Chip's Wethersfield, LLC d/b/a Chip's Family Restaurant

National Labor Relations Board - Administrative Judge Opinions

Sep 25, 2019

01-CA-217597 (N.L.R.B. Sep. 25, 2019)

JD–72–19
Wethersfield, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CHIP’S WETHERSFIELD, LLC d/b/a/
CHIP’S FAMILY RESTAURANT
and Case 01–CA–217597
JACQUELINE RODRIGUEZ,
AN INDIVIDUAL

Alan L. Merriman, Esq., and
Thomas E. Quigley, Esq.,
for the General Counsel.
David A. Ryan, Esq., and
Eric Desmond, Esq.,
New Haven, Connecticut,
for the Respondent.
Thomas John Durkin, Esq.,
Hartford, Connecticut,
for the Charging Party
DECISION
STATEMENT OF THE CASE
ELIZABETH M. TAFE, Administrative Law Judge. This case was tried in Hartford,
Connecticut, on November 5 and 6, 2018. Jacqueline Rodriguez, an individual charging party,
filed the charge on April 2, 2018, and amended the charge on May 24, 2018. The Acting
Regional Director for Region 1, Subregion 34, of the National Labor Relations Board (Board or
NLRB) issued the Complaint on July 18, 2018. The Complaint alleges that Chip’s Wethersfield,
LLC d/b/a Chip’s family restaurant (Respondent or Employer) violated Section 8(a)(1) of the
National Labor Relations Act (Act) by discharging Rodriguez because she engaged in protected
concerted activities and also by prohibiting employees from discussing work-related incidents
with other employees. The Respondent filed a timely answer in which it denied committing any
of the violations alleged.
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.
JD–72–19
2
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a restaurant in Wethersfield, Connecticut, where 5
it annually derives gross revenues in excess of $500,000, and purchases and receives goods
valued in excess of $50,000 directly from points outside the State of Connecticut. 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.
10
II. ALLEGED UNFAIR LABOR PRACTICES
A. FACTS
1. Background15
The Respondent, a restaurant business, has six locations in Connecticut, including the
Wethersfield restaurant where the events at-issue in this case took place. Jacqueline Rodriguez –
the charging party and alleged discriminatee – worked for the Respondent for 3 years starting in
October 2014. During most of that time she was a server waiting on tables, but the Respondent 20
promoted her to manager in the Summer of 2016 and she worked in that position for 3 to 4
months before choosing, for personal reasons, to return to a server position.
2. Issues Between Assistant Manager Olden and Staff, Events of
October 2, and Discharge of Rodriguez25
In the summer of 2017, the Respondent hired a new assistant manager – Santosha1 Olden
– to join another assistant manager, Joel Martinez, at the Wethersfield restaurant. When Olden
started working, George Chatzopoulos, the Respondent’s owner,2 told Olden and Rodriguez that
Olden should direct questions about how the restaurant operated to Rodriguez who was familiar 30
with such matters from her previous service as an assistant manager. From the start of Olden’s
tenure, she found herself at odds with some members of the staff. Ashely Curtis, a server who is
still employed by the Respondent, credibly testified that the servers complained about Olden
because she was not paying attention to what was going on in the restaurant, took her own breaks
at the busiest times of day, would stay in the office instead of helping on the floor, and was 35
treating server Denise Bachand unfairly. D. Bachand3 herself complained to Robertson about
how Olden was treating her. (Transcript page(s) (Tr.) 198-199.)
Charging Party Rodriguez complained to Chatzopoulos about Olden’s management of the
restaurant on multiple occasions beginning in August 2017. Rodriguez told Chatzopoulos that 40

1 This name provokes a variety of spellings in the record – including Santacha and Santasha. I use the
spelling that appears in the Complaint in a paragraph that the Respondent admitted.
2 The record suggests, but does not confirm, that Chatzopoulos’ sister, Dina Bajko, is a co-owner of
the Respondent and also one of its managers.
3 D. Bachand’s daughter, Ashley Bachand, also worked as a server at the Wethersfield restaurant. D.
Bachand, at approximately 60 years of age, was older than most of the servers at the Wethersfield
restaurant.
JD–72–19
3
she did not believe that Olden was ready to be left alone to manage the restaurant and that, when
possible, Martinez should be present to assist Olden. Chatzopoulos took action consistent with
this recommendation. Rodriguez also told Chatzopoulos that Olden created conflicts at the
restaurant and delayed unacceptably before performing her duties. She specifically raised the
servers’ perception that Olden was discriminating against server D. Bachand by, inter alia, 5
reducing the number of tables D. Bachand served, and scrutinizing her work more critically. In
addition to talking to Chatzopoulos, Rodriguez asked assistant manager Martinez, who she
believed had his own issues with Olden, to discuss this with Chatzopoulos.
In August or September of 2017, Chatzopoulos told Rodriguez that there would be a 10
meeting regarding the concerns that had been raised about Olden. Assistant manager Martinez
called the servers together and told them that, in preparation for a meeting, they should prepare a
list of their complaints regarding Olden. A group of servers that included Rodriguez, Ashley
Curtis, and Tammy Pino, had a 5-minute meeting to create the list. Curtis reduced the servers’
complaints about Olden to a written list during the meeting. The list read as follows:15
- Has something against Denise
- She doesn’t seat guests often, only watches the door
- Always on her phone
- Doesn’t help servers when slammed20
- Sits & eats during mid rush
- Doesn’t check in with guests
- Causes conflict w/ servers
- Sits in the office for extended periods of time
- Is in everyone[‘]s business in & out of work25
- Only acts like a manager when George comes in
- More worried about side work[4] than restaurant
- Doesn’t always go to tables w/allergies[5]
- Complains about when she works now much (sic)
- Tries to get other managers to work for her so she can leave early, or not come in30
(General Counsel Exhibit (GC Exh.) 3.) Curtis gave credible,6 uncontradicted, testimony that
these issues with Olden’s management of the restaurant impacted the working conditions of the
servers. In addition, I credit Rodriguez’s uncontradicted testimony that, in some instances,
Olden would reduce D. Bachand to tears, or would otherwise agitate her to such an extent that 35
other servers had to step in to perform D. Bachand’s work. Rodriguez personally delivered the

