EYM King of Michigan, LLC d/b/a Burger King

National Labor Relations Board - Board Decisions

Aug 15, 2018

366 NLRB No. 156 (N.L.R.B. 2018)

366 NLRB No. 156
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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.
EYM King of Michigan, LLC d/b/a Burger King and
Michigan Workers Organizing Committee.
Case 07–CA–118835
August 15, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
On September 29, 2014, Administrative Law Judge
Arthur J. Amchan issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, a reply
brief, and an answering brief.1 The General Counsel
filed cross-exceptions, a supporting brief, a reply brief,
and an answering brief. The Charging Party filed an
answering brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,2
and conclusions in part and to adopt the judge’s recom-
mended Order as modified and set forth in full below.3

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondent and the General Counsel have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces us
that they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings.
There are no exceptions to the judge’s dismissal of the allegations
that the Respondent’s general manager, Charlene Pack: (1) threatened
to reduce employees’ work hours because of their protected activities;
(2) engaged in surveillance of employees’ union activities; and (3) and
threatened to remove employees from an employee meeting for engag-
ing in protected activity. In addition, there are no exceptions to the
judge’s dismissal of the allegations that: (1) two assistant managers
coercively interrogated employees about their union sympathies and
protected activities; and (2) the Respondent unlawfully maintained a
work rule in its misconduct policy requiring employees to “treat co-
workers, customers, suppliers, and visitors with courtesy and respect.”
3 We have amended the judge’s conclusions of law and remedy and
modified his recommended Order consistent with our findings herein.
We shall substitute new notices to conform to the Order as modified.
Complaint paragraphs 16(b)–(c) and 17(b)–(c) allege that the Re-
spondent violated Sec. 8(a)(1) by unlawfully maintaining overly broad
employee handbook rules. We shall sever these complaint allegations
and retain them for further consideration, except the allegations in
paragraphs 16(b) and 17(b) regarding the requirement that employees
treat coworkers and others “with courtesy and respect,” as no excep-
tions were filed to the judge’s dismissal of those allegations.
Facts
On June 12, 2013,4 the Respondent acquired owner-
ship of a Burger King in Ferndale, Michigan.5 The Re-
spondent immediately distributed its Employment Poli-
cies and Procedures Handbook, which included its Loi-
tering and Soliciting policy. Employees who violated
this policy were subject to discipline. Around the same
time, Claudette Wilson and Romell Frazier, two employ-
ees at the Ferndale Burger King who were active mem-
bers of the Michigan Workers Organizing Committee,
participated in protest strikes advocating for a $15-an-
hour minimum wage for fast food workers.6
Meanwhile, the Respondent’s general manager, Char-
lene Pack, had seen Wilson carrying around a clipboard
with a wage questionnaire and talking to off-duty em-
ployees about it. On September 19, while off duty, Wil-
son and her coworker Jalissa Johnson discussed their
wages as they sat in Wilson’s parked car in the Respond-
ent’s parking lot. Wilson had Johnson fill out the wage
questionnaire. Upon seeing Wilson and Johnson talking
and exchanging the questionnaire, Pack approached the
car and told Wilson that she was violating the Respond-
ent’s Loitering and Soliciting policy and had to leave.7
Wilson refused. Pack reported the incident to the Re-
spondent’s district manager, Troy Kennedy, who told
Pack to write up Wilson for violating the policy.
On September 20, Pack handed Wilson a written ver-
bal warning for “loitering and soliciting in and around
the [Ferndale] Burger King building.” That afternoon, an
assistant store manager reported to Pack that Wilson had
failed to follow the proper protocol for placing pickles on
sandwiches. Pack sent Wilson home 2 to 2½ hours be-
fore her scheduled shift ended. On September 21, the
Respondent conducted a mandatory employee meeting in
the Ferndale Burger King’s dining area, during which
Pack read verbatim the Loitering and Soliciting policy
and other portions of the handbook.

4 All dates hereinafter are in 2013 unless otherwise indicated.
5 The Respondent owns 21 other Burger King restaurants in or
around Detroit.
6 In its cross-exceptions, the General Counsel notes that the judge
incorrectly stated that Wilson worked part time for the Michigan Work-
ers Organizing Committee in June 2013 when she was hired by the
Respondent. The record shows that Wilson first started working for the
Michigan Workers Organizing Committee in August 2013. This inad-
vertent error does not affect our disposition of the case.
7 That policy states, in relevant part: “Loitering and soliciting either
inside or outside on Company premises is strictly prohibited. . . . Em-
ployees are not authorized to remain in the restaurant after work. . . . If
you are off-duty and return to the store to speak with employees who
are working, your conduct may be considered loitering. . . . Employees
who violate this policy may be subject to discipline, up to and including
termination.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
In October, while on duty, employee Frazier spoke
with two coworkers about how to encourage employees
at other fast food restaurants to participate in the protest
strikes. Pack approached Frazier and stated, “You talk-
ing about striking again. You’re going to be picking up
your last paycheck.”
Analysis
1. For the reasons stated by the judge, we affirm his
finding that the Respondent’s Loitering and Soliciting
policy violated Section 8(a)(1). In its exceptions, the
Respondent argues that its parking lot is a “selling area”
and that it can lawfully ban solicitation there under Beth
Israel Hosp. v. NLRB, 437 U.S. 483, 493 (1978). In sup-
port, the Respondent claims that customers must drive
through the parking lot to reach the drive-through win-
dow and park their cars in the parking lot to order take-
out food from inside the restaurant. We find that the
Respondent’s exception is without merit. The fact that
customers either drive through or park their cars in the
parking lot does not make the parking lot a “selling ar-
ea.”
At retail establishments, the Board allows employers
to institute a ban on employee solicitation on the selling
floor, and its adjacent aisles and corridors, because active
solicitation in a sales area may disrupt business. See
Marshall Field & Co., 98 NLRB 88, 92 (1952), modified
on other grounds, 200 F.2d 375 (7th Cir. 1952). That
ban on employee solicitation, however, may not “be ex-
tended beyond that portion of the store which is used for
selling purposes.” McBride’s of Naylor Road, 229
NLRB 795, 795 (1977). Applying those principles, the
Board has found that a parking lot is not a selling area.
See Sam’s Club, 349 NLRB 1007, 1009 (2007) (“[A]s it
concerned the parking lot and smoking areas, the prohi-
bition [on discussing the union]—which would encom-
pass solicitation as well—was not limited either to work-
ing time or to selling areas and therefore was overly
broad both as to location and to time, even if it had been
limited to solicitation alone.”). We see no reason not to
apply that ruling to the parking lot of a fast food restau-
rant.
Because its parking lot is not a selling area, the Re-
spondent violated the Act by maintaining a policy pro-
hibiting employees from engaging in any union solicita-
tion on its property during nonworking hours. Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 803 fn. 10 (1945)
(it is “‘not within the province of an employer to prom-
ulgate and enforce a rule prohibiting union solicitation by
an employee outside of working hours, although on
company property’”), quoting Peyton Packing, 49 NLRB
843, 843 (1943)).8 See also Meijer, Inc. v. NLRB, 463
F.3d 534, 544 (6th Cir. 2006) (finding that employer
unlawfully banned off-duty employees’ union solicita-
tion in parking lots and rejecting employer’s “contention
that all its property is a work area [a]s a contention that
can be asserted by every company, thus effectively de-
stroying the right of employees to distribute literature”)
(citation omitted). In addition, because the Respondent’s
Loitering and Soliciting policy is unlawful, we affirm the
judge’s findings that, on September 19, General Manager
Pack violated Section 8(a)(1) by telling Wilson, who was
off duty, not to solicit other off-duty employees in the
parking lot and, on September 20, violated Section
8(a)(3) and (1) by issuing Wilson a written verbal warn-
ing and suspending her.9 We also affirm the judge’s
finding that, on September 21, Pack violated Section
8(a)(1) by reading aloud its unlawful Loitering and Solic-
iting policy at a mandatory employee meeting.10

