Hoot Winc, LLC and Ontario Wings, LLC dba Hooters of Ontario Mills, Joint Employers, (2015)

Docket Number:31-CA-104872
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Hoot Winc, LLC and Ontario Wings, LLC d/b/a Hooters of Ontario Mills and Alexis Hanson

Hoot Winc, LLC and Ontario Wings, LLC d/b/a

Hooters of Ontario Mills, and Jamie West

Hoot Winc, LLC and Ontario Wings, LLC d/b/a Hooters of Ontario Mills, and Chanelle Panitch.

Cases 31–CA–104872, 31–CA–104874, 31–CA– 104877, 31–CA–104892, 31–CA–107256, and 31– CA–107259

September 1, 2015

DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA

On May 19, 2014, Administrative Law Judge William Nelson Cates issued the attached decision. The Respondents filed exceptions and a supporting brief, and the General Counsel 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 adopt the judge’s rulings, findings, and conclusions regarding the Respondents’ arbitration agreement and to adopt his recommended Order as modified and set forth in full below.1

  1. The judge found, and we agree, that the Respondents violated Section 8(a)(1) of the Act by maintaining a mandatory arbitration agreement that would reasonably be read by employees to prohibit the filing of unfair labor practice charges with the Board. It is well settled that a work rule violates Section 8(a)(1) if employees would reasonably believe that the rule interferes with their ability to file Board charges, even if the policy does not ex

    1 Following the judge’s decision in this case, the parties executed an informal Board settlement agreement and a non-Board settlement agreement resolving all alleged violations other than those pertaining to the maintenance of the arbitration agreement. On October 22, 2014, the Board granted the parties joint motion to sever and remand the settled allegations. Accordingly, the only issue before us is whether the Respondents’ arbitration agreement violates Sec. 8(a)(1) of the Act. There are no exceptions to the judge’s finding that the Respondents are joint employers.

    We shall modify the recommended Order to reflect the settlement and remand of the other allegations and to conform to the Board’s standard remedial language. We shall substitute a new notice to conform to the Order as modified.

    pressly prohibit access to the Board. See Murphy Oil USA, Inc., 361 NLRB No. 72, slip op. at 19 fn. 98 (2014); D. R. Horton, Inc., 357 NLRB No. 184, slip op. at 2 fn. 2 (2012), enf. denied on other grounds 737 F.3d 344 (5th Cir. 2013), petition for rehearing en banc denied (2014); U-Haul Co. of California, 347 NLRB 375, 377– 378 (2006), enfd. mem. 255 Fed. Appx. 527 (D.C. Cir. 2007). Furthermore, it is settled that production of extrinsic evidence, such as testimony showing that employees interpreted the rule to preclude access to the Board, is not a precondition to finding that a rule is unlawful by its terms. See, e.g., Murphy Oil, supra, slip op. at 13 fn. 79; Hills & Dales General Hospital, 360 NLRB No. 70, slip op. at 1–2 (2014) (citing Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–647 (2004); Claremont Resort & Spa, 344 NLRB 832, 832 (2005)).

    Here, the parties stipulated, and the judge found, that the Respondents required employees to sign an arbitration agreement as a condition of employment. The arbitration agreement requires that all “claims” between the employee and the Respondents shall exclusively be decided by arbitration. The term “claims” encompasses

    all disputes arising out of or related to your application for employment, the application and recruitment process, the interview process, the formation of the employment relationship, your employment by the Company, or your separation from employment with the Company. The term “Claims” includes, but is not limited to, any claim whether arising under federal, state, or local law, under a statute such as Title VII of the Civil Rights Act of 1964, under a rule, under a regulation or under the common law, including, but not limited [to] ANY CLAIM OF DISCRIMINATION, SEXUAL OR OTHER TYPE OF HARASSMENT, RETALIATION, WRONGFUL DISCHARGE, ANY CLAIM FOR WAGES, COSTS, INTEREST, ATTORNEYS’ FEES OR PENALTIES. “Claim” does not include any dispute that cannot be arbitrated as a matter of law.

    (Emphasis in original.)

    Although the arbitration agreement does not explicitly prohibit employees from filing charges with the Board, we agree with the judge’s finding that employees would reasonably read it to do so—particularly in light of the breadth of the provision quoted above, its reference to “any claim” under “federal law” or “under a statute,” and its specific inclusion of claims of discrimination, retaliation, or discharge or for wages. See U-Haul Co. of California, supra, 347 NLRB at 377.

    The Respondents point out that the arbitration agreement includes an express exemption for “any dispute that

    363 NLRB No. 2

    2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

    cannot be arbitrated as a matter of law.” That provision, however, does not save the arbitration agreement from violating Section 8(a)(1). Although unfair labor practice charges must be filed with the Board, they may be resolved through arbitration. See Murphy Oil, supra, slip op. at 13, 18–19 & fn. 98. Accordingly, we affirm the judge’s conclusion that the arbitration agreement violated Section 8(a)(1) because employees would reasonably believe it prohibited the filing of charges with the Board. See id.; U-Haul Co. of California, supra, 347 NLRB at 377–378.

  2. Applying the Board’s decision in D. R. Horton, Inc., supra, the judge also found that the arbitration agreement violated Section 8(a)(1) because it required employees to waive their right to engage in class or collective action in all forums, whether arbitral or judicial. We agree.

    In Murphy Oil, supra, the Board thoroughly examined and reaffirmed the rationale of D. R. Horton. Specifically, the Board found that class or collective litigation by employees of claims relating to the terms and conditions of their employment is protected concerted activity, and that a policy prohibiting such activity in both arbitral and judicial forums violates Section 8(a)(1). As in Murphy Oil and D. R. Horton, the Respondents here required employees to sign, as a condition of employment, an arbitration agreement that barred each employee from litigating claims against the Respondents on a class, representative, or collective basis in any forum, arbitral or judicial.2 Thus, we agree with the judge that the Respondents’ maintenance of that arbitration agreement violated Section 8(a)(1) of the Act.3

    2 In their statement of facts, the Respondents quote a section of the agreement, entitled “Arbitrators’ Authority,” which states in part that the arbitration agreement “shall not be construed to deprive a party of any substantive right preserved by law.” The Respondents do not otherwise address or rely on that provision. In any event, we find that the provision does not change the result here. At most, it creates ambiguity as to an employee’s right to file charges with the Board, and it is insufficient to counteract the broadly worded language requiring individual arbitration of all claims arising under Federal law. It is well established that any ambiguity in a work rule that may restrict protected concerted conduct “must be construed against the [employer] as the promulgator of the rule[ ].” Ark Las Vegas Restaurant Corp., 343 NLRB 1281, 1282 (2004).