4 “Side work” refers to the cleaning and organizing that servers perform at the end of their shifts.
5 The Respondent’s policy is that when a patron informs the server about a food allergy, the server
informs the manager who then speaks with the patron.
6 I found Curtis particularly credible. She is current employee who testified under subpoena and
stated during her testimony that she “did not want to be involved in this” and “tried to keep . . . away from
this whole situation.” She testified in a calm and certain manner. In addition, by testifying against the
Respondent’s interests she was exposing herself to the risk of retaliation. See Murray American Energy,
Inc., 366 NLRB No. 80, slip op. at 8 fn. 6 (2018), Portola Packaging, Inc., 361 NLRB 1316, 1316 fn. 2
(2014), and Flexsteel Industries, Inc., 316 NLRB 745, 745 (1995), affd. mem. 83 F.3d 419 (5th Cir.
1996). A witness' status as a current employee is among the factors that a judge may utilize in resolving
credibility issues. See, e.g., DHL Express, Inc., 355 NLRB 1399, 1404 fn. 13 (2010).
JD–72–19
4
servers’ list of complaints to assistant manager Martinez. On October 1, Rodriguez, while
working at another one of the Respondent’s restaurants, spoke with Chatzopoulos, who told her
that he had “hired a person who was going to be handling” the issues at the Wethersfield
location. This was an apparent reference to the fact that a few days earlier – between September
26 and 30, 2017 – Chatzopoulos hired Anthony Cuozzo to serve as Respondent’s chief operating 5
officer (COO).
On October 2, 2017, the incident occurred that led the Respondent to suspend and then
discharge Rodriguez. At the relevant time on October 2, Olden, Rodriguez, and D. Bachand
were all on-duty at the Wethersfield location. It was approaching the end of the shift and D. 10
Bachand was told, that she was “off the floor” – meaning that she was to take no new customers
but would finish up her existing customers and complete the side work. During this time, D.
Bachand’s former spouse – a regular customer who ate at the restaurant two or three times every
week – arrived and asked to be served by D. Bachand. Olden stated that D. Bachand was “off
the floor” and refused to allow her to serve the customer. D. Bachand wanted to serve the 15
customer and protested to Olden but did not succeed in changing Olden’s mind. The customer
chose to walk out of the restaurant rather than be served by someone other than D. Bachand. D.
Bachand and Rodriguez discussed D. Bachand’s distress over what had happened. Rodriguez
believed that this was another example of Olden unfairly disfavoring D. Bachand. Although it
was true that servers who were still on the clock but off the floor did not usually take new 20
customers, Rodriguez’s experience was that exceptions were made for regular customers who
asked to be seated with a particular server. Granting such exceptions was consistent with the
value the Respondent placed on regular customers and with its policy, emphasized during a
recent training session, that staff should go above and beyond regular service in order to please
customers. During a subsequent discussion regarding this event, Chatzopoulos told Rodriguez 25
that if he had been present, he probably would have allowed D. Bachand to serve the regular
customer who requested her.7 (Tr. 80-81.)
After D. Bachand discussed what had happened with Rodriguez, Rodriguez approached
Olden to protest what she perceived to be an example of the unfair treatment of D. Bachand that 30
servers had recently complained about.8 Their conversation took place in the restaurant’s “server
aisle” – an area that is separated from the dining area by a wall/partition and where they were not
within the sight of customers. Servers and managers use the server aisle to talk about workflow

7 I do not reach a determination about whether Olden was right or wrong to give precedence to the
policy about servers who were off the floor over the policy of “above and beyond” customer service. I
do, however, credit Rodriguez’s testimony that she believed Olden’s decision to do so was tainted by
animosity towards D. Bachand. As already noted, a group of servers, including Rodriguez, had recently
complained to management that Olden had something against D. Bachand.
8 Rodriguez was the only witness to the October 2 exchange who testified at trial. In the absence of
any contrary testimony from a witness to event, I fully credit Rodriguez’s account about the incident.
That testimony was facially credible and consistent and was not rebutted by any contemporaneous
evidence or meaningfully undermined on cross-examination. At trial, Laura Robertson and Anthony
Cuozzo – two managers – characterized the October 2 exchange in ways that were contrary to
Rodriguez’s account and portrayed her as more disruptive. I give Robertson’s and Cuozzo’s contrary
versions no weight regarding what transpired between Rodriguez and Olden on October 2. Not only did
neither of them actually witness any part of the exchange, but the Respondent’s contemporaneous
documentation does not corroborate their assertion that Rodriguez raised her voice at Olden.
JD–72–19
5
and other work-related matters. Rodriguez told Olden that she believed the refusal to allow D.
Bachand to serve the customer was inconsistent with the Respondent’s “above and beyond”
customer service training and also opined that Olden had refused to permit it because the server
was D. Bachand. Rodriguez did not raise her voice at any point during the exchange, but Olden
reacted by yelling “I’m the manager, I make the decisions.” Rodriguez responded that there was 5
going to be a meeting regarding servers’ complaints about Olden. After the exchange Rodriguez
resumed working and completed her shift. There is no suggestion that Rodriguez or D. Bachand
refused any directive from Olden or that they failed to perform any of their duties during the
shift. There were no customer complaints indicating that guests had been aware of the exchange.
10
After the exchange between Olden and Rodriguez, but before Rodriguez finished her
October 2 shift, Olden contacted Laura Robertson (general manager) and Anthony Cuozzo (the
chief operating officer who had been hired a few days earlier) by telephone regarding the fact
that D. Bachand and Rodriguez had protested her decision not to allow D. Bachand to serve the
customer. Robertson, after discussing the matter with Cuozzo, told Olden to issue warning 15
notices to both Rodriguez and D. Bachand at the end of their shifts, and to suspend both servers
for the rest of the week while the Respondent investigated the incident. Olden prepared a
warning notice for Rodriguez and, after Rodriguez had clocked-out for the day, Olden asked her
to come into the office. Rodriguez responded that she did not feel comfortable meeting with
Olden without another manager present. At trial, Rodriguez testified that she had observed 20
Olden preparing the disciplinary notice and was afraid that Olden would misrepresent their
conversation if it was held without another manager present. Olden said “you have to,” but
Rodriguez declined to meet with Olden without another manager present and left the premises.9
On the same evening as the incident, Robertson sent text messages to Rodriguez and D. 25
Bachand advising them that they had been taken off the schedule. When she received the
message, Rodriguez telephoned Chatzopoulos, with whom she had worked closely in the past,
intending to explain what had happened. Before Rodriguez was able to do so, Chatzopoulos
yelled “you think you’re a manager,” and stated, “I’m going to the store and I’m going to check
the cameras, and everybody is going to get fired.”10 He ended the call without allowing 30
Rodriguez to provide an account. That night, Rodriguez sent an email addressed to
Chatzopoulos, with copies to Bajko and Cuozzo, in which Rodriguez discussed her past service
to the Respondent, including as a manager. She conceded that she probably did not have the
right to question management, but that in her experience if Chatzopoulos had been present he