8 We find it unnecessary to pass on the judge’s assertion that there
may be “special circumstances” other than the need to maintain produc-
tion or discipline that might justify the Respondent’s policy. Neverthe-
less, we agree with the judge that even if safety concerns were such a
“special circumstance,” the Respondent failed to show that its Loitering
and Soliciting policy enhanced the safety of its customers or its em-
ployees. Moreover, the Respondent failed to show that it had a busi-
ness reason for prohibiting access by off-duty employees to the outside,
nonworking areas of its property, including its parking lot. See Tri-
County Medical Center, 222 NLRB 1089, 1089 (1976).
Because the General Counsel did not allege that the Respondent un-
lawfully prohibited employees from distributing union literature inside
the Ferndale Burger King, we find it unnecessary to decide in what
areas of the restaurant the Respondent can prohibit employee distribu-
tion of union literature.
Member Emanuel agrees that, under Tri-County Medical Center, su-
pra, the Respondent’s Loitering and Soliciting policy unlawfully denied
Wilson, an off-duty employee, access to its parking lot to engage in
Sec. 7 activities. However, he believes that the Board should revisit
Tri-County Medical Center to the extent that it allows off-duty employ-
ees to engage in Sec. 7 activities on an employer’s parking lot and other
exterior areas of the employer’s property.
9 In adopting the judge’s finding that the Respondent unlawfully
suspended Wilson, we agree with the judge that the General Counsel
sustained his initial burden under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
As set forth in Mesker Door, 357 NLRB 591, 592 (2011), the required
elements are union activity by the employee, employer knowledge of
that activity, and union animus by the employer. The judge correctly
notes that the Respondent demonstrated animus by unlawfully issuing
the written verbal warning to Wilson earlier that same day. Moreover,
the Respondent failed to rebut the inference that it suspended Wilson
for her protected activity. First, although the Respondent argues that it
never suspended Wilson, the credited evidence is that Wilson was sent
home early on September 20. Second, the Respondent contends that
Wilson admitted that she “did not put pickles on her sandwiches in
perfect squares as she was supposed to,” but the Respondent offered no
evidence that it had ever suspended any employee, or informed them
that they could be suspended, for that reason.
10 The General Counsel cross-excepted to the judge’s dismissal of
the allegation that Pack unlawfully told employees at the September 21
EYM KING OF MICHIGAN, LLC D/B/A BURGER KING 3
2. We affirm the judge’s finding that Pack’s October
statement that Frazier would be picking up his last
paycheck if he was talking about striking again was a
threat of discharge that violated Section 8(a)(1). The
Respondent excepts to the judge’s finding by arguing
that Pack lawfully told Frazier not to solicit other em-
ployees to engage in future protest strikes in customer
and selling areas of the restaurant. But Pack’s statement
included no such limitation. Furthermore, by threatening
Frazier with discharge, the Respondent unlawfully failed
to treat Frazier’s discussion with his coworkers in the
same manner it treated employee discussions about other
subjects, which the Respondent permitted. See Sam’s
Club, above at 1009 (“[B]y telling employees that they
could not talk about the [u]nion on the sales floor, while
allowing them to talk about other nonwork matters, the
[r]espondent violated Section 8(a)(1).”).
AMENDED CONCLUSIONS OF LAW
The Respondent, EYM King of Michigan, LLC d/b/a
Burger King, has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 2(6) and (7)
of the Act as follows:
1. By maintaining its Loitering and Soliciting policy,
the Respondent violated Section 8(a)(1).
2. By General Manager Charlene Pack telling em-
ployee Claudette Wilson, in accordance with the Loiter-
ing and Soliciting policy, not to solicit other off-duty
employees in its parking lot, the Respondent violated
Section 8(a)(1).
3. By General Manager Charlene Pack issuing em-
ployee Claudette Wilson a written verbal warning for
violating the Loitering and Soliciting policy, the Re-
spondent violated Section 8(a)(3) and (1).
4. By General Manager Charlene Pack suspending
employee Claudette Wilson for violating the Loitering
and Soliciting policy, the Respondent violated Section
8(a)(3) and (1).
5. By General Manager Charlene Pack reading the
Loitering and Soliciting policy to employees at a manda-
tory employee meeting, the Respondent violated Section
8(a)(1).
6. By General Manager Charlene Pack threatening
employee Romell Frazier with discharge for discussing
protest strikes, the Respondent violated Section 8(a)(1).

meeting not to discuss company business with anyone outside the com-
pany. In affirming the dismissal, we agree with the judge that the rec-
ord is unclear as to what Pack did at the meeting besides recite its Loi-
tering and Soliciting policy and other portions of its employee hand-
book.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(3) and
(1) by issuing Claudette Wilson a written verbal warning
and then suspending her on September 20, 2013, we shall
order the Respondent to make Claudette Wilson whole
for any loss of earnings and other benefits suffered as a
result of the Respondent’s unlawful suspension. The
backpay due shall be computed as prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010).
We shall also order the Respondent to compensate
Claudette Wilson for the adverse tax consequences, if
any, of receiving a lump-sum backpay award and to file
with the Regional Director for Region 7, within 21 days
of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay award to the appropriate calendar year. AdvoServ of
New Jersey, Inc., 363 NLRB No. 143 (2016). The Re-
spondent additionally shall be ordered to remove from its
files any references to the unlawful written verbal warn-
ing and suspension of Claudette Wilson and to notify her
in writing that this has been done and that the unlawful
actions will not be used against her in any way.
Having found that the Respondent maintained an un-
lawful Loitering and Soliciting policy, we shall order the
Respondent to rescind its unlawful policy in accordance
with our decision in Guardsmark, LLC, 344 NLRB 809,
812 (2005), enfd. in relevant part 475 F.3d 369 (D.C. Cir.
2007).11 We shall also issue two notices, one for the
Ferndale Burger King, where all the unfair labor practic-
es took place, and a second notice for the Respondent’s
21 other restaurants where it maintained the unlawful
policy.