    3 For the reasons stated in his partial dissent in Murphy Oil USA, Inc., 361 NLRB No. 72, slip op. at 22–35 (2014), Member Miscimarra does not believe that Sec. 8(a)(1) of the Act prohibits employees and employers from entering into agreements that waive class procedures in litigation or arbitration. Accordingly, he would find that the Respondents did not violate Sec. 8(a)(1) by maintaining a class waiver agreement. Member Miscimarra agrees with his colleagues, however, that employees would reasonably read the agreement to require arbitration of disputes arising under the NLRA and thus to prohibit the filing of charges with the Board. To that extent, he agrees that the language of the agreement violates Sec. 8(a)(1). See id., slip op. at 23 fn. 4.

    ORDER

    The National Labor Relations Board orders that the Respondents, Hoot Winc, LLC and Ontario Wings, LLC d/b/a/ Hooters of Ontario Mills, Joint Employers, Ontario, California, their officers, agents, successors, and assigns, shall

  3. Cease and desist from

    (a) Maintaining a mandatory arbitration agreement that employees reasonably would believe bars or restricts the right to file charges with the National Labor Relations Board.

    (b) Maintaining a mandatory arbitration agreement that requires employees, as a condition of employment, to waive the right to maintain joint, class, or collective actions in all forums, whether arbitral or judicial.

    (c) In any like or related manner interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act.

  4. Take the following affirmative action necessary to effectuate the policies of the Act.

    (a) Rescind the unlawful arbitration agreement in all of its forms, or revise it in all of its forms to make clear to employees that the agreement does not constitute a waiver of their right to maintain employment-related joint, class, or collective actions in all forums, and that it does not restrict employees’ right to file charges with the National Labor Relations Board.

    (b) Notify all current and former employees who were required to sign the unlawful arbitration agreement that it has been rescinded or revised and, if revised, provide them a copy of the revised agreement.

    (c) Within 14 days after service by the Region, post at their Ontario, California facility, and at all other facilities where the unlawful arbitration agreement is or has been in effect, copies of the notice marked “Appendix A.”4

    Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondents’ authorized representative, shall be posted by the Respondents 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, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents customarily communicate with their employees by such means. Reasonable steps shall be taken by the Respondents to ensure that the notices are

    4 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.”

    HOOTERS OF ONTARIO MILLS 3

    not altered, defaced, or covered by any other material. If the Respondents have gone out of business or closed the facility involved in these proceedings, the Respondents shall duplicate and mail, at their own expense, a copy of the notice to all current employees and former employees employed by the Respondents at any time since April 15, 2013.

    (d) Within 21 days after service by the Region, file with the Regional Director for Region 31 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondents have taken to comply. Dated, Washington, D.C. September 1, 2015

    ______________________________________

    Mark Gaston Pearce, Chairman

    ______________________________________

    Philip A. Miscimarra, Member

    ______________________________________

    Kent Y. Hirozawa, Member

    (SEAL) NATIONAL LABOR RELATIONS BOARD

    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 maintain a mandatory arbitration agreement that employees reasonably would believe bars or restricts the right to file charges with the National Labor Relations Board.

    WE WILL NOT maintain a mandatory arbitration agreement that requires employees, as a condition of employment, to waive the right to maintain joint, class, or collective actions in all forums, whether arbitral or judicial.

    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 rescind the unlawful arbitration agreement in all of its forms, or revise it in all of its forms to make clear that the agreement does not constitute a waiver of your right to maintain employment-related joint, class, or collective actions in all forums, and that it does not restrict your right to file charges with the National Labor Relations Board.

    WE WILL notify all current and former employees who were required to sign the unlawful arbitration agreement that it has been rescinded or revised and, if revised, provide them a copy of the revised agreement.

    HOOT WINC, LLC AND ONTARIO WINGS, LLC

    D/B/A HOOTERS OF ONTARIO MILLS, JOINT

    EMPLOYERS

    The Board’s decision can be found at http://www.nlrb.gov/case/31-CA-104872 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.

    Juan Carlos Gonzalez, Esq. and Amanda Dixon, Esq., for the

    General Counsel.

    Justin J. Johl, Esq., for the Respondent Hoot Winc, LLC. Michael Barnett, Esq., for the Respondent Hooters of Ontario,

    LLC

    Burton F. Boltuch, Esq., for the Charging Party Alexis Hanson.

    DECISION

    STATEMENT OF THE CASE

    WILLIAM NELSON CATES, Administrative Law Judge. This case was tried before me in Los Angeles, California, on January 29 and 30, 2014.1 Charging Party Alexis Hanson, an individual, filed the charges in Cases 31–CA–104872 and 31–CA– 104874 initiating this matter on May 9,2 and the General Coun

    1 All dates are 2013, unless otherwise indicated.

    2 I do not allude to the other charges as Hanson’s discharge is the only discharge before me. Other allegations are, however, alleged, considered, and decided here.

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    sel (Government) issued an order consolidating cases, consolidated complaint, and notice of hearing (complaint) on September 27 and amended on December 12 against Hoot Winc, LLC (Hoot Winc) and Hooters of Ontario, LLC d/b/a Hooters of Ontario Mills (Hooters of Ontario). The Government alleges Hoot Winc an Oceanside, California company providing restaurant management services and Hooters of Ontario, an Ontario, California company operating a public restaurant selling food and beverages are joint employers of the employees of Hooters of Ontario. I shall refer to Hoot Winc and Hooters of Ontario collectively as the Company. The complaint also alleges the Company has maintained certain rules in an employee handbook, and, a confidential information agreement, that infringe upon employees Section 7 rights in violation of Section 8(a)(1) of the Act. It is also alleged the Company maintains an arbitration policy, an agreement to arbitrate and an acknowledgement of receipt of arbitration agreement that infringes upon employees Section 7 rights in violation of Section 8(a)(1) of the Act. It is also alleged the Company on April 23 suspended and on April 26 discharged Charging Party Hanson because she concertedly complained to the Company regarding wages, hours, and working conditions of the Company’s employees, and conditions surrounding an upcoming competition involving the employees and such actions of the Company are alleged to interfere with, retrain, and coerce employees in the exercise of rights protected by Section 7 and in violation of Section 8(a)(1) of the Act.

