text did he ask Reichman to “misappropriate the [wage] information or to obtain the records by disregarding any policy set forth in the Respondent's employee handbook.” Faurecia, supra, 355 NLRB at 622. Compare Macomb Daily, 260 NLRB 983, 984-986 (1982) (finding unprotected an employee's surreptitious conduct in waiting for bookkeeper's supervisor to go to lunch and then pressuring the bookkeeper, despite her initial refusal, to provide him with wage information).

Accordingly, because Ramirez' wage information request-either as found by the judge, or as argued by the Respondent-was protected, it cannot serve as a legitimate Wright Line defense. But even assuming that Ramirez' conduct was unprotected, we agree with the judge, for the reasons that she states, that the Respondent's reliance on that asserted unprotected misconduct as the basis for his discharge was a pretext. We, therefore, adopt the judge's finding that Ramirez' discharge violated Section 8(a)(1).^[5]

2. We do not agree with the judge, however, that the Respondent discharged employee Shearone Lewis in violation of Section 8(a)(1). For the reasons explained below, we reverse the judge's finding and dismiss this complaint allegation.

Lewis was a server at the Artista restaurant where, as noted above, Ambroa was the General Manager and Reichman was the Assistant Manager. Lewis joined Ramirez' lawsuit in June 2015, and recruited other employees to join.

By most accounts, including Ambroa's, Lewis was a very good server whom patrons frequently requested. However, she was also difficult to work with, as evidenced by disciplinary reports predating her April 2016 discharge. For example, Ambroa and Reichman testified about a March 2014 confrontation they witnessed between Lewis and kitchen staff employee Noelia Herrera. Ambroa testified that an upset Lewis “scream[ed]” at Herrera about the delay of an order Lewis had placed. Lewis received a written warning and a suspension for this incident. She received another written warning and suspension in May 2015 for “yell[ing]” at a server for not assisting in server side-work duties, such as setting tables and polishing glasses.^[6]

In October 2015, another confrontation occurred between Lewis and her coworkers that resulted in an investigation by Human Relations Manager Patricia Quinonez. As described by the judge, five kitchen employees of Hispanic origin “accosted” Ambroa with complaints that Lewis made derogatory remarks to them after she discovered that a spoiled dessert had been served to a guest. In written statements taken by Ambroa, the five employees alleged that Lewis came into the kitchen screaming for the sous chef to complain about the dessert. Most of the statements allege that before the chef appeared, Lewis looked at the employees and said “Y'all looking at me like y'all don't speak my language;” two statements allege that she called them “dumb foreigners” or “f-ing dumb people;” and one statement alleges that she called them “stupid.” Ambroa forwarded the statements to Quinonez who worked at Respondent's corporate office. Quinonez arrived at the restaurant 2 days later to conduct an investigation. After meeting with the five employees, who all confirmed their statements, Quinonez presented the employees' accusations to Lewis and reminded her that “this is not the first time we have received complaints about your behavior.” Lewis admitted yelling for the chef because the kitchen is so noisy, but denied calling the employees any names. Although Ambroa recommended that Lewis be discharged, Quinonez warned Lewis not to engage in any future inappropriate conduct.

Management personnel also complained about Lewis' conduct. In December 2014, Lewis was counseled for insubordination for refusing a manager's directive that all staff remain after hours to set up the restaurant for business the next day. In December 2015, Assistant Manager Nguyen emailed Ambroa with complaints of continual “false” accusations by Lewis - sometimes “in the middle of the restaurant with [employees] witnessing the entire incident” - of unfair treatment with respect to tables and sidework that he assigned her. Nguyen stated that he felt “harassed” by Lewis' “petty, selfish issues” and demanded that a decision be made by someone “higher up” to resolve the problem. Ambroa forwarded Nguyen's email to Espinoza, adding his own complaints that Lewis threatened to call her lawyer on several recent occasions when he tried to counsel her for being late to work, and stated that “SHE NEEDS TO GO!!” Ambroa criticized the failure to discipline Lewis after the spoiled dessert incident 2 months earlier, and stated “we cannot let her do whatever she wants just because she is part of a lawsuit. I can get 15-20 team members to testify against her, relating to all of her misconduct while at work.” It was against this background that the events leading to Lewis' discharge arose. In late February 2016, several employees contacted Quinonez alleging that Lewis and a second employee were creating a “hostile environment” at the Artista restaurant. On March 23, Quinonez interviewed 15 employees at the restaurant. In those interviews, and in written witness statements that Quinonez obtained from these employees, many of the employees described Lewis as constantly screaming at them for not doing their jobs correctly, being rude and impatient to kitchen staff when placing orders, and being “disrespectful to management” by disrupting pre-shift meetings and “arguing loud with the management team.” Three statements allege that Lewis made comments critical of Hispanic employees for not understanding English and calling them “wetbacks, ” and two statements allege that she threatened to report kitchen staff to immigration authorities. As summed up by the chef and kitchen manager, and confirmed by the statements of two other employees, the restaurant was a good place to work but “gets bad only when [Lewis] is working” (chef's statement); and “there is peace and tranquility in the kitchen when she doesn't come to work” (statement of kitchen manager).^[7]

Quinonez discussed her investigation with chief operating officer...