11 On March 12, 2014, during the General Counsel’s investigation of
the unfair labor practice charges in this case, the Respondent revised its
Loitering and Soliciting policy. The Respondent maintained its original
handbook but prepared an insert disseminated to employees that con-
tained the revised policy. We agree with the judge that this is insuffi-
cient to repudiate its unlawful conduct of maintaining its original poli-
cy. Passavant Memorial Area Hospital, 237 NLRB 138 (1978). It is
also unclear from the record that the Respondent ever rescinded its
original policy. Hence, we shall require it to do so. Moreover, the
revised Loitering and Soliciting policy retains the same unlawful lan-
guage prohibiting employees from soliciting outside of the restaurant
on the Respondent’s premises, such as in its parking lot.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ORDER
The Respondent, EYM King of Michigan, LLC d/b/a
Burger King, Ferndale, Michigan, its officers, agents,
successors, and assigns shall
1. Cease and desist from
(a) Maintaining its Loitering and Soliciting policy.
(b) Telling employees not to violate its Loitering and
Soliciting policy.
(c) Disciplining, including suspending, employees for
violating its Loitering and Soliciting policy.
(d) Reading its Loitering and Soliciting policy to em-
ployees.
(e) Threatening to discharge employees for discussing
protected activities.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in 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) Rescind its Loitering and Soliciting policy.
(b) Make Claudette Wilson whole for any loss of
earnings and other benefits suffered as a result of her
suspension on September 20, 2013, in the manner set
forth in the amended remedy section of this decision.
(c) Compensate Claudette Wilson for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 7,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year.
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful written
verbal warning issued to and suspension of Claudette
Wilson and, within 3 days thereafter, notify Claudette
Wilson in writing that this has been done and that the
written verbal warning and the suspension will not be
used against her in any way.
(e) Furnish all current employees with inserts for the
current Employment Policies and Procedures Handbook
that (1) advise that the unlawful Loitering and Soliciting
policy has been rescinded, or (2) provide the language of
a lawful policy; or publish and distribute a revised Em-
ployment Policies and Procedures Handbook that (1)
does not contain the unlawful Loitering and Soliciting
policy, or (2) provides the language of a lawful policy.
(f) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post
copies of the attached notice marked “Appendix A” at its
Ferndale Burger King restaurant, and copies of the at-
tached notice marked “Appendix B” at its other Detroit,
Michigan area restaurants.12 Copies of the notices, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 Respondent custom-
arily 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 cov-
ered by any other material. If the Respondent has gone
out of business or closed any of the restaurants involved
in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 12, 2013.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that complaint paragraphs
16(b)–(c) and 17(b)–(c), except as limited in footnote 3,
above, which allege that the Respondent has unlawfully
maintained overly broad employee handbook rules, are
severed and retained for further consideration.
Dated, Washington, D.C. August 15, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
EYM KING OF MICHIGAN, LLC D/B/A BURGER KING 5
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain our Loitering and Soliciting
policy.
WE WILL NOT tell you not to violate our Loitering and
Soliciting policy.
WE WILL NOT discipline, including suspend, you for
violating our Loitering and Soliciting policy.
WE WILL NOT read our Loitering and Soliciting policy
to you.
WE WILL NOT threaten to discharge you for discussing
protected activities.
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 our Loitering and Soliciting policy.
WE WILL make Claudette Wilson whole for any loss of
earnings and other benefits suffered as a result of her
suspension on September 20, 2013, less any net interim
earnings, plus interest compounded daily.
WE WILL compensate Claudette Wilson for
the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and WE WILL file with the Re-
gional Director for Region 7, 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 year.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful writ-
ten verbal warning issued to and suspension of Claudette
Wilson and, within 3 days thereafter, WE WILL notify
Claudette Wilson in writing that this has been done and
that the written verbal warning and the suspension will
not be used against her in any way.
WE WILL furnish all current employees with inserts for
the current Employment Policies and Procedures Hand-
book that (1) advise that the unlawful Loitering and So-
liciting policy has been rescinded, or (2) provide the lan-
guage of a lawful policy; or publish and distribute a re-
vised Employment Policies and Procedures Handbook
that (1) does not contain the unlawful Loitering and So-
liciting policy, or (2) provides the language of a lawful
policy.
EYM KING OF MICHIGAN, LLC D/B/A BURGER
KING
The Board’s decision can be found at
www.nlrb.gov/case/07-CA-118835 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.
APPENDIX B
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain our Loitering and Soliciting
policy.
•
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
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 our Loitering and Soliciting policy.
WE WILL furnish all current employees with inserts for
the current Employment Policies and Procedures Hand-
book that (1) advise that the unlawful Loitering and So-
liciting policy has been rescinded, or (2) provide the lan-
guage of a lawful policy; or publish and distribute a re-
vised Employment Policies and Procedures Handbook
that (1) does not contain the unlawful Loitering and So-
liciting policy, or (2) provides the language of a lawful
policy.
EYM KING OF MICHIGAN, LLC D/B/A BURGER
KING
The Board’s decision can be found at
www.nlrb.gov/case/07-CA-118835 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.
Robert A. Dryzga, Esq., for the General Counsel.
John L. Ross, Jason T. Weber, Esqs. (Thompson, Coe, Cousins
& Irons, LLP), of Dallas, Texas, for the Respondent.
Patrick J. Rorai, Esq. (McKnight, McClow, Canzano, Smith &
Radtke, P.C.), of Detroit, Michigan, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Detroit, Michigan, on July 28 and 29, 2014. The
Michigan Workers Organizing Committee filed the initial
charge on in this matter of December 11, 2013. The General
Counsel issued the complaint on May 27, 2014.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Charging Party, and Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent EYM King of Michigan operates 22 Burger
King restaurants in the Detroit, Michigan area. During 2013
Respondent derived gross revenues in excess of $500,000. It
purchased and received at its Michigan facilities goods valued
in excess of $5000 directly from points outside of Michigan.
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.
The General Counsel alleges that Respondent, by Charlene
Pack, its manager at its Ferndale restaurant (10336 West 8 Mile
Road in metropolitan Detroit) violated Section 8(a)(1) of the
Act by: threatening employees in retaliation for their protected
activities; prohibiting employees from discussing the terms and
conditions of their employment; engaging in surveillance;
threatening discharge and threatening to cut employees’ hours.
The General Counsel also alleges that Pack violated Section
8(a)(3) and (1) by disciplining an employee for engaging in
union activity and threatening to remove her from a meeting.
He also alleges that Ferndale Managers Tajai Howard and
Shavonna Jones violated Section 8(a)(1) by coercively interro-
gating employees.
The General Counsel also alleges that Respondent violated
Section 8(a)(1) by maintaining illegal rules regarding loitering
and soliciting, professional conduct/misconduct and confidenti-
ality.
II. ALLEGED UNFAIR LABOR PRACTICES
Alleged ULPs other than maintaining and enforcing
illegal rules
Respondent EYM became owner of the Burger King in
Ferndale (10336 West 8 Mile Road) on June 12, 2013.1 The
Ferndale store, as well as many of the other 21 Burger Kings
owned by Respondent, is located in a very high crime area of
metropolitan Detroit.
The Ferndale Burger King had been operated by another
franchisee, V & J, for at least several years prior to June 2013.
EYM retained all the employees who worked for V & J, includ-
ing store manager Charlene Pack, assistant store managers
Shavonna Jones, and Tajai Howard and part-time employees
Claudette Wilson and Romell Frazier.
Wilson and Frazier also worked part-time for the Union.2
Pack was aware of this when she hired Wilson and Frazier for
EYM. She also knew that Wilson and Frazier had engaged in a
strike against V & J and other fast food restaurants in May
2013. This strike was part of an effort by the Union, called
D15, to raise the minimum wage for fast food workers in De-
troit to $15 dollars an hour.
Wilson and Frazier also engaged in strike activity on July 31
and August 29, however, there was no picketing at the Ferndale
Burger King on those occasions. Shortly after the July strike,
Wilson had a conversation about the strikes with two of Re-
spondent’s managers.
Alleged Interrogations (complaint paragraph 12)
A few days after the July strike, Shavonna Jones, an assistant
manager at the Ferndale store, asked Wilson how the strike
went. Another assistant manager, Tajai Howard, asked Wilson