    The parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. I carefully observed the demeanor of the witnesses as they testified and I rely on those observations here. I have studied the whole record, and based on the detailed findings and analysis below, I conclude and find the Company violated the Act as outlined below.

    FINDINGS OF FACT

    I. JURISDICTION AND RELATED ISSUES

    1. Jurisdictional Status of Hoot Winc and Hooters of Ontario

      Hoot Winc has been, and continues to be, a limited liability company with an office and place of business in Oceanside, California, providing restaurant management services. During the calendar year ending December 31, 2012, Hoot Winc in conducting its business operations, performed services valued in excess of $50,000 in states other than the State of California. The parties admit, and I find, Hoot Winc is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

      Hooters of Ontario, has been and continues to be, a limited liability company with an office and place of business in Ontario, California, operating a public restaurant selling food and beverages. During the calendar year ending December 31, 2012, Hooters of Ontario derived gross revenues in excess of $500,000 and bought and received at its Ontario, California facility products, goods, and materials in excess of $5000 directly from points outside the State of California. The parties admit, and I find, Hooters of Ontario is an employer engaged in

      commerce within the meaning of Section 2(2), (6), and (7) of the Act.

    2. Joint Employer Status

      It is alleged that Hoot Winc and Hooters of Ontario have, at all times here, been joint employers of Hooters of Ontario’s employees at the Hooters Restaurant of Ontario, California. It is also alleged Hoot Winc has exercised control over the labor relations policies of Hooters of Ontario and administered a common labor policy for employees of Hooters of Ontario. It is admitted that Hoot Winc has provided human resources services to Hooters of Ontario, but Hoot Winc denies they are joint employers.

      The Government contends Hoot Winc had a joint employer relationship with Hooters of Ontario and the relationship existed at the time Hoot Winc suspended and terminated Hooters of Ontario employee Charging Party Hanson.

      Hoot Winc and Hooters of Ontario contend they are not joint employers but separate distinct entities with Hoot Winc simply providing human resources, management, accounting, and similar expertise to not only the Ontario restaurant but 18 other Hooters’ restaurant locations in California. Hoot Winc and Hooters of Ontario argue the following shows they were and are not joint employers, namely: (1) they are separate entities; (2) Hooters of Ontario is owned by a holding company not Hoot Winc and Hoot Winc is not a member of the holding company that owns Hooters of Ontario; (3) neither is a subsidiary of the other; (4) Hooters of Ontario engages Hoot Winc to provide restaurant management services through a written feefor-services agreement; and (5) Hanson was an employee of and paid by Hooters of Ontario not Hoot Winc.

      A joint employer relationship may be found to exist where there is sufficient evidence that one company has immediate control over the other company’s employees. The Board in Aim Royal Insulation, Inc., 358 NLRB No. 91, slip op. at 7–8 (2012), stated:

      The test for joint-employer status is whether two entities “share or co-determine those matters governing the essential terms and conditions of employment.” Laerco Transportation, 269 NLRB 324, 325 (1984). To establish a jointemployer relationship, there must be evidence that one employer “meaningfully affects matters relating to the employment relationship such as, hiring, firing, discipline, supervision, and direction of the other employer’s employees.” Id.

      In Capital EMI Music, 311 NLRB 997, 999 (1993), enfd. 23

      F.3d 399 (4th Cir 1994), a case which I cannot deny familiarity with, the Board noted:

      Joint employers are businesses that are entirely separate entities except they both “take part in determining essential terms and conditions” of a group of employees. Manpower, Inc., 164 NLRB 287, 288 (1967). Accord: NLRB v. Browning-Ferris Industries, 691 F.2d 1117, 1122–1123 (3d Cir. 1982), and cases there cited.

      In NLRB v. Browning-Ferris Industries, supra, the court specifically found that where two separate entities share or codetermine those matters governing the essential terms and condi-

      HOOTERS OF ONTARIO MILLS 5

      tions of employment they are considered joint employers for the purpose of the Act.

      Did Hoot Winc participate meaningfully in exercising control over matters governing the terms and conditions of employment of Hooters of Ontario employees, and, more specifically with respect to Charging Party Hanson’s employment?

      The evidence establishes Hoot Winc did. Hoot Winc Vice President of Human Resources Herrmann, when notified of the situation at the Hooters of Ontario bikini contest, directed Hooters of Ontario General Manager Vidauri to suspend employees Hanson and Panitch and to conduct an investigation to see what action would be taken. Herrmann personally investigated the situation at the Ontario restaurant. Thereafter, Herrmann notified both Panitch and Hanson she was terminating their employment. Herrmann testified she determined to fire Panitch before she spoke with her and determined to fire Hanson while speaking with her. Herrmann signed the discharge notices provided to Hanson and Panitch and only mentioned her termination decisions to Regional Director Peterson and General Manager Vidauri.

      During material times here, Hoot Winc Regional Director Peterson disciplined (oral and written) Ontario General Manager Vidauri and Bar Manager Ramirez. Both Vidauri and Ramirez are management personnel but it further demonstrates the direct control Hoot Winc exercised over Hooters of Ontario.

      The discipline given Vidauri and Ramirez was based on comments they made about Hooter Girl employees at Hooters of Ontario.