9 The employee warning notice that Olden prepared on October and planned to give to Rodriguez
stated that the offense was “insubordination / in front of other employees and guests.” The description
given is as follows:
You approach me questioning why I made a decision to have another server take Denise B ‘s ex-
husband When I expressed she was cut off the floor @ 1:00 pm and he came in @ 1:40. Saying
you are going to call George and you can’t wait to tell about me @ the meeting with the new
[illegible] saying you were sick of me and tired dealing with me. Saying I may have the right but
it turned a guest away. Wanting to argue on line about the decisions I made is unacceptable.
To the extent that this writing differs from Rodriguez’s testimony about the incident I credit Rodriguez’s
testimony. The disciplinary notice was not a sworn statement, and Olden was not called as a witness to
testify under oath and subject to examination by counsel.
10 The record does not reveal whether there were, in fact, cameras at the facility that did record, or
would be expected to have recorded, any of the events of October 2.
JD–72–19
6
would have honored the customer’s request. Rodriguez also stated that she believed honoring
the request was consistent with customer service training the Respondent had recently provided
to employees, and that by raising the matter she had not intended to interfere with Chatzopoulos’
business but to “stand up” for it.
5
Chatzopoulos did not respond to this email, but Cuozzo responded in an email on the
morning of October 3. Cuozzo testified that Chatzopoulos had directed him to investigate the
incident. Unlike Chatzopoulos and Bajko with whom Rodriguez was well-acquainted, Cuozzo
was a brand-new manager who was not familiar with Rodriguez. In the October 3 email, Cuozzo
told Rodriguez that “[w]e need to ensure that the mgmt team is supported at all levels, from the 10
lowest to the highest.” He stated that “this occurrence will be thoroughly investigated,” and that
“there are certainly two sides to every occurrence.” Robertson informed Rodriguez by email that
the Respondent would meet with her at the Wethersfield restaurant on Thursday, October 5.
On October 4, Rodriguez sent an email to Bajko – a manager who Rodriguez knew well 15
and who the Respondent had told her was a co-owner. In the email, Rodriguez asked Bajko to
attend the upcoming meeting. Rodriguez stated she had talked to Chatzopoulos and Robertson
about issues at the Wethersfield location multiple times prior to October 2, but that a promised
meeting about those issues had not taken place. She also reported that “[i]t was brought to my
attention yesterday that [Olden] was going around the store talking about the incident and saying: 20
‘These servers better not think they are getting away with this, I have [Robertson and Cuozzo] on
my side and servers are going to be moved around to other stores.’” Rodriguez copied
Chatzopoulos, Cuozzo, and Robertson on this email to Bajko.
On October 4, within minutes of when Rodriguez sent the above email to Bajko, she 25
received an email response – but from Cuozzo, not Bajko. Cuozzo’s email stated:
Rest assured, if the need arises you and I will indeed speak. I will
not interfere with the daily management of a location unless I deem that it
is necessary. Please trust that all employees will have the opportunity to 30
tell their version of the incident, no prejudgment will occur. I will not
engage in id[le] chatter and gossip regarding the incident and neither
should you. Nor should you be discussing conversations the management
team may or may not have had with other employees, unless you are
witness to the conversations personally. People are going speculate and 35
frankly, its non-one[‘]s business but those directly involved.
Please allow the process to continue and allow Laura [ Robertson]
to conduct her inquiry.
40
(GC Exh. 7.) Cuozzo testified that, in this email, he was “restricting [Rodriguez] from speaking
to anybody about this issue in total,” and that there were two reasons for this. First, he stated that
by speaking about the matter Rodriguez would “make things a bit more harder for us to get a
clear idea of what happened.” Second, he stated that he did not want Rodriguez “to advocate for
everybody.” (Tr. 274.) Bajko herself did not respond to Rodriguez’s request that she attend the 45
upcoming meeting, and did not, in fact, attend.
JD–72–19
7
On Thursday, October 5, Cuozzo and Robertson met with Rodriguez at the Wethersfield
restaurant. Chatzopoulos was present at the restaurant at the time but joined the meeting only
after Rodriguez asked him to do so. Robertson asked Rodriguez what had happened, and
Rodriguez began by raising some of the complaints about Olden that servers had included on the
list they provided to management. In addition, Rodriguez complained that several weeks earlier, 5
on September 18, a cook – Carlitos – had threatened her with physical violence, and that she told
Olden,11 but that Olden had not taken any action regarding the threat.12 Cuozzo testified that,
during the meeting, Rodriguez continued to raise the group complaints that servers had about
Olden’s management of the restaurant. (Tr. 257-258, 261-262.) Similarly, Robertson testified
that Rodriguez had to be “refocused” from those complaints to narrowly address the events of 10
October 2. Rodriguez described the incident and took issue with what she characterized as
Olden turning away a regular customer. Cuozzo testified that Rodriguez was not apologetic and
did not admit wrongdoing regarding the incident on October 2. At the end of the meeting, which
lasted for approximately 15 to 30 minutes, Cuozzo told Rodriguez that she would remain off-the-
schedule during further investigation. 15
As discussed above, Cuozzo testified that Chatzopoulos directed him to investigate the
October 2 event. Regarding the particulars of his investigation, Cuozzo testified that he told
Olden to reduce her complaint to writing, and then “reached out” to Olden and asked her to
“reiterate” what was going on. (Tr. 255-256.) The documentary evidence includes the 20
disciplinary notice that Olden prepared for Rodriguez on October 2 but does not include any
other written complaint from Olden, nor does it include any document setting forth Cuozzo’s
account of what Olden said in response to his request that she “reiterate” the situation.
Robertson and Cuozzo conducted the October 5 meeting, described above, in which they allowed
Rodriguez to give her account of the incident. During that meeting, and with Chatzopoulos 25
present, Rodriguez also raised the group complaints that servers had about Olden’s conduct.
That same day, Cuozzo and Robertson also met with D. Bachand. Cuozzo testified that D.
Bachand was apologetic, “humble and accepted her role in the incident.” Cuozzo contrasted this
with Rodriguez, who was not apologetic. Cuozzo testified that his investigation was also
“based” on Rodriguez’s personnel folder. Cuozzo did not claim that he obtained the accounts of 30
any other persons who may have witnessed what happened on October 2 between Rodriguez, D.
Bachand, and Olden, but were not participants. At trial, Robertson testified that before making
her recommendation she talked to assistant manager Joel Martinez. However, Robertson did not
reveal what Martinez told her during this conversation, and there is no documentary evidence
summarizing the interview. Martinez himself was not called as a witness.35

11 The Respondent’s employee handbook has a section that encourages employees to report any
threats of physical violence to management and states that employees who do so “will not be adversely
affected as a result of reporting.” (GC Exh. 4 at 9 to 10.) The same section states that in response to any
such report, management “will take prompt investigatory actions and corrective and preventative actions
where necessary.”
12 Rodriguez testified that, to her knowledge, no action was taken regarding the threat. Robertson
testified that she investigated the threat and had told Rodriguez what she had done. To the extent that
Rodriguez’s and Robertson’s testimonies are inconsistent on this point, I credit Rodriguez over
Robertson’s. On cross-examination, Robertson conceded that there was no documentation at all
regarding an investigation of Rodriguez’s report, that she did not remember when she told Rodriguez
about her investigation or its results, and that she did not discipline anyone regarding the incident. (Tr.
201-202.)
JD–72–19
8
According to Cuozzo, he “forwarded [his investigation] up for their recommendation.”
The documentary evidence does not include an investigation report from Cuozzo to Robertson,
Chatzopoulos or anyone else in management. Rather, the next documentary evidence regarding
the disciplinary investigation is Robertson’s October 7 email to Chatzopoulos and Cuozzo in 5
which she gave an account of the October 5 interviews with Rodriguez and D. Bachand and
made recommendations for disciplining them. Regarding Rodriguez, Robertson stated:
[Rodriguez] has had several other write ups for insubordination13 and it
seems like it will continue to be an ongoing issue. I truly believe that she 10
has good intentions and does care about the company. She is a great
server and a hard worker. Unfortunately, as [I] said before, I feel like the
issue of being insubordinate will continue which is not conducive to
having a strong and connected staff that works as a team. I think it is
better off if we part ways. 15
(Respondent’s Exhibit 9.)14 Nothing in Robertson’s email suggests that Rodriguez raised her
voice on October 2, or that she created a disturbance in the presence of customers.
Regarding the interview with D. Bachand about the October 2 incident, Robertson’s 20
email stated, “I made it clear to [D. Bachand] that management should not be questioned.”
Regarding disciplinary action, Robertson stated that “I feel that [D. Bachand] understood where I
was coming from,” and “I would like to give [D. Bachand] another chance,” but wanted to
impose “one more week suspension so she can realize how serious it is,” and that “if there any
other incidents involving what we talked about she will be immediately terminated.” 25
Cuozzo testified that the investigation showed that Rodriguez had been insubordinate on
October 2. (Tr. 259-260.) He did not, however, identify any work that Rodriguez refused to
perform or any management order that Rodriguez had failed to follow during her shift. He stated
that he concurred with Robertson’s recommendation that Rodriguez be discharged and that 30
Chatzopoulos made the “ultimate” decision. Ibid. Chatzopoulos testified that, to the contrary, he
did not make the final decision or instruct anyone else to discharge Rodriguez. (Tr. 275-276,
286-287.) Chatzopoulos first said that he let Cuozzo make the decision because he wanted

