Cordua Restaurants, Incorporated v. National Labor Relations Board, 011121 FED5, 19-60630

Docket Nº:19-60630
Opinion Judge:STEPHEN A. HIGGINSON, CIRCUIT JUDGE
Party Name:Cordua Restaurants, Incorporated, Petitioner Cross-Respondent, v. National Labor Relations Board, Respondent Cross-Petitioner.
Judge Panel:Before Dennis, Higginson, and Willett, Circuit Judges.
Case Date:January 11, 2021
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Cordua Restaurants, Incorporated, Petitioner Cross-Respondent,

v.

National Labor Relations Board, Respondent Cross-Petitioner.

No. 19-60630

United States Court of Appeals, Fifth Circuit

January 11, 2021

On Petition for Review of Decision and Order of the National Labor Relations Board

Before Dennis, Higginson, and Willett, Circuit Judges.

STEPHEN A. HIGGINSON, CIRCUIT JUDGE

Petitioner Cordúa Restaurants asks us to review a decision and order of the National Labor Relations Board ("NLRB" or "Board") which found Cordúa to have violated the National Labor Relations Act ("NLRA" or "Act") by firing an employee for engaging in activities protected by the NLRA. The Board opposes Cordúa's petition on this finding, and it also cross-petitions for summary enforcement of its finding that Cordúa violated the NLRA by maintaining an impermissibly broad employee no-solicitation rule. We AFFIRM.

I.

Cordúa operates food services businesses in the metropolitan Houston, Texas, area, including nine restaurants with the brand names "Churrascos"; "Américas"; "Amazón Grill"; and "Artista." Churrascos has five locations, including Churrascos River Oaks and Churrascos Sugar Land. Cordúa employs several hundred servers, kitchen staff, and bartenders at its nine restaurants.

A. The collective action lawsuit against Cordúa

Employee Steven Ramirez began working for Cordúa as a server at Churrascos River Oaks in September 2012. After working for Cordúa for nearly two-and-a-half years, Ramirez noticed discrepancies in his paychecks and began to question whether he was properly paid for his shifts. Ramirez discussed his concern with coworkers and found that they had experienced similar issues. Ramirez hired an attorney, and together they concluded that Cordúa was paying its restaurant employees below minimum wage, improperly crediting tips against its minimum wage obligations, and failing to pay overtime wages.

In January 2015, Ramirez filed a collective action complaint against Cordúa in federal district court. The complaint alleged that Cordúa had committed various violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., and the Texas Minimum Wage Act, Tex. Lab. Code §§ 62.001 et seq. Also in January 2015, an initial group of seven additional Cordúa employees joined the collective action lawsuit as plaintiffs.

Ramirez transferred restaurants from Churrascos River Oaks to Artista in March 2015. Soon after, Ramirez's Artista coworkers began asking him about his lawsuit. These coworkers shared that they had experienced similar wage and hour discrepancies. Ramirez referred these coworkers to his attorney.

In June 2015, Cordúa transferred Ramirez to Churrascos Sugar Land, though he continued to work shifts at Artista. Ramirez's Churrascos Sugar Land coworkers similarly asked Ramirez about the lawsuit and shared their experiences with paycheck discrepancies. By the end of June 2015, sixteen of Ramirez's coworkers had joined the collective action lawsuit, including five at Artista and one at Churrascos Sugar Land.

B. Cordúa's investigation and termination of Ramirez

At a company-wide meeting in early July 2015, Cordúa informed its general managers of the collective action lawsuit. Ramirez's general managers at Artista and Churrascos Sugar Land, Damian Ambroa and Rigo Romero, respectively, were in attendance. After the meeting, both Ambroa and Romero separately asked for a list of employees who had joined the lawsuit at their respective restaurants. Ambroa learned from other Artista employees that Ramirez was involved in the lawsuit shortly thereafter.

In mid-July 2015, Naomi Reichman, the assistant manager at Artista, called Ramirez to ask about the lawsuit. Reichman's husband, Eran, had recently been fired by Cordúa, and Reichman inquired whether she or her husband might qualify to join the lawsuit. Ramirez offered to send Reichman his lawyer's contact information. According to his testimony before the administrative law judge ("ALJ"), Ramirez also asked Reichman if she could review his payroll records to determine if his hours were correct. Reichman and Ramirez later exchanged text messages, during which Reichman discussed her plans to review Ramirez's payroll records.