      Hoot Winc developed and provides the “Employee Handbook” given to each Hooters of Ontario employee. The Hoot Winc name, appears on each page of the handbook. The Employee Handbook (GC Exh. 18) addresses conduct, dress, allowable grooming practices, open door policy, nonharassment policy, restaurant work rules, company philosophy, employee relations, employee meals, alcohol consumption, safety, discipline, pay, benefits, vacation, absences, substance abuse, and other policies. A number of the policies inform Hooters of Ontario employees to contact Hoot Winc directly. The open door policy, for example, directs employees to first address work-related concerns with their immediate supervisor or general manager but if the matter is not resolved to then report their concerns to a regional supervisor and if appropriate report their complaint directly to Hoot Winc human resources via telephone or email. Hoot Winc issues to each Hooters of Ontario employee its standard operating procedure booklet (GC Exh. 20) which addresses various policies and procedures for Hooters of Ontario employees. For example, with respect to the anti-harassment and discrimination procedures it is specifically noted that Hoot Winc Vice President of Human Resources (in this case Herrmann) was ultimately responsible for hearing complaints, conducting investigations, documenting information, and determining what action would be taken regarding those procedures. Other procedures are addressed such as what employees at Hooters of Ontario must wear, meal and rest break guidelines and requirements, when and how employees will be paid, tip allocations, communications with employees, medical reimbursement, and work schedules.

      It is clear Hoot Winc has immediate and effective control in determining the terms and conditions of employment of Hooters of Ontario employees.

      Hoot Winc and Hooters of Ontario’s contention, there is no joint employer relationship here, is invalid, because, among other reasons, the contentions are grounded on corporate structure and separate entities and not on control, or lack thereof, by one entity over employees of the other concerning essential terms of employment. The fact, for example, that Hanson’s and Panitch’s paychecks were drawn from Hooters of Ontario accounts does not require a different result than I conclude here, namely, that a joint employer relationship exists.

      As noted elsewhere here, I shall refer to Hoot Winc and Hooters of Ontario jointly as the Company.

    3. Supervisory and Agency Status

      It is admitted that Vice President of Human Resources Amber Herrmann (Herrmann or Vice President of Human Resources Herrmann) and Regional Director Scott Peterson (Peterson or Regional Director Peterson) were supervisors within the meaning of Section 2(11) of the Act and/or agents of Hoot Winc or Hooters of Ontario within the meaning of Section 2(13) of the Act. It is, however, denied that Marketing coordinator/key employee Pamela Noble and Key employee Alicia Wade (Strohman) are supervisors and/or agents within the meaning of the Act.

  5. Facts

    Marketing Coordinator Noble and employee Wade both were, at applicable times, “key employees” for the Company. As the name implies key employees are provided keys to the restaurant and cash registers. No other nonmanagement employees have keys either to the restaurant or cash registers. Charging Party Hanson explained that if a “Hooters Girl” had a problem with a customer’s check (bill), that is, something was rang up incorrectly, or the customer had, for example, a discount coupon, the key employee on duty could delete items from a customer’s bill or give the customer credit for a promotional coupon. Key employees may go to the bank or take inventory for the Company.

    Key employees sometimes conduct “jumpstart” sessions at the beginning of the workday or shift. Hanson described “jumpstart” sessions as “just a little meeting we have before our shift every day.” Upcoming events and specials at the restaurant, sales for the day, merchandise sales, and section assignments are discussed and/or made.

    Key employees sometimes “cut the floor.” Cutting the floor happens when there are more workers present than the customer base justifies. Key employee Noble explained “we have to check labor every hour. And if it’s over ten percent, we’re supposed to cut accordingly. That way we can save money on labor, so normally we ask who wants to stay and go.” If volunteers do not resolve who goes “Hooter Girls” name tags are collected and it is decided who will leave work that shift by drawing name tags. Noble testified employees were never just selected because that would not be fair.

    There were times at the restaurant when key employees were present while managers were not. If anything occurred on a shift, with no manager present, the key employee would leave a

    6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

    note for the general manager. Key employee Wade stated if an issue arose she could coach or counsel the employee, and had, on a couple of occasions, filled out a computer generated document on which she recorded what had occurred. Wade viewed the computer form as basically a type of written warning letter. She explained the computer generated document “is not considered at issue, nor valid, unless it is given by upper management.” Wade could not recall whether upper management actually issued the warnings she had drafted. General Manager Vidauri testified key employees could not hire, fire, or suspend other employees.

    Marketing coordinator and key employee, Noble, when also functioning as marketing coordinator, had the additional duty of setting up promotional events such as the April 22 bikini contest at the Ontario location.

  6. Analysis and applicable principles Section 2(11) of the Act defines a “supervisor” as:

    Any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, 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.

    To establish that Noble and Wade were supervisors, the Government must prove by a preponderance of the evidence:

    (1) that they held authority to engage in any one of the 12 enumerated supervisory functions listed above; (2) that their “exercise of such authority [was] not of a merely routine or clerical nature, but require[d] the use of independent judgment”; and

    (3) that their authority was held “in the interest of the employer.” See, e.g., NLRB v. Kentucky River Community Care, 532 U.S. 706, 710–713 (2001); Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006). The Government can prove they had the requisite supervisory authority either by demonstrating they actually performed a supervisory action or by showing they effectively recommended it be done. Oakwood, above. Further, “to exercise ‘independent judgment’ an individual must at minimum act, or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data.” Id. at 692–693. A “judgment is not independent if it is dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in the provisions of a collective-bargaining agreement.” Id. at 693. Because the Government bears the burden of proving supervisory status any lack of evidence on an element necessary to establish supervisory status must be held against the Government. G4S Regulated Security Solutions, 358 NLRB No. 160, slip op. at p. 1 (2012).

    Applying these principles here, I find the Government’s evidence fails to establish Noble and/or Wade possessed any indicia of supervisory authority.

    The fact an employee is given a literal key to the employer’s facility and cash registers does not, in any way, establish the employee has authority to exercise any indicia of supervisory

    status as outlined above. At best, assigning an employee keys to the facility and cash registers may indicate a degree of trust by the employer in the employee but little else. The fact a key employee is authorized to correct a customer’s bill where incorrect data has been entered into the company cash register or giving customers credit for valid promotion coupons does not establish key employees have or exercise any indicia of supervisory status. That key employees may take inventory or do banking transactions for a manager does not establish an indicia of supervisory authority.

    Key employees may, when managers are not present, conduct jumpstart meetings at the beginning of shifts. The evidence in this regard only establishes that key employees notify employees concerning upcoming events at the restaurant, sales for the day including particular merchandise sales, and, advising “Hooter Girls” which tables and sections of the restaurant they will be assigned for that day. There is absolutely no showing, on this record, that key employees utilize independent judgment when making such announcements or assignments. It appears key employees simply followed a set routine in selecting employees to cover customer tables.