1 It is not clear whether EYM became owner of all 22 Burger Kings
that it operates in Detroit on the same date.
2 Wilson testified that she worked 20–30 hours a week for Respond-
ent and 24 hours a week for the Union.
EYM KING OF MICHIGAN, LLC D/B/A BURGER KING 7
when the next strike was to take place. Wilson did not respond.
Both Jones and Howard signed union WIT (whatever it takes)
cards, although it is not clear from this record when Howard
did so. Jones signed the card prior to May 10, 2013.
The lead Board case regarding the legality of interrogations
is Rossmore House, 269 NLRB 1176 (1984), affd. 760 F.2d
1006 (9th Cir. 1985). Pursuant to the Rossmore test,
Under Board law, it is [well established] that interrogations of
employees are not per se unlawful, but must be evaluated un-
der the standard of “whether under all the circumstances the
interrogation reasonably tended to restrain, coerce, or interfere
with rights guaranteed by the Act.”
In making that determination, the Board considers such fac-
tors as the background, the nature of the information sought,
the identity of the questioner, the place and method of interro-
gation, and whether or not the employee being questioned is an
open and active union supporter, Norton Audubon Hospital,
338 NLRB 320, 320–321 (2002). Given Wilson’s open and
notorious union activities I find that neither the inquiry by
Jones nor the inquiry by Howard violated the Act.
Allegations based on the testimony of Romell Frazier3
Romell Frazier began working for V & J at the Ferndale
Burger King in February 2012. A year later he also became a
part-time paid organizer for the Union. Frazier and Claudette
Wilson participated in a strike against V & J and other fast food
restaurants on May 10, 2013.
Frazier regularly talked about the Union and strikes at work.
He testified that on one occasion in October 2013, Charlene
Pack told him that him that if he was talking about striking
again, he’d soon be picking up his paycheck.4 Pack testified
that very generally that she did not threaten to fire anybody for
union activity. Due to her failure to specifically contradict
Frazier’s testimony, I credit Frazier. Respondent asserts at
page 46 of its brief that it was “plainly entitled” to prohibit
employees from discussing wages, unions or other protected
activity during work time and to discipline them for such con-
duct. This assertion is simply incorrect.
It is settled law that an employer may forbid employees from
talking about a union during periods when the employees are
supposed to be actively working, if that prohibition also ex-
tends to other subjects not associated or connected with their
work tasks. However, an employer violates the Act when em-
ployees are forbidden to discuss unionization, but are free to
discuss other subjects unrelated to work, as is the case at Re-
spondent’s facilities, Jensen Enterprises, Inc., 339 NLRB 877,
878 (2003); Sam’s Club, 349 NLRB 1007, 1009–1010 (2007).

3 Tajuan McGhee testified to an occasion at which Pack threatened
to reduce the hours Wilson and Frazier. At hearing McGhee read from
his affidavit and had no independent recollection of this incident, par-
ticularly when it occurred. Neither Frazier nor Wilson testified about
such an incident; thus I do not credit McGhee’s testimony. Witness
Eddie George also testified to hearing Pack make similar threats. One
of these occurred while V & J owned the Ferndale restaurant; the other
allegedly sometime in September 2013. Since George’s testimony is
not corroborated by either Frazier or Wilson, I do not credit it.
4 This testimony relates to complaint paragraphs 11(d) and (e)..
Respondent did not prohibit discussion of other non-work relat-
ed subjects during working time, thus it violated Section 8(a)(1)
in threatening Frazier, as alleged in paragraph 11(d),
With regard to complaint paragraph 11(e), I find Charlene
Pack’s testimony, that she did not threaten to reduce Romell
Frazier’s hours of work, as credible as his testimony that she
did so. For one thing, there is no evidence that his hours were
in fact reduced. Therefore, I dismiss complaint paragraph
11(e).
September 19–21 events involving Claudette Wilson (complaint
paragraphs 11(b) and (c); and 13)
On the afternoon of September 19, 2013, Claudette Wilson,
who was not on duty for Respondent, parked in the parking lot
of the Ferndale Burger King. Employee Jalissa Johnson, who
had just clocked out from work joined Wilson in her car. Wil-
son had Johnson fill out a union questionnaire regarding wages.
Shortly thereafter, Store Manager Charlene Pack came out of
the store and approached Wilson. Pack told Wilson that she
was violating Respondent’s loitering and solicitation policy and
that she would have to leave. Wilson refused to do so.
Pack reported this to District Manager Troy Kennedy, who
directed her to write Wilson up. On September 20, Pack gave
Wilson a written verbal warning (GC Exh. 5), for failing to
follow her instructions to cease loitering and soliciting. Pack
did not discipline Johnson.
Later that day, an assistant store manager noticed that Wil-
son was not placing pickles on sandwiches in a perfect square
as she was supposed to. The assistant manager reported this to
Pack who sent Wilson home at about 3:40, 2–2 ½ hours early.5
The team meeting on September 21
At about 9 a.m. on September 21, Pack conducted a manda-
tory meeting for employees in the dining room of the restau-
rant. Customers were present in the dining room during this
meeting. She read portions of the handbook verbatim, including
those portions pertaining to soliciting and loitering at page 13
of (GC Exh. 2), as well as discussing other topics. Then the
meeting broke into separate sessions; the cashiers met with
Pack in one customer booth. The cooks met with Assistant
Manager Edward Eberhart in another booth. Before the groups
split up, Pack said she would entertain questions after the
breakout sessions.
At some point in the breakout meetings Pack overheard Wil-
son complaining loudly about being underpaid and underappre-
ciated. Pack left the cashiers meeting and walked over to the
cooks meeting. She told Wilson that she would have calm
down and sit or she would have to leave. Wilson apparently sat
down, calmed down and remained at the meeting for its dura-
tion. At the end of the breakout meetings, Pack entertained
questions. When Wilson sought to ask a question, Pack told