13 The record shows that Rodriguez had two disciplinary write-ups that referenced insubordination,
the most recent of which was issued on October 24, 2015, almost 2 years prior to when Robertson
recommended her termination for the October 2, 2017 incident. Rodriguez received no disciplinary write-
ups for insubordination, or anything else, during the period between the October 24, 2015, warning and
the events of October 2, 2017. The prior disciplinary write-ups that Rodriguez received were as follows:
10/24/14 warning notice for failing to contact a manager when she provided the wrong dish to a customer;
11/2/14 warning for failing to notify a manager that a customer had specified an allergy issue when
placing an order; 12/10/14 warning citing insubordination for making grits after being told that she could
not help make grits; 6/15/15 two warnings on the same day for failing to properly report cash tips; and the
aforementioned 10/24/15 final warning citing insubordination based on Rodriguez attempting to resolve a
guest complaint without bringing it to a manager’s attention.
14 Robertson’s email recommending Rodriguez’s termination makes no mention of Rodriguez’s
complaint that Carlitos threatened her with physical violence. At trial, however, Robertson asserted that
the Rodriguez-Carlitos matter was one of the reasons that she recommended Rodriguez’s discharge.
JD–72–19
9
Cuozzo to have “the opportunity to be the boss.” (Tr. 275-276.) Later Chatzopoulos stated that
the decision was made by Robertson and Cuozzo together. (Tr. 286-287.)
In an email on October 8, 2017, Robertson informed Rodriguez that she was discharged.
The body of the October 8 email reads in its entirety:5
After the discussion on Thursday with Anthony [Cuozzo] and George
[Chatzopoulos], we have decided that it would be better for us to part
ways. We appreciate everything you have done with and for our company
over the years, but we feel like this will [ be] in the best interest for both 10
parties. We wish you luck on your future endeavors. If there are any
questions please contact Anthony [Cuozzo, email address].
Keep in touch.
15
(GC Exh. 8.) Three days later, on October 11, Rodriguez sent an email to Cuozzo in which she
referenced Robertson’s October 8 communication and asked to know what led to her
termination. Cuozzo never responded to this email or otherwise provided Rodriguez with a
reason why the Respondent decided that her discharge was “in the best interest for both parties.”
The record does not show that anyone else at the Respondent told Rodriguez the specific basis 20
for her discharge.
Two months after the Respondent discharged Rodriguez, it discharged Olden. Olden’s
employment with the Respondent lasted about 6 months.
25
3. Reasons Given at Trial for Respondent’s
Decision to Discharge Rodriguez
In their trial testimonies, Robertson and Cuozzo provided explanations for Rodriguez’s
termination that go beyond those discussed in the Respondent’s contemporaneous documentation 30
and/or are inconsistent with what the record shows happened on October 2. Both claimed that
one of the bases for the Respondent’s disciplinary response to the October 2 exchange was that
Rodriguez got loud, or yelled, at Olden in front of customers and other employees. (Tr. 189,
214-215, 269-270.) As noted above, Rodriguez did not raise her voice to Olden and the
exchange took place in an area that was out of view of customers. The Respondent did not 35
present testimony from anyone who was a witness to the October 2 interaction to support the
assertion that Rodriguez yelled or created a disturbance that was visible to customers. The
Respondent did not even present supporting documentary evidence – such as investigatory
reports or written accounts from persons who witnessed the exchange – to support Robertson’s
and Cuozzo’s claim that Rodriguez raised her voice. The disciplinary write-up that Olden 40
prepared states that Rodriguez said she was sick of Olden and was looking forward to raising
matters with Chatzopoulos but did not claim that Rodriguez raised her voice. Similarly,
Robertson’s email recommending that Rodriguez be discharged – the closest thing to an
investigative report that the Respondent presented at trial – does not suggest that Rodriguez
raised her voice or that the exchange occurred in front of customers. In the absence of such 45
testimony or documentary evidence I give no weight to the Robertson’s and Cuozzo’s hearsay
testimony that Rodriguez had yelled at Olden in the presence of customers. Based on my review
JD–72–19
10
of the record evidence I find not only that Rodriguez did not in fact raise her voice in front of
customers, but also find that Robertson and Cuozzo were not shown to have a reasonable basis
for believing that she had done so at the time they disciplined her The testimony of Robertson
and Cuozzo to that effect was self-serving, contrary to the competent evidence about what
actually occurred, and undercut by the absence of any mention of Rodriguez raising her voice in 5
the documentary evidence from the time of the discharge decision.
Robertson testified that the decision to discharge Rodriguez was also based, in part, on
her interaction with a cook, Carlitos, on September 18. (Tr. 208.) That interaction concerned an
instance in which Rodriguez tried to expedite a delayed food order by giving the order to Carlitos 10
in writing so that he could begin preparing it prior to her entering the order into the restaurant
computer. The Respondent’s procedure was that orders to the kitchen had to be submitted using
the computer. Carlitos declined to begin preparing the food based on the written order and
instead waited for Rodriguez to finish entering the order into the computer. Rodriguez objected,
including by telling Carlitos that he was “being very immature” and that customers were waiting. 15
Rodriguez did not raise her voice,15 but Carlitos responded by making statements that Rodriguez
understood as threats of physical violence. The next day, Rodriguez sent an email to
Chatzopoulos stating that she had tried to get Olden to take action about the threats and asking
Chatzopoulos to deal with the situation before it escalated. Subsequently, at the October 5
meeting Rodriguez raised Olden’s handling of the September 18 threat as an example of 20
management problems at the Wethersfield location.
Robertson testified that she investigated the September 18 incident and that she did not
impose any discipline as a result of it. (Tr. 201-202.) Contradicting her own statement that she
did not impose discipline, Robertson claimed at trial that the disciplinary action against 25
Rodriguez was based in part on the September 18 incident. It is surprising to me that Robertson
would raise Rodriguez’s own report that Carlitos threatened her with physical violence – a report
that Robertson does not suggest was false – in an effort to support the decision to discipline
Rodriguez (not Carlitos). It is particularly surprising in light not only of the fact that Robertson
made no mention of that incident in her October 7 email explaining her recommendation to 30
discharge Rodriguez , but also of the fact that the Respondent has an express policy that
employees “will not be adversely affected as a result of reporting” such threats, (GC Exh. 4, at 9
to 10) and of the fact that Robertson conceded that she did not impose any discipline based on
the September 18 incident. I find that the Respondent was not contemplating any disciplinary
action against Rodriguez based on the September 18 incident and that the decision to discharge 35
Rodriguez was not based on the September 18 incident.
4. Comparative Discipline
The parties presented evidence regarding discipline that the Respondent issued to other 40
employees. This includes documentation of multiple instances in which the Respondent