Later in July, Reichman left her personal cellphone unattended in Artista's office during a shift. Ambroa, the general manager, noticed text message notifications on the cellphone's lock screen and used Reichman's password to access her cellphone. According to his testimony, Ambroa had previously received Reichman's permission to use her cellphone because his own cellphone received a poor signal at the restaurant. Ambroa opened the cellphone's text message application, where he was able to view Reichman's recent text conversations. Ambroa toggled to a conversation between Reichman and a contact he knew to be Ramirez, took photographs of selected messages from the conversation with his own cellphone, and sent the photographs to Cordúa's chief operating officer, Fred Espinoza. As photographed, the text message conversation read: Reichman: Ok… It's nomimandel

Ramirez: Ok cool

Just got it

I'll make sure to ask him those questions that benefit you. I'll ask them again in front of [E]ran just so yall are sure yall protected.

Reichman: I'm going to start storing stuff on flash drives

Tomorrow . . . Do you remember when you started working at CRO [Churrascos River Oaks]?

Ramirez: Hell yea

Yeah august 2012

Training. On the floor September

Reichman: Ok . . . Email this info to me . . . So that we have actual correspondence

Ramirez: Ok will do it now

Reichman: I'm going in early so no one sees me looking through this stuff . . . .

Ramirez: On Monday right?

Reichman: Tomorrow . . . . And I would like to see the lawyer on Monday

What really sucks is that I found out that there are mit [managers-in-training] getting paid more than I am!

Anyway I'm going to sleep . . . Keep in touch with email tomorrow because I leave my phone on the desk and Damian knows you started this and I don't want him to know

Shortly thereafter, on July 26, 2015, Ambroa fired Reichman for drinking during her shifts. Later that evening, Reichman sent Ambroa a series of text messages referencing her firing and denying allegations that she accessed confidential employee information for Ramirez. Ambroa immediately called Espinoza and forwarded him screenshots of the messages. Cordúa never contacted Reichman to ask about her messages.

Espinoza sent the photographs of these text conversations to Cordúa's information technology department ("IT") and asked them to determine whether any confidential employee records had been taken. Approximately two weeks later, IT informed Espinoza that it was "more than likely" that no records had been taken.

Cordúa did not discuss this investigation with Ramirez in July or August 2015. Espinoza testified that he did not reach out to Ramirez in August because Cordúa's restaurants are very busy during that month due to Houston's "Restaurant Week."

Cordúa employees continued to join the collective action lawsuit in August and early September, including three additional Churrascos Sugar Land employees. As of September 1, 2015, nineteen employees had joined Ramirez's lawsuit, each of whom was employed at one of the three restaurants where Ramirez was working or had recently worked.

On September 4, 2015, Espinoza summoned Ramirez to a one-on-one meeting at Churrascos Sugar Land. Espinoza began the meeting by telling Ramirez, "We understand you have a lawsuit against us." Espinoza then stated to Ramirez that "[w]e respect your right to do that," before explaining that he was investigating an alleged attempt to access confidential personnel records. Espinoza asked Ramirez a series of questions about his communications with Reichman, including whether he had texted Reichman about obtaining records, sent texts to Reichman about a flash drive, or received records from Reichman. Ramirez denied taking such actions and asserted that he only texted Reichman about scheduling. Espinoza also asked Ramirez if he would provide Cordúa access to his personal cellphone and, when Ramirez refused, asked him to put his refusal in writing. Ramirez again declined, stating that he wanted to speak with his lawyer before putting anything into writing. Several times during the meeting, Ramirez asked for permission to call his lawyer. Espinoza denied these requests, telling Ramirez that he could call his lawyer after they finished the meeting.

The next week, on September 10, 2015, Espinoza called Ramirez into a second meeting. Romero, general manager of Churrascos Sugar Land, was also present. Espinoza informed Ramirez that Cordúa was investigating "[a] breach of confidential [] employee records including personal records, some payroll and time records." Espinoza stated that he had spoken to "various employees" about the investigation. Espinoza then told Ramirez, "Our investigation has revealed that you have worked with other employees that you know had access to employee records. You also were dishonest with me about accessing employee records and about texting [Reichman]." Ramirez responded that he did not ask Reichman for other employees' records, and that he did not need Reichman to do anything with his own records. Espinoza asked Ramirez to put his response in writing, but Ramirez answered that his attorney instructed him not to sign anything or write anything down. Ramirez asked for permission to call his lawyer, to which Espinoza replied that he could call his lawyer after the meeting. Espinoza concluded, "You violated our employee policies by accessing our employee records. You violated, also, lying to me about...

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