5 There was much discussion at hearing as to why Respondent did
not have a printed work schedule for the week of September 19–25. I
find this is of no consequence as Respondent admits that Wilson did not
work the hours for which she was scheduled on September 20. Wilson
testified that Pack sent her home early, Tr. 88; Pack could not recall if
she sent Wilson home or whether Wilson requested to leave early, Tr.
529. I credit Wilson.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Wilson she already had her turn.
The Rules at Issue in pertinent part
Rules in Handbook, GC Exh. 2, distributed September 2013
Loitering and Soliciting
Loitering and soliciting either inside or outside on Company
premises is strictly prohibited. You should arrive some
minutes before your entry hour and leave the as soon as you
finish your shift. Employees are not authorized to remain in
the restaurant after work. If you are not working or eating in a
store, your conduct may be construed as loitering. If you are
off-duty and return to the store to speak with employees who
are working, your conduct may be considered loitering. For-
mer employees who return to the store to speak with employ-
ees who are working are loitering. This policy is designed to
prevent the disruption of company business due to unneces-
sary interaction with non-working employees or non-
employees. Employees who violate this policy may be subject
to discipline, up to and including termination.
Confidential Information
EYM King of Michigan, LLC. entrusts its Employees with
important information related to its businesses. The nature of
this relationship requires maintenance of confidentiality. Your
employment with EYM King of Michigan, LLC. obligates
you to maintain confidentiality of information, even after you
are no longer employed with EYM King of Michigan, LLC.
For instance, you might know about company earnings, food
preparation procedures and plans to buy or sell other products
or property, or changes in management. These are examples
of sensitive business matters considered confidential and pro-
prietary trade secrets. If revealed the result could be the loss of
a business advantage. This includes, but is not limited to, the
discussion of any information relating to threatened Legal
claims or lawsuits against the Company. If you are contacted
by an attorney or an investigator about company business,
your response should always be to refer such persons to EYM
King of Michigan, LLC.s corporate office at (214) 819-3800 -
Human Resources Department, even if the person states that
he/she represents the Company, unless your Supervisor has
given you permission to speak with the individual. Any viola-
tion of confidentiality seriously injures EYM King of Michi-
gan, LLC.'s reputation and effectiveness. Do not discuss
EYM King of Michigan, LLC. business with anyone who
does not work for the Company. Never discuss business
transactions with anyone who does not have a direct associa-
tion with the transaction. Even casual remarks can be misin-
terpreted and repeated, so develop the personal discipline nec-
essary to maintain confidentiality. If you are questioned by
someone outside the company or your department and you are
concerned about the appropriateness of giving that person cer-
tain information, remember that you are not required to an-
swer, and that we do not wish you to do so. Instead, as polite-
ly as possible, refer the request to your Supervisor. No one is
permitted to remove or make copies of any EYM King of
Michigan, LLC. records, reports, or documents without prior
management approval. Because of its seriousness, disclosure
of confidential information could lead to your termination.
PROFESSIONAL CONDUCT
Misconduct
EYM King of Michigan, LLC. is committed to providing a
work environment that encourages mutual respect and profes-
sionalism among employees. Every employee has the right to
work without disorderly or undue interference from others.
You are expected to be responsible and reasonable, and con-
duct yourself in a professional, business-like manner, which
includes being honest, ethical and safe. We expect your be-
havior to be professional ¡n the workplace and whenever you
are representing the company. Listed below are some exam-
ples of what we expect when we say "professional behavior.'
The following is a partial list of acts that are considered mis-
conduct and may result in disciplinary action up to and in-
cluding termination:
Violations of all existing policies and regulations, as well as
local, state and federal laws
Failure to perform your job duties to the best of your ability
and to the standards as set forth in the job description or as
otherwise established Insubordination and/or refusal to do as-
signed work
Failure to treat co-workers. customers, suppliers and visitors
with courtesy and respect
Failure to behave in an honest and ethical manner at all times
Falsification, alteration, misrepresentation, or removal of
company documents and/or records, or documents required
by law
Providing false information to the Company regarding job
applications, injuries, accidents or incidents in the workplace
Failure to comply with the Image Standards established for
your work site, or failing to meet requirements for uniform or
personal hygiene
Being under the influence of alcohol or drugs in violation of
Company policy
Negligence, indifference or willful misconduct resulting in
loss, damage or destruction of
Company property
Working in an unsafe or dangerous manner
Excessive absenteeism or tardiness without approval
Altering time records, allowing another employee to alter
your time record
Failure to follow the Cash Register Policy
Knowingly failing to discard expired food product, or altering
the holding time on food
product, or other action adversely affecting food quality or
safety
Engaging in gambling, disorderly or immoral conduct while
on company premises or business
Failing to work cooperatively with others to resolve conflicts
in a professional manner
Verbal or physical altercations, intimidating behavior, threats
of violence or any sort of unprofessional conduct toward any
employee, customer, or others who you encounter in
connection with your employment
Using foul or abusive language or profanity of any sort
Unauthorized use of Company equipment, supplies, funds, or
time
EYM KING OF MICHIGAN, LLC D/B/A BURGER KING 9
Sending, receiving or posting information that could be con-
sidered defamatory or disparaging to the Company
Making false, fraudulent or malicious statements about the
Company, team members, customers. suppliers or visitors
Providing information or trade secrets regarding the Company
or Burger King to any media representative, reporter or inves-
tigator with Company approval
Any off-duty offense which would reflect negatively on the
Company
Theft of Company food, property or funds
No set of policies can apply or relate to all types and forms of
conduct; therefore, the policies specified in this handbook are
meant to guide you to the proper way to conduct yourself n
your role as a company employee. If your conduct is contrary
to the Company's best interests and is not specifically prohib-
ited or addressed in this handbook or other policy statement,
the company still reserves the right to take appropriate disci-
plinary action in its sole and absolute discretion.
Rules as Revised March 12, 2014
Loitering and Soliciting
Loitering and soliciting either inside or outside on Company
premises is strictly prohibited. You should arrive some
minutes before your entry hour and, unless dining, leave the
restaurant as soon as you finish your shift. Except as custom-
ers, employees are not authorized to remain in the restaurant
after work. If you are not working or eating in a restaurant,
your conduct may be construed as loitering. This policy is de-
signed to prevent interference with working employees' abil-
ity to perform their jobs, facilitate customer ingress, egress,
and facility access, prevent the disruption of Company busi-
ness, and ensure employee, customer, and public safety while
on Company premises, both inside the facility and in the park-
ing and drive-through areas of the restaurant.
PROFESSIONAL CONDUCT
Misconduct
EYM King of Michigan, LLC is committed to providing a
work environment that encourages mutual respect and profes-
sionalism among employees. You are expected to be respon-
sible and reasonable, and conduct yourself in a professional,
business-like manner, which includes being honest, ethical
and safe. We expect your behavior to be professional in the
workplace and whenever you are representing the Company.
Listed below are some examples of what we expect when we
say "professional behavior." The following is a partial list on-
ly. The Company reserves its management prerogative as an
employer-at-will to discipline or discharge employees in its
sole discretion, irrespective of the following list.
Violations of local, state and federal laws
Failure to perform your job duties to the best of your ability
and to the standards as set forth in the job description or as
otherwise established
Insubordination and/or refusal to do assigned work
Failure to treat co-workers, customers, suppliers and visitors
with courtesy and respect
Failure to behave in an honest and ethical manner at all times
Falsification, alteration, misrepresentation, or removal of
Company documents and/or records, or documents required
by law
Providing false information to the Company regarding job
applications, injuries, accidents or incidents in the workplace
Failure to comply with the Image Standards established for
your work site, or failing to meet requirements for uniform or
personal hygiene
Being under the influence of alcohol or drugs in violation of
Company policy
Negligence, indifference or willful misconduct resulting in
loss, damage or destruction of Company property
Working in an unsafe or dangerous manner
Excessive absenteeism or tardiness without approval
Altering time records, allowing another employee to alter
your time record
Failure to follow the Cash Register Policy
Knowingly failing to discard expired food product, or altering
the holding time on food product, or other action adversely af-
fecting food quality or safety
Engaging in gambling, disorderly or immoral conduct while
on Company premises or business
Verbal or physical altercations, intimidating behavior, threats
of violence or any sort of unprofessional conduct toward any
employee, customer, or others who you encounter in
connection with your employment
Using foul or abusive language or profanity of any sort
Unauthorized use of Company equipment, supplies, funds, or
time
Violating fiduciary duties owed to the Company or Burger
King, misappropriating or disclosing proprietary infor-
mation/trade secrets in violation of applicable law, or engag-
ing in unfair competition under applicable law.
Theft of Company food, property or funds
No set of policies can apply or relate to all types and forms of
conduct; therefore, the policies specified in this handbook are
meant to guide you in the proper way to conduct yourself in
your role as a Company employee. The Company still re-
serves the right to take disciplinary action when, in its sole
and absolute discretion, deemed appropriate.
Disciplinary action may be in the form of a verbal reprimand,
a warning notice, suspension, or termination. lt may be pro-
gressive or immediate, as determined solely and exclusively
by the management of the Company.
The Company is not obligated to follow any progressive dis-
cipline procedures. Depending on the nature and the severity
of an employee's offense or violation of Company policy or
rule, the Company, at its sole and absolute discretion, may
take whatever action it may deem appropriate under the cir-
cumstances, including immediate termination. Disciplinary
procedures are not binding on the Company and do not
change your status as an "at will" employee.
Confidential Information
EYM King of Michigan, LLC entrusts its Employees with
important information confidential, proprietary and trade se-
crets related to its businesses and the business of Burger King.
Applicable state and federal laws impose various fiduciary
obligations upon you as an employee (even after you are no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
longer employed with EYM King of Michigan, LLC) regard-
ing maintaining the confidentiality of such information,
against misusing or misappropriating of such information, en-
gaging in unlawful or unfair competition, using such infor-
mation to engage in securities transactions, and protecting the
Company's trade secrets, trade dress, trademarks, and copy-
rights. You are expected at all times to abide by your fiduciary
obligations and other requirements of local, state, and federal
statutory, regulatory, and common law.
For example, you might know about Company recipes, ingre-
dients, food preparation processes, suppliers, pricing infor-
mation, financial information, marketing proposals or plans,
or anticipated changes in management. These are examples of
sensitive business matters considered confidential and propri-
etary trade secrets. If revealed to a competitor or otherwise
used in violation of your fiduciary duties or statutory, regula-
tory, or common law obligations ,could result in the loss of a
business advantage or a violation of law.
Any violation of statutory, regulatory, or common law obliga-
tions regarding confidentiality seriously injures EYM King of
Michigan, LLC's reputation and effectiveness.
No one is permitted to remove or make copies of any EYM
King of Michigan, LLC records, reports, or documents with-
out prior management approval.
No Restriction on Protected Concerted Activity
Nothing contained anywhere in this Handbook or any other
Company policy is intended to or shall be construed to restrict
or restrain any employee from lawfully engaging in any activ-
ity which constitutes protected concerted activity under the
National Labor Relations Act or other applicable law.
Analysis
Respondent’s loitering and solicitation policies violate the Act;
Respondent’s loitering and solicitation policies as revised on
March 12, 2014, also violate the Act
An employer’s rules or policies which deny access to off-
duty employees to all areas of its premises and prohibits solici-
tation on any part of its property, violate the Act unless there is
some special circumstance to justify such a rule or policy,6
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Jury’s
Boston Hotel, 356 NLRB 927 (2011); Durham School Services,
360 NLRB 694 (2014); Saint John’s Health Center, 357 NLRB
2078 (2011); Tri-County Medical Center, 222 NLRB 1089
(1976).
As the Board noted in Saint John’s Health Center, citing Re-
public Aviation, the workplace is a particularly appropriate
place for the distribution of material or meetings relating to
Section 7 rights, such as organizing or other protected concert-
ed action.7 It is the one place where employees clearly share