15 Rodriguez was the only witness to this incident who testified, and she clearly and credibly stated
that she had not raised her voice during the exchange. (Tr. 165-166.) Nevertheless, Counsel for the
Respondent makes the frivolous claim that Rodriguez not only raised her voice but did so in the presence
of customers. Brief of Respondent at Page 4. I reject that claim which is unsupported by competent
evidence.
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11
disciplined other employees for insubordination or arguing with a manager.16 In none of those
instances was the employee terminated for the offense and, indeed, Robertson conceded that she
was not aware of anyone other than Rodriguez who the Respondent had ever terminated for
insubordination. In most cases the individual received a warning. This included some cases of
conduct that was facially more severe than what Rodriguez was disciplined for. For example, on 5
September 15, 2018, the Respondent issued a warning to a dishwasher who raised his voice and
threw a syrup bottle at the wall in section of the restaurant where customers are served. (GC
Exh. 20.) On October 3, 2017, the Respondent issued a warning to an employee who appeared
intoxicated, was belligerent, and stormed out of the restaurant without finishing his duties. Ibid.
Close in time to the Rodriguez’s discipline, the Respondent, on October 9, 2017, issued a 10
warning to a server who argued with Olden about a work direction. Ibid. D. Bachand, received
a suspension, not termination, for her part in protesting Olden’s refusal to grant a regular
customer’s request to be served by D. Bachand. Ibid. The record shows that the Respondent
consistently allowed employees off with a warning even when the employee was rude in the
presence of customers, or even to customers, and even when a customer complained to 15
management. (GC Exh. 24.)
The only employee other than Rodriguez who the Respondent showed that it had
discharged for disciplinary reasons was an employee who threatened to assault other employees
and to return to the facility with a weapon. (GC Exh. 22.) The Respondent took those threats 20
seriously enough that it summoned police to the facility. Ibid.
ANALYSIS
A. DISCHARGE OF RODRIGUEZ 25
The Complaint alleges that Rodriguez had, since about August 2017, engaged in
protected concerted activity with other employees by criticizing Olden’s conduct as assistant
manager and Olden’s treatment of a coworker, and that the Respondent violated Section 8(a)(1)
by discharging Rodriguez on October 8, 2018 because she engaged in that protected activity.30
The first question is whether Rodriguez engaged in concerted activities protected by the
Act. An employee engages in protected concerted activity when he or she acts “’with or on the
authority of other employees and not solely by and on behalf of the employee himself.’” Entergy
Nuclear Operations, 367 NLRB No. 135, slip op. at 12 (2019), quoting Meyers Industries, 268 35
NLRB 493, 496-497 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985),
cert. denied 474 U.S. 971 (1985), on remand, Meyers Industries, 281 NLRB 882 (1986) (Meyers
II), enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205
(1988). The evidence shows that the Respondent engaged in such activity. The most clear-cut
instance occurred when, during the August or September before her termination, Rodriguez 40
gathered with other servers to compile the servers’ list of complaints about Olden’s management
of the restaurant and then Rodriguez personally transmitted that list to management. The list,
which is set forth in its entirety in the statement of facts, includes multiple complaints that Olden

16 The Respondent’s employee handbook lists “insubordination or other disrespectful conduct” as
being prohibited by its rules of conduct) but does not define insubordination or set forth a schedule of
progressive disciplinary responses to such conduct. (GC Exh. 4 at 29.)
JD–72–19
12
was shirking work in ways that placed increased burdens on the servers. For example, Olden
was said to be failing to seat guests, failing to “help servers when slammed,” and choosing to
take her own meal break during the rush period. The servers also complained that Olden “caused
conflicts with servers,” and in particular that she had “something against” D. Bachand. Olden’s
alleged mistreatment of D. Bachand directly affected the terms and conditions of other servers 5
because, inter alia, the treatment sometimes led D. Bachand to become so upset that she could
not carry out her duties and other servers had to add some of her workload to their own. By
creating a list of group complaints and presenting it to management, the participating servers,
including Rodriguez, were engaging in the sort of “concerted activities for . . . mutual aid or
protection,” that is expressly protected by Section 7 of the Act, and the Board has consistently 10
recognized similar group protests as such. Rhee Bros., Inc., 343 NLRB 695 fn. 3 (2004);
Superior Travel Service, 342 NLRB 570, 574 (2004); Astro Tool & Die Corp., 320 NLRB 1157,
1162 (1996), and Brother Industries, 314 NLRB 1218 (1994) Liberty Natural Products, Inc., 314
NLRB 630, 638 (1994); Meyers Industries, 268 NLRB at 497. In Hacienda Hotel, Inc., for
example, the Board affirmed that employees engaged in protected activity by collectively 15
complaining to a manager about her alleged mistreatment of two coworkers, because “group
complaints about the quality of supervision are directly related to working conditions and fall
within the ‘rubric’ of protected concerted activities.” 348 NLRB 854, 864 (2006). And, in
Kysor Industrial Corp., for example, the Board determined that disciplining employees for
collectively inquiring about work assignments violated Section 8(a)(1), and that the employees’ 20
Section 7 protections attached, notwithstanding that the employer may not have understood the
legal consequences of its actions. 309 NLRB 237, 237-238 (1992).
I find that Rodriguez also engaged in protected concerted activity on October 2 when she
protested that Olden had discriminatorily refused to allow D. Bachand to serve a customer who 25
requested to be served by her. This was concerted activity not only because Rodriguez and D.
Bachand had discussed their concerns before Rodriguez raised them with Olden, but also
because it grew out of the earlier list of complaints that the servers had created and that
Rodriguez had personally delivered to management – specifically the item complaining that
Olden “has something against” D. Bachand. The Board has held that even a lone employee’s 30
protest to management is concerted activity where, as here, it “grew out of [an] earlier concerted
complaint regarding the same subject matter.” JMC Transport, 272 NLRB 545, fn. 2 (1986),
enfd. 776 F.2d 612 (6th Cir. 1985). Rodriguez was acting with other employees – both D.
Bachand and the other servers who created the list of complaints – when she made her complaint
to Olden on October 2. Rodriguez’s protected activity extended to the interview on October 5 35
when, as Cuozzo conceded, Rodriguez continued to advocate on behalf of a group of servers.
The Respondent defends its decision to discharge Rodriguez by raising Rodriguez’s
conduct in the course of otherwise protected activity on October 2. Where, as here, an employer
defends its discipline of an employee by raising the employee’s conduct in the course of 40
otherwise protected activity, the Board’s decision in Atlantic Steel Co., 245 NLRB 814 (1979),
provides the appropriate analytic framework for determining whether the discipline is
discriminatory in violation of Section 8(a)(1).17 See also Entergy Nuclear, above, Lou's