    In cutting the floor or reducing the number of “Hooter Girls” in relation to customers key employees simply perform a routine check of labor every hour, and, on a specific percentage ratio of labor to customers, they cut or reduce the work force. Key employees do not independently select employees to be cut but rather ask for volunteers; or, collect “Hooter Girl’” name tags and conduct a drawing to determine which employee(s) are sent home for the remainder of the workshift. This activity does not establish key employees responsibly direct worktimes for employees of the restaurant.

    The Government contends key employees prepare written disciplinary warnings for employees which are approved by the General Manager and issued. The Government further contends this procedure establishes key employees effectively issue discipline to other employees, because upper management follows the key employees’ recommendations. I find the evidence here is insufficient to carry the Government’s burden. A key employee may, if no managers are present on a shift, document an event that occurred on the shift which management might need to know about. Key employee Wade indicated she could coach and/or counsel an employee and that on a couple of occasions she documented what had occurred for the general manager. Key employee Wade considered the forms she prepared basically a type of written warning but added the document was not considered an issue or valid unless it was given to the employee involved by upper management. This evidence does not shed light on a key employees’ disciplinary authority. It does not establish that Wade, or the other key employee, utilized independent judgment regarding a warning recorded about an incident. The fact the general manager may have issued some form of discipline, based, at least in part, on the event documented by a key employee does not establish an effective recommendation of discipline by the key employee such as to establish Wade, or the other key employee, to be supervisors within the meaning of the Act. The evidence does not demonstrate specific examples of independent judgment regarding discipline. I find the Government failed to establish Noble and

    HOOTERS OF ONTARIO MILLS 7

    Wade were supervisors within the meaning of the Act.

    The Government additionally, or alternatively, contends Noble and Wade are agents of the Company pursuant to Section 2(13) of the Act. Section 2(13) of the Act reads as follows:

    In determining whether any person is acting as an “agent” of another person so as to make such other person responsible for his act, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.

    The Board looks to the common law principles of agency in determining who is an agent under the Act and those principles must be broadly construed when applied to labor relations.

    Longshoremen ILA (Coastal Stevedoring Co.), 313 NLRB 412, 415 (1993). The doctrine of apparent authority results from a manifestation by the principal to a third party that creates a reasonable basis for the latter to believe that the principal had authorized the alleged agent to perform the acts in question.

    The test is whether, under all the circumstances, employees would reasonably believe that the employee in question was reflecting company policy and/or acting and speaking for management. Hausner Hard-Chrome of Kentucky, 326 NLRB 426, 428 (1998).

    The evidence establishes Noble and Wade both were agents of the Company within the meaning of Section 2(13) of the Act. Wade for example prepared incident disciplinary type reports for management by which employees would reasonably believe she was reflecting company policy and spoke for management. Noble’s April 3 message to the bikini contest participants, in which she explained if they signed up for the contest and did not show up they would be terminated, would cause employees to reasonably believe her memorandum reflected Company policy, especially in light of the fact upper management knew of the message. Additionally, the fact Noble and Wade both conducted jumpstart meetings with employees, opened the restaurant, and had keys to the cash registers, made banking transactions for the Company, corrected and adjusted customers’ bills and checked labor rates and cut the work force would reasonably cause employees to conclude they were performing their duties on behalf of management. I find the evidence establishes Noble and Wade were, at applicable times, agents of the Company.

    II. ALLEGED UNFAIR LABOR PRACTICES

    1. The Suspension and Discharge of Alexis Hanson

  7. The Government’s evidence

    The thrust of this case centers around the discharge of Charging Party Hanson. Hanson’s discharge centers around the Company’s annual bikini contest held at the Ontario Hooters location on April 22. Hanson was a participant in the contest.

    Hanson worked as one of approximately 40 “Hooter Girls” at the Ontario, California Hooters location. Her entire employment from April 2011, until her suspension on April 23, and discharge on April 26, was at that location. Hanson worked 5 days per week totaling 30 hours at $8.25 per hour plus tips. As a Hooter Girl, Hanson greeted customers, waited tables, and handled cash and credit payments by customers. In addition to

    her Hooter Girl duties she also served as a certified trainer, training new hires, and assisted in opening new Hooters locations.

    Ontario General Manager Gerardo Vidauri, among others, conducted mandatory bartender meeting’s and held such a meeting in April.

    Bartender Panitch attended the April meeting and thereafter spoke with “Hooter Girls” and coworkers Hanson and Rochelle about what she considered inappropriate or disparaging remarks, about the two coworkers among others. Hanson told Panitch she should immediately telephone Regional Director Peterson and tell him everything that had happened that it was unprofessional. Panitch spoke with Hooter Girl Rochelle on the telephone. Rochelle “was very upset” and was going to speak with Regional Manager Peterson also and reported back to Panitch as soon as she had spoken to Peterson.

    Hanson, who did not attend the meeting, but received a text message, with complaints, about the meeting, from bartender Chanelle Panitch, whom she met for lunch later that day. Panitch told Hanson everything that occurred at the bartenders meeting that day. Marketing coordinator and key employee, Noble, and key employee Wade were at the meeting at which General Manager Vidauri and Bar Manager Chris Ramirez talked about the Ontario Hooter Girls. Panitch testified the managers specifically spoke about five Hooter Girls; namely, Alexis Hanson, Jaime West, Jean Delroja, Kelli Rochelle, and Candyce Miller. Panitch told Hanson the first full hour of the meeting was spent talking about the Hooter Girls being fat along with other derogatory comments. Hanson testified Panitch explained that Gerardo, Ramirez, and Noble called one of the Hooter Girls, Lena Delroja, “stupid” and a “dumb blond,” and, that bartender and Hooter Girl Kelli Rochelle’s singing career was not going anywhere. Rochelle was not present at the meeting. Hanson testified Panitch told her General Manager Gerardo said Hooter Girl Angela was fat and looked that way in her uniform. Panitch told Hanson that Bar Manager Ramirez said Hooter Girl Candyce Miller, “scrunched her hair like a Mexican and had tattoos that they didn’t like.” Panitch explained to Hanson, she thought it was not a professional work environment and felt if they were saying these things about other employees, what were they saying about her when she was not present. Panitch told Hanson this upset and made her uncomfortable and unhappy. Panitch told Hanson her name was brought up at the bartenders meeting. Panitch said they were talking about promoting someone to bartender and Hanson’s name was mentioned as a good candidate. Panitch told Hanson. General Manager Vidauri responded that Hanson just demanded and expected to be promoted and “if [she] didn’t have an attitude problem then he would.” Hanson told Panitch it wasn’t right that her name was brought up without her being present and she wanted a direct meeting with Vidauri so if she had an attitude problem he could address it with her and not in front of all the other bartenders. Hanson testified it made her unhappy and she wanted to confront General Manager Vidauri in person, but Panitch thought it would make it uncomfortable for her (Panitch) because she was the one that had told Hanson what had taken place at the April bartenders meeting. Panitch asked Hanson not to do it.