6 The “special circumstances” to which the Supreme Court referred
were those necessary in order to maintain production or discipline. I
assume there may be other “special circumstances” which might justify
such a rule or policy.
7 The issue of where employees may distribute union or other pro-
tected literature was not fully litigated in this case. However, it seems
to me that to the extent Respondent’s rule prohibits employees from
distributing protected literature on the exterior areas of its property, the
common interests and where they traditionally seek to persuade
fellow workers in matters related to their status as employees.
This is particularly true in the instant case where some of the
workers are lower paid individuals who commute to work via
bus. Thus, barring off-duty employees and all Section 7 solici-
tation and distribution from the employer’s premises clearly
adversely impacts employees’ exercise of their fundamental
statutory rights.
Respondent’s justification for its rules is that its restaurants
are located in high-crime areas. To give credence to such an
explanation would effectively deprive millions of the lowest-
paid workers in the United States of the ability to assert their
Section 7 rights. As I pointed out numerous times at trial, there
is no material difference between security concerns in Detroit
and those in every inner-city in this country.
Respondent’s professed concerns regarding safety in justify-
ing its loitering and solicitation rules are manifestly specious.
The company has made no showing as to how this rule enhanc-
es safety. In this regard, it does not prohibit customers from
eating food purchased at its restaurants while sitting in their
cars in the restaurant parking lot. Moreover, people are just as
likely to be the victims of violent crime at Respondent’s drive
thru windows as anywhere else on the exterior of the restaurant.
Indeed, Respondent in its brief cites to one incident in which
the drive-thru at a nearby McDonald’s was robbed and another
in which a man was shot to death at the drive-thru at a nearby
Church’s Chicken. Whatever concerns Respondent has with
regard to violent crime and liability on the exterior of its restau-
rants are as applicable to customers as they are to off-duty em-
ployees.8
Respondent also suggests that allowing Section 7 activity on
its premises is unnecessary because off-duty employees could
engage in Section 7 activity in the vacant lot next to its Fern-
dale restaurant. Obviously, the danger to the employees of
being victims of violent crime would be even greater in the
vacant lot than in the parking lot of the restaurant.
Finally, Respondent cannot, in banning Section 7 activity
from its entire property, rely on the incidental work performed
in the parking lot. Employees and managers periodically patrol
the parking lots to keep it clean and to inspect its menu boards
for damage. Outside vendors deliver food to the restaurants in
large trucks and an outside vendor services Respondent’s
dumpsters.9

rule is illegal. Respondent probably can prohibit distribution in the
dining area, but possibly not in the crew room. Finally, Respondent
can probably prohibit off-duty employees from remaining in the dining
area if this is done pursuant to a rule which is nondiscriminatory on its
face and in its application. Also, it is important to note that differing
conditions at Respondent’s 22 locations may lead to different results.
8 To the extent there is any conflict between the NLRA and local
loitering ordinances, employees’ Section 7 rights prevail pursuant to the
Federal preemption doctrine, San Diego Building Trades Council v.
Garmon, 359 U.S. 236 (1959).
9 Respondent, in its brief, emphasizes the extremely high percentage
of its sales that are made via the drive-in windows. This shows that
keeping the parking lot free for dine-in customers is not essential to
Respondent’s business. It also shows that it not essential to prohibit all
protected activity from the dining areas of the Restaurants. These are
so infrequently used that Respondent feels free to conduct business
EYM KING OF MICHIGAN, LLC D/B/A BURGER KING 11
Under Tri-County Medical Center, a rule which limits the
access of off-duty employees to the employer’s premises may
be legal under certain circumstances. It must: (1) limit access
solely to the interior of the workplace and other working areas;
(2) be clearly disseminated to all employees; and (3) be appli-
cable to off-duty employees seeking access to the plant for any
purpose. However, an employer is not entitled to declare its
entire property to be a working area for the purpose of exclud-
ing employee solicitation and distribution activity. Work inci-
dental to the employer’s business that is performed on the
workplace exterior does not validate a policy banning off-duty
employees entirely from the employer’s premises, Santa Fe
Hotel & Casino, 331 NLRB 723 (2000); U. S. Steel Corp., 223
NLRB 1246, 1247–1248 (1976). The work performed in Re-
spondent’s parking lots is incidental to its main function of
preparing and selling food,
A rule is unlawful if it explicitly restricts activities protected
by Section 7. If this is not true a violation is established by a
showing that (1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) that the rule was
promulgated in response to protected activity; or (3) that the
rule has been applied to restrict the exercise of Section 7 rights,
Lutheran Heritage Village-Livonia, 343 NLRB 646, 647
(2004). Thus, by prohibiting solicitation by off-duty employees
in its parking lots, Respondent is violating Section 8(a)(1) of
the Act. Respondent’s loitering and solicitation rule is illegal
because it explicitly restricts protected rights and because it has
been applied to restrict those rights.
The confidentiality and professional conduct rules
The Board has held that an employer violates Section 8(a)(1)
when it maintains a work rule that reasonably tends to chill
employees in the exercise of their Section 7 rights, Lafayette
Park Hotel, 326 NLRB 824, 825 (1998). As stated above, a
rule is unlawful if it explicitly restricts activities protected by
Section 7. If this is not true a violation is established by a
showing that (1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) that the rule was
promulgated in response to protected activity; or (3) that the
rule has been applied to restrict the exercise of Section 7 rights,
Lutheran Heritage Village-Livonia, 343 NLRB 646, 647
(2004). The confidentiality and professional conduct rules,
unlike the loitering and solicitation rule, do not explicitly re-
strict Section 7 rights. They must be evaluated pursuant to first
criteria of the Lutheran Heritage decision, i.e. whether employ-
ees would reasonably construe the language to prohibit Section
7 activity.
The General Counsel alleges that Respondent’s confidenti-
ality and professional conduct rules violate the Act in numerous
provisions. In undertaking this analysis, I consider the fact that
in Lutheran Heritage the Board retreated somewhat from its
prior decisions in light of the decision of United States Court of
Appeals for District of Columbia in University Medical Center
v. NLRB, 335 F. 3d 1079 (D.C. Cir. 2003). In that case the
Court declined to enforce the Board’s decision at 335 NLRB