17 Recently, the Board issued a notice and invitation to file briefs in General Motors, LLC, 360 NLRB
No. 68 (September 5, 2019). In so doing, the Board seeks public input regarding whether to reconsider the
application of Atlantic Steel, above, in factual situations where an employee is disciplined for outbursts in
JD–72–19
13
Transport, Inc., 361 NLRB 1446 (2014); United States Postal Service, 360 NLRB 677 (2014),
Aluminum Co. of America, 338 NLRB 20, 22 (2002).18 Under Atlantic Steel, since the
Respondent defends the discharge of Rodriguez by reference to her October 2 protest to Olden,
the question is whether in the course of that otherwise protected activity Rodriguez engaged in
conduct that was so egregious or opprobrious as to cause her to forfeit the Act's protection. 5
Desert Springs Hospital Medical Center, 363 NLRB No. 185, slip op. at 13 (2016); Aluminum
Co. of America, 338 NLRB 20, 22 (2002); Atlantic Steel Co., above. See also Lou's Transport,
Inc., above; United States Postal Service, above. The determination about whether an
employee's conduct in the course of otherwise protected activity is sufficiently egregious or
opprobrious to forfeit the Act’s protection is based on a balancing of four factors: (1) the place of 10
the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst;
and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice.
Atlantic Steel, above at 816; see also Entergy Nuclear Operations, above (same), Meyer Tool,
Inc., 366 NLRB No. 32, slip op. at 1 fn. 2 (2018) (same), United States Postal Service, above at
677 fn. 2 and 683 (2014), and Stanford Hotel, 344 NLRB 558 (2005) (“When an employee is 15
discharged for conduct that is part of the res gestae of protected concerted activities, the
pertinent question is whether the conduct is sufficiently egregious to remove it from the
protection of the Act.”). This framework balances employees' rights under the Act and the
employer's interests in maintaining workplace order and discipline. Triple Play Sports Bar &
Grille, 361 NLRB 308 (2014), affd. by summary order 629 Fed.Appx. 33 (2d Cir. 2015); see 20
also Piper Realty, 313 NLRB 1289, 1290 (1994) (“[E]mployees are permitted some leeway for
impulsive behavior when engaging in concerted activity, [but] this leeway is balanced against an
employer's right to maintain order and respect.”).
I find that the first factor under Atlantic Steel – the place of the discussion – weighs in 25
favor of finding that the Rodriguez did not forfeit the protection of the Act in the course of her
protected protest to Olden. Rodriguez addressed Olden in the server aisle, an area that was
separated from where customers were situated, and which servers and managers used for work-
related discussions. Due to the presence of a wall/partition, Rodriguez and Olden were out of
view of customers during the exchange in the server aisle. In addition, since Rodriguez did not 30

the course of union or protected-concerted activity that involve the use of profanity, vulgarity, or racially
or sexually offensive language. As discussed in detail herein, there is no allegation and, certainly, an
absence of any evidence to suggest, that Rodriguez engaged in statements that involved vulgarity,
profanity, or racially or sexually offensive language. Therefore, I proceed in applying Atlantic Steel and
related cases here, which, in any case, remain current Board precedent pending reconsideration of the
issues in the GM case.
18 The Respondent attempts to muddy the waters by referencing the circumstances of Rodriguez’s
complaint that she was threatened by a cook on September 18, and by revisiting disciplinary warnings
that Rodriguez received approximately 2 to 3 years earlier. I find that those are red herrings that had
nothing to do with the Respondent’s decision to initiate disciplinary action against Rodriguez. The
Respondent does not claim, and the evidence does not show, that the Respondent was contemplating
disciplinary action against Rodriguez prior to her protected protest on October 2. After Cuozzo and
Robertson received Olden’s report, the Respondent immediately suspended Rodriguez from the schedule
and never permitted her to return to work. Even if the September 18 incident or the stale prior discipline
had some bearing on the level of discipline the Respondent settled upon, the fact remains that the
Respondent defends the discharge based on Rodriguez’s protected activity on October 2 and does not
claim, and cannot reasonably claim on the record here, that it would have disciplined her in the absence of
that activity.
JD–72–19
14
raise her voice, and no customers complaints were received about the exchange, it is reasonable
to infer that customer experience was not negatively impacted by Rodriguez’s protected activity.
There was no evidence that employees other than D. Bachand (who had herself already
approached Olden and Rodriguez about the matter) were aware of the exchange. The evidence
suggests that the place of the exchange did not cause an undue burden on the Respondent’s 5
“interests in maintaining workplace order and discipline.” Triple Play, above.
The subject matter of the discussion also weighs in favor of continued protection.
Rodriguez and D. Bachand were protesting an instance of what they perceived as Olden’s
mistreatment of D. Bachand, a matter a group of servers considered so significant that they 10
included it first in the list of complaints that they had recently submitted to the Respondent.
Collectively complaining to a manager about his or her alleged mistreatment of coworkers is
“directly related to working conditions and fall[s] with the ‘rubric’ of protected concerted
activities.” Hacienda Hotel, 348 NLRB at 864.
15
The third factor – “the nature of the outburst” – also weighs in favor of continued
protection. In fact, Rodriguez’s protest does not, in my view, even rise to the level of an
“outburst.” She protested Olden’s treatment of D. Bachand without raising her voice and in an
area of the facility where servers and managers could, and did, communicate out of the presence
of customers. There is no suggestion that she used vulgar language or that she threatened 20
violence or other inappropriate conduct. When Olden rebuffed Rodriguez by stating “I’m the
manager, I make the decisions,” Rodriguez responded that she would be discussing the matter
during a future meeting with management. Moreover, although Rodriguez was critical of Olden
and made the protest in the workplace, she was not insubordinate in the sense of failing to
comply with a management directive during her work time. To the contrary, after 25
communicating the protest, she returned to her duties and completed her shift. The way
Rodriguez conducted herself during the exchange was measured and appropriate and weighs
heavily in favor of continued protection.
The fourth factor, whether the “outburst was, in any way, provoked by an employer's 30
unfair labor practice,” weighs neither for nor against continued protection. It is true that the
evidence does not show that Rodriguez was provoked by an unfair labor practice, since it was
not shown that Olden’s treatment of D. Bachand was an unfair labor practice. On the other
hand, the analysis under this factor is not confined to circumstances in which the employer’s
provocation is actually alleged to be an unfair labor practice. Nexteer Automotive Corp., 368 35
NLRB No. 47, slip op. at 10 (2019); Meyer Tool, Inc., above, slip op. at 13; Network Dynamics
Cabling, Inc., 351 NLRB 1423, 1429 (2007); Overnite Transportation Co., 343 NLRB 1431,
1438 (2004). In this instance, Rodriguez’s protest was provoked by what she believed to be
another example of Olden’s unfair treatment of a coworker, a matter that a group of servers had
already complained about to management. 40
In summary, I find that the first three Atlantic Steel factors, taken together, weigh heavily
in favor of continued protection and that the fourth factor is neutral. Even if one believes that the
fourth factor weighs against continued protection, it does so only lightly and would be easily
outweighed by the three factors favoring continued protection. Therefore, I find that Rodriguez 45
did not forfeit the Act’s protection for her otherwise protected activity on October 2.
JD–72–19
15
Counsel for the Respondent, in the post-hearing brief, attempts to justify Rodriguez’s
discharge through relentless repetition of the assertion that Rodriguez yelled in front of
customers. Apparently, the Respondent’s counsel believes that such repetition can take the place
of competent evidence. The only competent, nonhearsay, evidence credibly establishes that
Rodriguez did not raise her voice and that the exchange was not in the presence of customers. At 5
any rate, Robertson and Cuozzo made statements indicating that the real source of their
conviction that Rodriguez had forfeited the Act’s protection was their view that an employee
forfeits protection by questioning a manager. In Robertson’s October email explaining her
disciplinary recommendations, she stated that “management should not be questioned.” In
Cuozzo’s email to Rodriguez in the hours after her suspension, he stated that “[w]e need to 10
ensure that the mgmt. team is supported at all levels.” At trial he explained his actions in part by
stating that he did not want Rodriguez to “advocate for everybody” and that during the October 5
meeting Rodriguez raised problems that a group the servers supervised by Olden were having.
Contrary to Robertson’s and Cuozzo’s views, when an employee presents management with
group complaints that seek to improve the group’s lot as employees, that employee is not 15
engaged in misconduct that vitiates the Act’s protections, but rather, he or she is engaged in
precisely the sort of conduct that the Act protects.
Since the Respondent discharged Rodriguez based on her conduct while engaged in
otherwise protected activity on October 2, 2017, and since her conduct in the course of that 20
activity did not cause her to forfeit the Act’s protection, the Respondent’s decision to discharge
Rodriguez violated Section 8(a)(1) of the Act.19