    8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

    Hanson testified she thereafter spoke with Hooter Girls Kelli Rochelle, Lena Delroja, and Panitch about what was said concerning specific Hooter Girls at the early April bartenders meeting. Hanson and Delroja complained about their names being brought up and Delroja said she would call Vice President of Human Relations Herrmann.

    Hanson testified that about a couple of days after the April bartenders meeting, but still in early April, she and Rochelle met with General Manager Vidauri at the end of the bar in the restaurant. At the meeting Vidauri talked about Hooter Girl Angie saying; “Angie eats too many key lime pies after her shift and she needs to go to the gym, rather than laying around with her boyfriend. And that she’s starting to look really bad in her uniform.” Hanson testified; “me and Kelli did not respond to Gerardo [Vidauri]. We kind-of just gave him a look that indicated that we were tired of hearing them talk about our coworkers and turned our back towards him and walked away from the conversation.”

    Panitch testified she sent a text message to Regional Manager Peterson about the bartenders meeting and he immediately telephoned her. Panitch told Peterson all about the bartender meeting. She said he responded kind-of-like he had heard the story and said he would speak with General Manager Vidauri and Bar Manager Ramirez about it. Hanson testified Regional Director Peterson, sometime later, telephoned the restaurant and she happened to answer the phone and she discussed the bartenders meeting with him. Hanson told Peterson it was unprofessional and she had no one in management she could look up to or take her complaints to. Peterson told Hanson she could call him anytime and said he had received several complaints about the bartenders meeting.

    At about this same time in early April flyers were placed in the employee breakroom announcing that the Hooters of Ontario bikini contest would be held on April 22. The annual bikini contest is one of 3 or 4 events drawing large numbers of customers to, and providing publicity for, various Hooter restaurants and the participants.

    Panitch testified she had participated in approximately 10 bikini competitions before the April 22 Ontario contest. Panitch participated in early April in the West Covina and Costa Mesa, California contests as did Marketing Coordinator Noble. Panitch testified Noble’s best friend, Krystle Lina, served as a judge at both contests. Noble finished in the top three at both contests. Panitch knew Lina was Noble’s best friend from Nobles social media pages. Panitch testified that when in the second contest, the Costa Mesa one, Noble received second place, she (Panitch) telephoned Charging Party Hanson and said, “I told her that Pamela Nobles had got second place and that her best friend was a judge again.” Panitch also spoke the next day with Hanson about Noble winning and Lina being one of the judges. Hanson suggested Panitch tell Regional Director Peterson. Panitch thought that was a good idea but told Hanson she felt uncomfortable doing so because she had already spoken to Peterson about the bartenders meeting and she “didn’t want it to seem like [she] was complaining all the time.”

    The bikini contest is divided into two events. First there is a costume portion then a bikini portion. Cash prizes are awarded with $300 given for first place, $200 for second place, and $100

    for third place. First and second place winners advance to regional and possibly the national contest where larger prizes are awarded and selections are made for the annual Hooter Girls calendar. Those pictured in the calendars are given a percentage of the profit from the calendar sales aside from the cash awards and other prizes and contestants gain exposure for possible careers in modeling and movies.

    The flyer announcing the bikini contest at the Ontario location was provided by Marketing Coordinator Noble. Hanson testified Noble not only set the date for the contest but announced the theme for the costume portion and provided a signup sheet for those wishing to enter the contest. Hanson testified there was no mention, in the flyer, that after signing up to participate it was mandatory for those signing to do so. On prior occasions, employees were allowed to withdraw after signing up and could do so without penalty. Hanson had, in the past, withdrawn from the contest without penalty.

    Hanson signed up for the contest at the time Noble first posted the contest details. Hanson testified Marketing Coordinator Noble told her in early April, “that she [Noble] would not be participating in the contest, because she was putting on the contest. And if she did so, she was worried that other employees and contestants would think that she was cheating.”

    After Hanson signed up for the contest she and other Hooter Girls received a “hot message” via their cell phones from Noble on Wednesday, April 3 which reads as follows:

    Hey Ladies, If you are not signed up for the contest you WILL be working that night. But to clarify if you have your name on the list and you plan on backing out cross your name off the list by Friday. If you are signed up for the contest and do not show up it will be a no call no show by our regional and GM and you WILL BE TERMINATED. Also you MUST be here by 8:30 p.m. if you are late you will not be allowed to enter the contest and you will work the floor that night like it was a scheduled shift. Any questions or if I’m not clear let me know.

    Marketing Coordinator Noble did in fact participate in the bikini contest. Hanson testified that by the time she learned Noble would be participating in the contest it was too late to withdraw without being terminated. Hanson was upset and concerned the contest might be rigged. Hanson explained; “We had known that she was already participating in other contests, so it just made us not want to do it. Because we had known that [s]he put the whole event together.”

    Hanson’s concerns grew the contest might be rigged when she saw certain pictures posted around April 15, by Noble on the social media site Instagram—an account where those who join can post and view pictures and related comments. Hanson and Noble followed each other on Instagram. Hanson saw pictures of Noble, one of which included Krystle Lina, identified by Noble in the comment section, as her best friend for life. The picture of Noble and Lina showed Noble winning second place at the Costa Mesa Hooters restaurant. Noble had also introduced Hanson to Linda as her best friend. According to Hanson, Lina served as a judge at other contest locations. Hanson knew at the time she saw the Instagram picture, Lina would be one of the judges at Ontario contest.