activity other than the sale of food, such as the September 21, 2012
employee meeting, in the dining area when customers are present.
1318 (2001), regarding a rule prohibiting “disrespectful con-
duct.” In Lutheran Heritage, the Board stated that it would not
conclude that a reasonable employee would read a rule to apply
to Section 7 activity simply because the rule could be so inter-
preted.
Applying this principle I conclude the following with regard
to the following provisions of Respondent’s confidentiality and
professional conduct rules:
Misconduct includes a failure to treat co-workers, customers,
supplier and visitors with courtesy and respect: I find this rule
would not, in isolation, be reasonably read to prohibit discus-
sion of wages, hours, working conditions or unionization.
Misconduct includes falsification, alteration, misrepresenta-
tion, or removal of company documents and/or records, or
documents required by law. I see nothing violative in this
language other than the inclusion of word misrepresentation.
This could be reasonably read to apply to verbal opinion
statements about company documents, as well physical tink-
ering or theft of company records. Unlike the cases cited by
the General Counsel, this rule does not prohibit disclosure of
company documents, it prohibits material changes to such
documents or theft of documents to which an employee is not
entitled.
Misconduct includes providing false information to the com-
pany regarding job applications, injuries, accidents or inci-
dents in the workplace. Misconduct includes making false,
fraudulent or malicious statements to the company about the
company, team members, customers, suppliers or visitors. I
find this rule violative in potentially exposing employees to
discipline for making statements which are merely false, as
opposed to being made maliciously and/or knowingly false.
Such a rule restricts employee rights by subjecting them to
discipline for discussing wages, hours and working conditions
unless they are absolutely sure they have their facts straight,
American Cast Iron Pipe Co., 234 NLRB 1126, 1131 (1978)
enfd. 600 F.2d. 132, 137 (8th Cir. 1979).10

10 The rules against falsification were not included in Respondent’s
March 12, 2014 revision. Respondent’s revised rules in exempting
protected concerted activity under the Act from their purview fails to
cure their defects. It is unreasonable to expect employees to understand
what constitutes protected concerted activity without further explana-
tion. The general reference to the rights protected by the Act is insuffi-
cient to render those rules compliant with the Act, Allied Mechanical,
349 NLRB 1077 fn. 1, 1084 (2007); Ingram Book Co., 315 NLRB 515
(1994).
In Passavant Memorial Area Hospital, 237 NLRB 138 (1978) the
Board set forth its criteria for curing past unfair labor practices. How-
ever, in Claremont Resort and Spa, 344 NLRB 832 (2005), two of the
three Board members stated that they “do not necessarily endorse all
the elements of Passavant.” In any event, by its terms the Passavant
decision indicates that what an employer must do to cure a violation
may depend on the nature of the violation. The Passavant case con-
cerned a threat, which was communicated to 30–40 employees, that
they would be fired if they engaged in an economic strike. In such a
case, the Board found that repudiation must be (1) timely, (2) unambig-
uous, (3) specific to the coercive conduct, and (4) free from other pre-
scribed illegal conduct.
I find that Respondent did not cure its violation of Section 8(a)(1) by
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Misconduct includes verbal or physical altercations, intimidat-
ing behavior, threats of violence or any sort of unprofessional
conduct toward any employee, customer, or others who you
encounter in connection with your employment, and using
foul or abusive language or profanity of any sort.
Due to unlimited scope of these rules with regard to what is
“abusive” and “unprofessional”, I conclude they could rea-
sonably be read to prohibit protected activity. I therefore find
these rules to violate Section 8(a)(1), Flamingo Hilton-
Laughlin, 330 NLRB 287, 295 (1999); 2 Sisters Food Group,
357 NLRB No. 168 (2011)
Misconduct includes sending, receiving or posting infor-
mation that could be considered defamatory or disparaging to
the Company. This rule is also broad enough that employees
would reasonably read it as prohibiting communication about
their wages, hours and working conditions. It therefore vio-
lates Section 8(a)(1). This is also true with regard to Re-
spondent’s rule stating the misconduct includes providing in-
formation or trade secrets to any media representative or in-
vestigator without company approval.11
Misconduct includes any off-duty offense which would reflect
negatively on the Company. Since this rule could reasonably
be read to cover protected activities related to the D15 cam-
paign, it is overbroad and violative of Section 8(a)(1).12
The confidentiality rule
While someone could read Respondent’s confidentiality rule
as applying to protected conduct, I conclude it would not be
reasonably read in such a manner. Taken in context the rule
applies to information other than wages, hours and working
conditions that would be useful to a competitor. The re-
strictions against copying documents would be reasonably
read to apply only to documents that employees would not be
entitled to possess. To the extent that NLRB investigators re-
quire access to such documents that the company claims to be
confidential, they can issue a subpoena.
The conduct of Charlene Pack in interfering with protected
activity on September 19, and the written warning given to
Claudette Wilson on September 20 violated the Act.
Since Store Manager Pack was acting pursuant to an illegal
rule in telling Claudette Wilson that she could not solicit other