19 The Respondent makes no mention of Atlantic Steel in its brief and makes only passing reference to
the Board’s decision in Wright Line, which sets forth a different mode of analysis. 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 Wright Line analysis is not appropriate where, as here,
the employer defends the disciplinary action based on conduct that is part of the res gestae of the
employee’s otherwise protected concerted activity. Entergy Nuclear Operations, 367 NLRB No. 135, slip
op. at 1 fn. 1 (2019). Even if Wright Line were the proper mode of analysis it would not change the result
here. The evidence establishes that hostility towards Rodriguez’s protest on October 2 was a motivating
factor in her discharge not only because the Respondent readily admits that it was, but also because of
statements that Robertson and Cuozzo made to explain their actions. As noted previously, Robertson
explained her disciplinary recommendations by stating that “management should not be questioned” and
that Rodriguez had failed to learn that management “was not to be questioned in the moment.” Similarly,
Cuozzo explained actions he took relative to Rodriguez’s October 2 protest by stating that he did not want
Rodriguez to “advocate for everybody.”
Relevant to a Wright Line analysis, it is also clear that the Respondent has failed to show that it would
have taken the same action for legitimate reasons even if Rodriguez had not engaged in her protected
activity. As is summarized in the statement of facts, the record shows that there were multiple other
instances in which the Respondent disciplined an employee for purported insubordination, but that
Rodriguez was the only one of those employees upon whom it imposed the ultimate sanction of
discharge. In fact, the Respondent issued only a warning in cases where the employee’s insubordination
was facially more extreme, not only than anything that Rodriguez did, but was more extreme than
anything that the Respondent inaccurately asserts that she did. For example, an employee received only a
warning for insubordination after he raised his voice and threw a bottle against a wall in the section of the
restaurant where customers were served. Moreover, although the Respondent tries to resurrect 2 to 3-year
old disciplinary warnings against Rodriguez the Respondent had long treated that discipline as stale. In
the summer of 2016, subsequent to all the prior disciplinary actions against Rodriguez, the Respondent
JD–72–19
16
B. CUOZZO’S OCTOBER 4 EMAIL
The General Counsel also alleges that Cuozzo’s October 4 email to Rodriguez violated
Section 8(a)(1) of the Act by prohibiting employees from discussing work-related incidents with
other employees. Employees have a right under the Act to talk to other employees about matters 5
under investigation and an employer interferes with that right by instructing employees not to do
so. The Boeing Company, 362 NLRB 1789, 1797 (2015); Hyundai America Shipping
Agency, 357 NLRB 860 (2011), rev. in part on other grounds, 805 F.3d 309 (D.C. Cir. 2015);
Bryant Health Center, Inc., 353 NLRB 739 (2009); SNE Enterprises, Inc., 347 NLRB 472
(2006); Westside Community Mental Health Center, 327 NLRB 661, 666 (1999). See also, 10
Verizon Wireless, 349 NLRB 640, 640 fn. 5 and 658 (2007) (Employer violated Sec. 8(a)(1) by
prohibiting employees from discussing discipline they had received.) When an employer
interferes with that right it may escape a finding of violation by demonstrating a legitimate and
substantial business justification that outweighs the employee's interests under Section 7. See,
e.g., Verizon Wireless, above at 658; Ang Newspapers, 343 NLRB 564, 565 (2004); Caesar's 15
Palace, 336 NLRB 271, 272 fn. 6 (2001); see also Beth Israel Hospital v. NLRB, 437 U.S. 483,
494-495 (1978) (The Board's task is to balance the employees' Section 7 right to communicate
against the employer's right to protect its business interests.)
In this case, I find that Respondent has not demonstrated that its interference with 20
employees’ right to discuss matters under investigation was outweighed by the demonstration of
a legitimate and substantial business justification. I note that the burden the Respondent placed
on employees’ rights to communicate about the investigation was particularly heavy since
Cuozzo did not limit the restriction by either time or place. Cuozzo did not state, for example,
that the restriction on employees discussing manager’s statements would only apply until the 25
investigation was completed. Rather, on its face, Cuozzo’s email imposes an open-ended
prohibition on employees discussing the matter at any time during or after the investigation.
SNE Enterprises, 347 NLRB 472, 472 fn. 4 and 492-493 (2006) (confidentiality rule that applies
after the investigation is completed cannot be justified “to protect the sanctity of an
ongoing investigation”), enfd. 257 Fed. Appx. 642 (4th Cir. 2007). Nor did Cuozzo limit the 30
prohibitions to discussions taking place in the Respondent’s workplace, but rather made a broad
pronouncement that, on its face, prohibits an employee from discussing the matter with
coworkers even on their own time in their own homes. Cuozzo did not even use language clearly
limiting the prohibition to discussions about the current investigation, but rather spoke in general
terms – prohibiting Rodriguez from “discussing conversations the management team may or may 35
not have had with other employees.”
At trial, Cuozzo testified that the restriction was necessary for two reasons. One of his
stated reasons was that employee conversations would “make things a bit more harder for us to
get a clear idea of what happened.” Cuozzo did not identify anything about this particular 40
investigation that made the tainting of witnesses a problem. See Banner Health System, 362
NLRB 1108, 1009 (2015) (Before prohibiting employees from discussing a matter under