    HOOTERS OF ONTARIO MILLS 9

    Hanson testified that before the April 22 bikini contest she and several employees discussed, Marketing Coordinator Noble having her friend serve as one of the judges at other contests at which Noble had won. Hanson spoke about this with Lena Delroja, Kelli Rochelle, Chanelle Panitch, and Jessy Wiles.

    Hanson testified Wiles started the conversation by saying she did not want to participate, “that it was going to be rigged, that we had to participate in something that we were not being paid for. We had to go purchase things for basically a rigged competition.” Hanson agreed with Wiles. Hanson explained; “We all agree[d] that we were unhappy about participating in this unpaid competition.” Hanson testified that although she, Panitch, and Delroja were unhappy having to compete, they were afraid they would be terminated if they did not and they did not like having to spend money to get ready for something they were not being paid for.

    Hanson testified that at a jumpstart meeting before the bikini contest at Ontario, General Manager Vidauri reminded them “about our mandatory appearance in the competition.” Hanson expressed her unhappiness about participating in the contest and asked Vidauri; “how can they force me to participate in something that I wasn’t paid for, when [she] had to go and spend [her] own money on stuff for the competition and gas to drive down to the competition.” General Manager Vidauri explained he did not make the mandatory decision that it came from corporate. Hanson also told Vidauri she was concerned the contest was rigged, “just like all the other one’s were with Pamela [Noble] and her friend judging the contest.” Vidauri “brushed” it off as corporate’s decision.

    Hanson testified that in the morning hours 1 or 2 days before the April 22 bikini contest she answered the telephone at the restaurant and it was Regional Director Peterson calling. According to Hanson this was the same telephone call from Peterson in which she had told Peterson about the several complaints she had received concerning the April bartenders meeting which she thought the meeting was unprofessional. Peterson asked Hanson if she was going to participate in the bikini contest. Hanson said she was but she was not looking forward to doing so. Peterson asked why. Hanson answered, “because we were forced to do it, we are not being paid and that it was rigged.” Regional Director Peterson told Hanson he was looking into the competition being rigged, and added, “I will handle this for you, Alexis.”

    Panitch testified she spoke to Regional Director Peterson about the relationship between Nobles and Krystle Lina.

    Panitch explained she had Peterson’s telephone number from when she previously called him about the bartenders meeting.

    Panitch told Peterson she did not think it was fair that Marketing Coordinator Noble had her best friend judge these competitions. Peterson told Panitch if she could prove they were friends or best friends he would not allow Lina to be a judge in the Ontario bikini competition. Panitch told Peterson she could prove it by providing him with a screenshot from her cell phone of an Instagram photograph depicting Lina and Noble together with the caption best friends for life.

    Hanson testified Marketing Coordinator Noble sent a “hot schedules message” notifying all contestants they were to be at the restaurant April 22 at 8:30 p.m. although the contest did not

    start until 10 p.m. Hanson arrived at around 8 p.m., signed in and proceeded through the restaurant to a tent set up behind the restaurant for the contestants to change clothing.

    Hanson and the other participants dressed in costume for the first portion of the contest. Hanson noticed Marketing Coordinator Noble’s best friend, Krystle Lina, as well as Noble’s boyfriend, were contest judges. Hanson did not recognize any of the other judges. Panitch observed Lina as a judge and that she “was whispering to the other judges.” Hanson and the others later participated in the second, or bikini, portion of the contest. Panitch testified that between the costume and bikini portions of the contest she spoke with Regional Director Peterson about Lina being one of the judges. Panitch explained, “I asked him if he knew that Krystle Lina was still going to be a judge at our contest, and he said no.” Panitch said Hanson was also present and asked Peterson if he knew who was going to win. Peterson shook his head and laughed. Hanson testified that when she and Panitch saw the two were still judges at the bikini portion of the contest Panitch told Regional Direction Peterson she was unhappy, “that he had said it would be dealt with and that it wasn’t and then we were still forced to participate in a rigged competition.” Hanson testified Peterson replied, “I know Chanelle. Know. It’s okay,” and put his arms around her to comfort her.

    The contest ended around midnight. The winners were announced with Marketing Coordinator Noble winning first place and awarded $300 prize money. The three top finishers had their pictures taken near the changing tent. Hanson testified she, Panitch, and Kelli Rochelle congratulated the second and third place winners. Noble was present also. Hanson testified she told Noble “Congratulations, Pam, on cheating.” Noble asked “What?” Hanson did not respond. Hanson testified she did not use any curse words at Noble nor did she threaten Noble in any manner. Panitch testified Hanson did not raise her voice nor use any curse words that night.

    Panitch testified she was upset at the end of the contest, “not at the fact that I didn’t win but at the fact that we were force[d] to do this contest that was obviously rigged.” When Panitch saw Marketing Coordinator Noble in the photograph area wearing the first place sash she told Noble; “Thanks for Cheating.” Panitch could not exactly remember what else she said but it was something to the effect, “you’re a fucking bitch.” Noble told Panitch she could leave. Hanson testified Marketing Coordinator Noble and Panitch started “yelling at each other” in back of the restaurant but not around customers. Hanson testified Noble and Panitch cursed at each other, explaining, “it was a heated exchange between both girls and there were curse words exchanged.” Hanson said she and Kelli Rochelle told Panitch, “this is not the time or the place for this” and took Panitch inside the restaurant. Panitch acknowledged they may have told her to stop acting like she was, and acknowledged she went into the restaurant with Hanson. Hanson proceeded to speak with her (Hanson’s) boyfriend.

    Hanson testified key employee Wade approached and told Hanson she needed to leave and “if [she] didn’t leave right now that she would terminate me.” Hanson told Wade she had not done anything, that the conversation with Market Coordinator Noble that took place outside, was over and that she and Ro-

    10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

    chelle were on their way out. Hanson also told Wade she had no right to threaten to take away her job that she had not done anything.