simply issuing revised rules. In order to cure its violation, Respondent
would have been obligated, at a minimum, to clarify for its employees
that they have a Sec. 7 right to discuss wages, hours, and working con-
ditions and that they will not be disciplined for erroneous statements
which are not maliciously false. Moreover, the revocation of the overly
broad rule in this case was not free from other illegal conduct.
11 See fn. 10. To cure its violations relating to these rules Respond-
ent must affirmatively inform employees of their right to communicate
information regarding wages, hours, and working conditions regardless
of whether or not it “disparages” the company and that they are free to
communicate to the press and other third parties any information relat-
ing to these subjects.
12 See fn. 10. Simply not including this rule in its March 2014 is in-
sufficient to cure the violation created by including it in the original
rules, DaNite, 356 NLRB 975 (2011) [Member Hayes’ view: mere
rescission of an illegal rule is not enough to cure a violation].
off-duty employees for the Union in the parking lot and in
giving Wilson a written warning the next day, Respondent, by
Pack, violated Section 8(a)(1) in her conversation with Wil-
son on September 19 and Section 8(a)(3) and (1) in giving
Wilson the warning, Double Eagle Hotel & Casino, 341
NLRB 112, 112 fn. 3 (2004); enfd. 414 F.3d 1249 (10th Cir.
2005); cert. denied 546 U.S. 1170 (2006).
Complaint paragraph 11(b) statements made by Charlene Pack
to assembled employees at the September 21, 2013
employee meeting
The General Counsel appears to allege that Charlene Pack
violated Section 8(a)(1) in unscripted remarks at the September
21, 2013 mandatory employee meeting. I find that the record is
insufficiently clear to determine what she said other than read-
ing parts of the employee handbook. However, I find that by
reading Respondent’s illegal loitering rule verbatim to the as-
sembled employees, Pack violated Section 8(a)(1) of the Act
apart from anything else she said.
Complaint paragraph 11(c): alleged surveillance of union
activity by Charlene Pack
The General Counsel alleges that store manager Pack en-
gaged in unlawful surveillance of the union and/or protected
activities of Claudette Wilson and Jalissa Johnson in Wilson’s
car in the Ferndale store parking lot on September 19. I dismiss
this complaint allegation. It is generally not a violation of Sec-
tion 8(a)(1) for an employer to observe open union activity.
Also, I credit Pack’s testimony that she went out into the park-
ing lot to inspect it for cleanliness and to determine if there was
any damage to Respondent’s property—rather than to spy on
Wilson.
Wilson’s 2-2½ hour suspension on September 20 (complaint
paragraph 13(c)
In order to establish a violation of Section 8(a)(3) and (1),
the Board generally requires the General Counsel to make an
initial showing sufficient to support an inference that the al-
leged discriminatee’s protected conduct was a ‘motivating fac-
tor’ in the employer’s decision. Then the burden shifts to the
employer to demonstrate that the same action would have taken
place even in the absence of protected conduct, Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 889 (lst Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393, 399–403 (1983) ;
American Gardens Management Co., 338 NLRB 644 (2002).
Unlawful motivation and anti-union animus are often estab-
lished by indirect or circumstantial evidence.
In order to make a sufficient initial showing of discrimina-
tion, the General Counsel must generally make an initial show-
ing that (1) the employee was engaged in protected activity; (2)
the employer was aware of the activity; and (3) that animus
towards the protected activity was a substantial or motivating
reason for the employer’s action.
Wilson admits that she did not put pickles on her sandwiches
in perfect squares as she was supposed to, due to her anger over
the written warning she received. However, given Respond-
ent’s animus towards her protected activity, as evidence by the
illegal warning given to her the same day, I find that the Gen-
EYM KING OF MICHIGAN, LLC D/B/A BURGER KING 13
eral Counsel has made a prima facie that her discipline (being
sent home early) was related to Wilson engaging in protected
activity in Respondent’s parking lot the day prior. Thus, the
burden of proof has shifted to Respondent that it would have
sent Wilson home early even if she had not engaged in protect-
ed activity.
Respondent has made no showing that it would have sent
Wilson home in the absence of her protected activity. There-
fore, I find that it violated the Act in so doing.
Pack’s threat to remove Wilson from the September 21 meeting
(complaint paragraph (13(d))
Whether an employer violates the Act in threatening to re-
move an employee for refusing to sit down and be quiet at a
mandatory meeting depends on the circumstances. Some cases
involving similar situations to the facts of the September 21
meeting are Eagle-Picher Industries, 331 NLRB 169 (2000);
Anheuser Busch, Inc. 337 NLRB 3 (2001), enfd. 338 F. 3d 267
(4th Cir. 2003); Hicks Ponder Co., 168 NLRB 806 (1967);
Howell Metal Co., 243 NLRB 1136 (1979).
I conclude that an employer has to right to maintain decorum
at such meetings. Thus, I further conclude that Respondent, by
Pack did not violate the Act in telling Wilson that she had to
calm down and sit if she was to remain at the meeting. I also
find that Respondent did not violate the Act in refusing to allow
Wilson to ask questions at the end of the breakout meetings,
since she had already had an opportunity to express her opin-
ions.
SUMMARY OF CONCLUSIONS OF LAW
Respondent violated Section 8(a)(1) of the Act by:
1. Reading its illegal loitering and soliciting rule to employ-
ees at a mandatory employee meeting on September 21, 2013;
2. Enforcing and/or attempting to enforce its illegal loitering
and solicitation rules against off-duty employees on September
19, 2013.
3. Threatening Romell Frazier with discharge for discussing
work protests at work in October 2013;
4. By maintaining illegal rules pertaining to Loitering and
Soliciting and Professional Conduct-Misconduct.
Respondent violated Section 8(a)(3) and (1) by:
1. Issuing Claudette Wilson disciplinary warnings on Septem-
ber 20, 2013, and suspending her for part of her shift on
September 20, 2013.
REMEDY
Having found that the Respondent has engaged in certain un-
fair 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.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
ORDER
The Respondent, EYM of Michigan, LLC d/b/a Burger King,
Texas and Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Restricting the right of employees to discuss wages,
hours, and other terms and conditions of employment;
(b) Prohibiting off-duty employees from discussing wages,
hours, and other terms and conditions of employment in all
exterior areas of Respondent’s property;
(c) Prohibiting off-duty employees from engaging in union
or other protected activities in all exterior areas of Respond-
ent’s property;
(d) Prohibiting employees from misrepresenting company
documents and/or records;
(e) Prohibiting employees from making false statements or
providing false information about Respondent insofar as those
statement are not maliciously or knowingly false, and material;
(f) Prohibiting foul or abusive language and unprofessional
conduct insofar as this prohibition is so vague as to impact
activity protected by the Act, including the discussion of wages,
hours and other terms and conditions of employment;
(g) Prohibiting sending, receiving, or posting information
that could be considered defamatory or disparaging to the com-
pany;
(h) Prohibiting any off-duty offense which would reflect
negatively on the company;
(i) Threatening or disciplining employees for exercising
their rights to discuss wages, hours and other terms and condi-
tions of employment either while on duty or, off-duty in non-
work areas of company facilities;
(j) Maintaining overly-broad rules as set forth above;
(k) In any like or related manner interfere with, restrain or
coerce employees in the exercise of the rights guaranteed by
Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind and/or revise Respondent’s Loitering and Solici-
tation Policy as originally drafted and as revised in March
2014;
(b) Rescind and/or revise Respondent’s Professional Con-
duct/Misconduct rules as originally drafted and as revised in
March 2014;
(c) Cure its unfair labor practices regarding its overly broad
policies in a manner consistent with In Passavant Memorial
Area Hospital, 237 NLRB 138 (1978).
(d) Rescind the discipline imposed on Claudette Wilson on
or about September 20, 2013;
(e) Compensate Claude Wilson for any loss of earnings and
other benefits due to her inability to work a full-shift on Sep-
tember 20, 2013, including any adverse tax consequences; with
interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky Riv-
er Medical Center, 356 NLRB 6 (2010).
(f) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to any and all discipline im-
posed on Claudette Wilson as a result of her conduct on Sep-
tember 19–21, 2013, including all warnings and suspensions,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
and within 3 days thereafter notify the Claudette Wilson in
writing that this has been done and that none of this discipline
will be used against her in any way.
(g) Preserve and, within 14 days of a request, or such addi-
tional 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 rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(h) Within 14 days after service by the Region, post at all its
Detroit area restaurants copies of the attached notice marked
“Appendix.”14 Copies of the notice, on forms provided by the
Regional Director for Region 7, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since June 12, 2013.
(i) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. September 29, 2014
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half

14 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT restrict the right of employees to discuss wag-
es, hours and other terms and conditions of employment.
WE WILL NOT prohibit off-duty employees from discussing
wages, hours and other terms and conditions of employment in
all exterior areas of Respondent’s property.
WE WILL NOT prohibit off-duty employees from engaging in
union or other protected activities in all exterior areas of Re-
spondent’s property.
WE WILL NOT prohibit employees from misrepresenting com-
pany documents and/or records, unless such misrepresentations
are malicious and material.
WE WILL NOT prohibit employees from making false state-
ments or providing false information about Respondent insofar
as those statement are not maliciously or knowingly false, and
material.
WE WILL NOT prohibit foul or abusive language and unpro-
fessional conduct insofar as this prohibition is so vague as to
impact activity protected by the Act, including the discussion of
wages, hours and other terms and conditions of employment.
WE WILL NOT prohibit sending, receiving or posting infor-
mation that could be considered defamatory or disparaging to
the company.
WE WILL NOT prohibit any off-duty offense which would re-
flect negatively on the company.
WE WILL NOT threaten or discipline employees for exercising
their rights to discuss wages, hours and other terms and condi-
tions of employment either while on duty or, off-duty in non-
work areas of company facilities.
WE WILL NOT maintain overly-broad rules as set forth above;
WE WILL NOT in any like or related manner interfere with, re-
strain or coerce employees in the exercise of the rights guaran-
teed by Section 7 of the National Labor Relations Act.
WE WILL rescind and/or revise Respondent’s Loitering and
Solicitation Policy as originally drafted and as revised in March
2014.
WE WILL rescind and/or revise Respondent’s Professional
Conduct/Misconduct rules as originally drafted and as revised
in March 2014.
WE WILL cure our unfair labor practices regarding our overly
broad policies in a manner consistent with current labor law.
WE WILL rescind the discipline imposed on Claudette Wilson
on or about September 20, 2013.
WE WILL compensate Claude Wilson for any loss of earnings
and other benefits due to her inability to work a full-shift on
September 20, 2013, including any adverse tax consequences;
with interest at the rate specified by the NLRB, compounded
daily.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to any and all discipline
imposed on Claudette Wilson as a result of her conduct on Sep-
tember 19–21, 2013, including all warnings and suspensions,
and within 3 days thereafter notify the Claudette Wilson in
writing that this has been done and that none of this discipline
EYM KING OF MICHIGAN, LLC D/B/A BURGER KING 15
will be used against her in any way.
EYM KING OF MICHIGAN, LLC, D/B/A BURGER KING
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/07-CA-118835 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.