promoted Rodriguez to assistant manager. In addition, the record evidence leaves no doubt that
Rodriguez’s September 18, 2017 interaction with a cook would not have resulted in any discipline at all.
Robertson admitted as much, testifying that no disciplinary action was taken as a result of that incident
and making no mention of it in her October 7 email recommending Rodriguez’s discharge.
JD–72–19
17
investigation, employer has the responsibility to “determine whether in any given investigation . .
. . corruption of its investigation would likely occur without confidentiality.”). To the contrary,
the evidence shows that Cuozzo and the Respondent did not conduct the type of investigation
where such taint would be a pressing concern. For example, the Respondent does not appear to
have sought the accounts of any witnesses to the October 2 interaction besides the three who 5
participated in it. Therefore, Cuozzo would have only limited legitimate concern about
Rodriguez tainting other witnesses to the event by encouraging them to harmonize their accounts
with her own. Even if the potential for witnesses to corrupt one another’s accounts during the
investigation was a legitimate concern here, it would not justify the Respondent’s imposition of a
restriction that was not limited to the time period or the subject matter of the investigation. SNE 10
Enterprises, above. The second reason that Cuozzo provided for imposing the prohibition was
that he did not want Rodriguez “to advocate for everybody.” This is not a legitimate reason, but
rather further evidence of unlawful discrimination. Rodriguez engaged in protected concerted
activity by bringing group concerns to the attention of management. The fact that interference
with that protected activity was not merely a side effect of the prohibition that Cuozzo imposed 15
on October 4, but one of its stated objectives, weighs further in favor of finding that the burden it
placed on employee’s communications about work-related matters was not outweighed by
legitimate business justifications.
I find that the Respondent violated Section 8(a)(1) of the Act when, on October 4, 2017, 20
Cuozzo informed Rodriguez by email that employees were prohibited from discussing work-
related incidents and managers’ statements to them with other employees.
C. TIMELINESS OF OCTOBER 4 EMAIL ALLEGATION
25
In its brief, the Respondent does not dispute that on April 2, 2018, Rodriguez filed a
timely charge regarding her October 8, 2017 discharge. However, the Respondent contends that
the allegation that Cuozzo’s October 4, 2017 email interfered with employees’ rights to discuss
matters under investigation was untimely because it was raised for the first time in the May 24,
2018, amendment to the original charge and more than 6 months after October 4, 2017. Under 30
Section 10(b) of the Act an allegation of an unfair labor practice is generally untimely if a charge
regarding it is not filed within 6 months of the conduct alleged to constitute an unfair labor
practice. However, the Supreme Court has held that a complaint may encompass any matter
sufficiently related to or growing out of conduct alleged in a timely charge. NLRB v. Fant
Milling Co., 360 U.S. 301, 309 (1959); National Licorice Co. v. NLRB, 309 U.S. 350, 369 35
(1940). Following this, the Board has recognized that an allegation raised outside the 6-month
period is still timely if it is “closely related” to allegations in a timely filed charge. Redd-I,
Inc., 290 NLRB 1115 (1988); see also UPS Supply Chain Solutions, Inc., 366 NLRB No. 111
(2018) and Fry's Food Stores, 361 NLRB 1216, 1217 (2014). In this case I find that the
allegation regarding Cuozzo’s October 4 email to Rodriguez is closely related both factually and 40
legally to the allegation regarding Rodriguez’s discharge that was set forth in the timely charge.
Cuozzo’s email was expressly about the process that led to Rodriguez’s discharge and was part
of the same course of events. In addition, the email evidences the same antagonism by
Respondent towards Rodriguez’s protected activity that unlawfully motivated the discharge
decision challenged in the timely charge. Both claims allege a violation of the same provision of 45
the Act – Section 8(a)(1). Both concern actions against the same employee – Rodriguez. For
JD–72–19
18
these reasons, I find that the claim based on Cuozzo’s October 4 email is closely related to the
allegation in the timely charge, and that the Respondent’s timeliness defense is not meritorious.
CONCLUSIONS OF LAW
5
1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Respondent discriminated in violation of Section 8(a)(1) of the Act on October 8,
2017, when it discharged Rodriguez based on her protected concerted activity. 10
3. The Respondent violated Section 8(a)(1) of the Act when, on October 4, 2017, Cuozzo
informed Rodriguez by email that employees were prohibited from discussing with other
employees work-related incidents and managers’ statements.
15
REMEDY
Having found that the Respondent engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act. The Respondent must, inter alia, offer Rodriguez full and immediate 20
reinstatement and make her whole for any loss of earnings and other benefits. Backpay 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 1173 (1987), compounded daily as
set forth in Kentucky River Medical Center, 356 NLRB 6 (2010). The Respondent shall
compensate Rodriguez for any adverse tax consequences of receiving a lump-sum backpay 25
award and to file a report with the Regional Director for Region One allocating the backpay
award to the appropriate calendar years. AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016).
In addition, the Respondent shall compensate Rodriquez for her search-for-work and 30
interim employment expenses, regardless of whether those expenses exceed interim earnings.
King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in rel. part 859 F.3d 23 (D.C. Cir. 2017).
Search-for-work and interim employment expenses shall be calculated separately from taxable
net backpay, with interest at the rate prescribed in New Horizons, above, compounded daily as
prescribed in Kentucky River Medical Center, above.35
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.20
ORDER40
The Respondent, Chip’s Wethersfield, LLC d/b/a Chip’s Family Restaurant, its officers,
agents, successors, and assigns, shall

20 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–72–19
19
1. Cease and desist from
(a) Discharging or otherwise discriminating against employees for engaging in protected
concerted activity. 5
(b) Prohibiting employees from discussing with other employees work-related incidents
and statements by managers.
(c) In any like or related manner interfering with, restraining, or coercing employees in 10
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) Within 14 days from the date of the Board’s Order, offer Jacqueline Rodriguez full 15
reinstatement to her former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
(b) Make Jacqueline Rodriguez whole for any loss of earnings and other benefits suffered
as a result of the discrimination against her in the manner set forth in the remedy section of the 20
decision.
(c) Compensate Jacqueline Rodrigues for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and file with the Regional Director for Region One within
21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report 25
allocating the backpay award to the appropriate calendar years.
(d) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify Jacqueline Rodriguez in
writing that this has been done and that the discharge will not be used against her in any way.30
(e) 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 35
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
JD–72–19
20
(f) Within 14 days after service by the Region, post at its facility in Wethersfield,
Connecticut, copies of the attached notice marked “Appendix.”21 Copies of the notice, on forms
provided by the Regional Director for Region One, after being signed by the 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 5
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 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 10
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 since
October 2, 2017.
15
Dated, Washington, D.C., September 25, 2019
____________________20
Elizabeth M. Tafe
Administrative Law Judge

21 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.”
ej1,5c2_
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 discharge or otherwise discriminate against you for engaging in
protected concerted activities.
WE WILL NOT prohibit you from discussing with other employees work-related
incidents and statements made by managers.
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, within 14 days from the date of the Board’s Order, offer Jacqueline
Rodriguez full reinstatement to her former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or any other rights or privileges previously
enjoyed.
WE WILL make Jacqueline Rodriguez whole for any loss of earnings and other benefits
suffered as a result of the discrimination against her in the manner set forth in the remedy section
of the decision.
WWE WILL compensate Jacqueline Rodriguez for the adverse tax consequences, if any,
of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for
Region One, within 21 days of the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge, and within 3 days thereafter notify Jacqueline Rodriguez in
writing that this has been done and that the discharge will not be used against her in any way.
CHIP’S WETHERSFIELD, LLC D/B/A
CHIP’S FAMILY RESTAURANT
(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.
10 Causeway Street, 6th Floor, Boston, MA 02222–1072
(617) 565-6700, Hours of Operation: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/01-CA-217597
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.
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, (617) 565-6701.