    Hanson observed key employee Wade then approach Panitch and that a caddy—a container on each table holding paper towels, ketchup, salt and pepper—flew off the table onto the floor. Hanson thought Panitch pushed it off the table. Panitch testified Wade approached saying; “Sweetie, I know you’re upset that you lost, but it’s not worth your job.” Hanson said she moved away from that confrontation because she did not wish anyone to think she had anything to do with it. Hanson next noticed that key employee Wade had her arms around Panitch who was telling Wade to let go of her. Panitch testified that as she was trying to leave the restaurant key employee Wade “bear hugged” her and she told Wade to, “Get the fuck off me.” Panitch may also have said “I know she is your fucking friend but this isn’t right.” Panitch testified Hanson was speaking with her (Hanson’s) boyfriend at the time then left the restaurant. Panitch denied pushing a chair against Wade.

    Hanson and Rochelle left along the side of the restaurant and observed Regional Director Peterson, General Manager Vidauri, Marketing Coordinator Noble, and Noble’s boyfriend. Peterson approached Hanson and asked that she not say anything to Noble. Hanson told Peterson, “Scott, I wouldn’t say anything to Pamela. I haven’t said anything to Pamela. Everything that has gone on tonight was Chanelle, and I apologize for that.” Peterson thanked Hanson, and she and Rochelle left. Hanson testified that as she and Rochelle were in her car to leave Peterson approached and they discussed what had happened. Peterson told Hanson, “Thank you for not reacting the way that Chanelle did.” Hanson told Peterson she would never do that. Peterson again thanked Hanson. Hanson told Peterson the whole thing could have been avoided. Peterson acknowledged; “I know. It’s probably my fault.” Hanson and Rochelle drove away.

    Hanson specifically stated she was not escorted off Hooters’ property by security after the bikini contest and never saw security interact with Panitch. Hanson said that as she left Hooters’ parking lot she saw Noble 10 to 15 feet away but they never spoke.

    Panitch testified she walked, unescorted, from the restaurant, and, as she walked toward her car she observed Marketing Coordinator Noble near Noble’s car, which she had to pass getting to her car. Panitch yelled to Noble that she did not deserve to win; she was a cheater; and, “I called her a cunt” and “was basically yelling out profanities to her.” Panitch was about 10 feet from Noble and Regional Director Peterson, Bar Manager Ramirez, and Former Manager Jackie. Panitch told Bar Manager Ramirez; “I know that’s your friend, but what she did wasn’t right.” Panitch testified; “Jackie and Kelli Rochelle were just basically telling me to calm down and not to say anything.” Panitch testified Hanson was not in the area at that time nor when Panitch drove away. Panitch testified she was not escorted to her car nor did she see or know if police came to the restaurant that evening. Panitch said she did, about 5 minutes after she left, receive a telephone call from Hanson checking on her. Panitch guessed Peterson was near Hanson when Hanson placed the call because she could hear Peterson in the back-

    ground asking if Panitch wanted to be followed home.

    Hanson was scheduled to work the next day, April 23, however, General Manager Vidauri telephoned telling her not to bother coming to work. She was suspended for what had happened the night before. Hanson asked Vidauri; “okay, well, what happened? I didn’t do anything. I had nothing to do with that.” Hanson testified Vidauri again stated they were investigating it and would get back with her in 2 or 3 days. Hanson asked if her job was at risk. Vidauri said it was.

    Hanson received a telephone call, on or about April 26, from Vice President of Human Resources Herrmann who told Hanson, “I just want to let you know you are being discharged.” Hanson asked for what. Herrmann replied, “For cursing at Pamela Noble the night of the bikini contest.” Hanson told Herrmann she never cursed Noble that night. Herrmann acted surprised and stated, “Oh, you didn’t?” Hanson testified Herrmann then replied, “Okay. Well, then you are being terminated for your negative social media posts.” Herrmann asked if Hanson had anything to say. Hanson said she had been a good employee for Hooters and didn’t understand why she was being discharged for something like this without even hearing her side of the story. Hanson reminded Herrmann she had worked for Hooters for 2 years and didn’t deserve to be fired. Herrmann told Hanson, “I know, Alexis. You were always a good employee” and you are “eligible for rehire” later on.

    On April 26, Vice President of Human Resources Herrmann notified Hanson in writing of her termination. The notification reads, in part, as follows:

    On April 22, 2013 after the Ontario Swim Suit Competition you got into a verbal altercation with other employees, as well as posting disparaging comments about coworkers and managers on Social Media. This behavior violated the following provisions of the “Discipline” section of the Hooters employee handbook (page 36):

    • Acts of violence, threats of violence, dishonesty toward guest or fellow employees of Hooters.

    • Insubordination to a manager or lack of respect and cooperation with fellow employees or guest.

    • Any off-duty conduct which negatively affects, or would tend to negatively affect, the employee’s ability to perform his or her job, the Company’s reputation, or the smooth operation, goodwill or profitability of the Company’s business.

    • Any other action or activity which Hooters reasonably believes represents a threat to the smooth operation, goodwill, or profitability of the business.

    At this time we are releasing you from employment. Your final check is enclosed and includes all monies due you at this time for termination.

    ________________________ ____________________

    Alexis Hansen Date

    /s/Amber Herrmann 4/26/13

    HOOTERS OF ONTARIO MILLS 11

    ________________________ ____________________

    Amber Herrmann Date

    Panitch was notified on April 23, she was suspended and approximately 5 or so days later received a telephone call from Vice President of Human Resources Herrmann. Herrmann told Panitch she was going to fire her, but she would hear her side of the story. Panitch, “told her everything from the bar meeting to the bikini contest.” Panitch filed a charge with the Board regarding her discharge. The Board dismissed her charge.

    Panitch did not appeal the Board’s dismissal.

  8. The Company’s evidence

    General Manager Vidauri conducted a meeting in April with bartenders at the Ontario restaurant where he made comments about certain Hooter Girls not at the meeting. Thereafter Regional Director Peterson informed Vidauri there had been complaints about Vidauri’s comments and he and Vice President of Human Resources Herrmann were conducting an investigation.

    Vidauri testified Peterson told him the complaints came from Hooter Girls and concerned bad things Vidauri had said about them. After the investigation, Vidauri was given a written disciplinary action, and, Vice President of Human Resources Herrmann told him his conduct could not be tolerated and if it reoccurred he could be further disciplined or terminated. On direct-examination Vidauri testified, neither Panitch or Hanson ever spoke with him about the comments he made at the bartenders meeting; however, on cross-examination he said he could not recall if he, on the day of the bartender’s meeting...

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