EYM King of Missouri d/b/a Burger King

National Labor Relations Board - Board Decisions

Jan 29, 2018

366 NLRB No. 5 (N.L.R.B. 2018)

366 NLRB No. 5
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.
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be included in the bound volumes.
EYM King of Missouri, LLC d/b/a Burger King and
Workers Organizing Committee—Kansas City.
Case 14–CA–188832
January 29, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
On September 29, 2017, Administrative Law Judge
Christine E. Dibble issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.2

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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 examined the record and, as further
explained below, find no basis for reversing the findings.
The complaint alleges that the Respondent, through General Manag-
er Wendell Toombs, violated Sec. 8(a)(1) by threatening to discharge
employees for engaging in a protected strike and then falsify the rea-
sons for the discharges. Employee Khadijah Brown testified that
Toombs made the threats, but Toombs vigorously denied Brown’s
version of events. The judge found Brown and Toombs to be “equally
credible on the issue of whether Toombs made the threatening state-
ments,” and that there was “little to nothing in the record to indicate
[that] Brown’s testimony is likely to be more credible than Toombs’
testimony or vice versa.” In these circumstances, we agree with the
judge that the General Counsel failed to meet his burden to establish
that the Respondent violated the Act. See El Paso Electric Co., 350
NLRB 151, 152 (2007), enfd. mem. 272 Fed. Appx. 381 (5th Cir.
2008); Central National Gottesman, 303 NLRB 143, 145 (1991); Iron
Mountain Forge Corp., 278 NLRB 255, 263 (1986).
The General Counsel argues for the first time in his exceptions brief
that the Respondent, through General Manager Toombs, coercively
interrogated employees in violation of Sec. 8(a)(1) by asking employ-
ees questions about their intention to strike. We find no merit in this
exception, as this allegation was not raised in the complaint or fully
litigated during the hearing. See Pellegrini Bros. Wines, Inc., 239
NLRB 1220, 1220 fn. 2 (1979).
In affirming the judge’s findings, we do not rely on her citation to
Brighton Retail, Inc., 354 NLRB 441 (2009), or Bloomfield Health
Care Center, 352 NLRB 252 (2008), enfd. mem. 372 Fed. Appx. 118
(2d Cir. 2010), as these cases were decided by a two-member Board.
See New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010).
2 We have corrected the judge’s inadvertent error of including as an
appendix a notice to employees and shall remove the notice.
In view of our disposition, we deny as moot the Respondent’s pend-
ing motion to reopen the record to admit new evidence.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. January 29, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Rebecca Proctor, Esq., for the General Counsel.
John L. Ross, Esq., for the Respondent.
Fred Wickham, Esq., for the Charging Union.
DECISION
STATEMENT OF THE CASE
CHRISTINE E. DIBBLE, Administrative Law Judge. This case
was tried in Overland Park, Kansas on June 30, 2017. The
Workers’ Organizing Committee—Kansas City
(“WOCKC/Union”) filed the charge in case number 14–CA–
188832 on November 28, 2016.1 The General Counsel issued
the complaint on March 28, 2017. On April 6, 2017, EYM
King of Missouri, LLC d/b/a Burger King (“the Respondent”)
filed a timely Answer to the complaint and notice of hearing.
On June 27, 2017, the Respondent filed an amended Answer.
The complaint alleges that the Respondent violated Section
8(a)(1) of the National Labor Relations Act (“NLRA/the Act”)
when: (1) on or about November 28, the Respondent, through
Wendell Toombs (“Toombs”), threatened employees with dis-
cipline up to and including termination if they engaged in a
protected work stoppage; and (2) told employees that after he
terminated then for engaging in a protected work stoppage, he
would falsify the reasons for their terminations.2
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Union, and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability company, engaged in the
retail operation of Burger King franchise restaurants selling
food and beverages to the general public, including at its restau-

1 All dates are in 2016 unless otherwise indicated.
2 These allegations are alleged in paragraphs 5(a) and (b) of the
complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
rants located at 1102 East 47th Street, Kansas City, Missouri.
During the 12-month period ending November 20, the Re-
spondent derived gross revenues in excess of $500,000. The
Respondent also purchased and received at its facilities in Mis-
souri goods valued in excess of $5000 directly from points
outside of the State of Missouri and remitted royalty and adver-
tising fees on behalf of its Missouri facility valued in excess of
$5000 to the Burger King Corporation, which is the franchisor
of the BURGER KING® system, and is headquartered in the
State of Florida. I find that at all material times the Respondent
has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
At all material times, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview of Respondent’s Operation and Managerial Staff
At some point, the Respondent assumed operation of the res-
taurant at 1102 E. 47th Street in Kansas City, Missouri (47th
Street). (Tr. 70.)3 During the relevant timeframe, the Respond-
ent employed approximately 40 employees at its 47th Street
Burger King (“BK”). Due to the high turnover rate among the
workforce at the restaurant, each week 2 to 3 people were hired
to replace the workers who quit or came to work late.
As part of its 47th Street operation, the Respondent em-
ployed a general manager, shift managers, cashiers, cooks, a
porter, and various other crew members. Since April 20,
Toombs has worked for the Respondent as the general manager
of the 47th Street Burger King restaurant.4 Between about
March 26, 2015 through about March 7, 2017, Sheeba Greer
(“Greer”) was a shift manager at the same location. From July
19 through about February 21, 2017, Cornelius McFadden
(“McFadden”) was a manager in training at the 47th Street BK;
and on September 10, 2015, Quashae Roper5 (“Roper”) began
as a shift manager at the 47th Street BK. Crew members at 47th
Street, among others, included Khadijah Brown (“Brown”),
Shyaine Hughes (“Hughes”), Joshlin Woodward (“Wood-
ward”), Laneqwa Williams (“Williams”), Rahman Sallee (“Sal-
lee”), and Shannon Ruth (“Ruth”).
B. Conversation on November 28 between employees
and Toombs
There are few undisputed facts in this case. On November
28, a conversation was held among a group of employees at
work about a one day strike6 scheduled for the next day spon-

3 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.” for General Counsel’s exhibit; “CP Exh.” for the
Charging Party’s exhibit; “R. Exh.” for the Respondent’s exhibit; “GC
Br.” for the General Counsel’s brief; “CP Br.” for the Charging Party’s
brief; and “R. Br.” for the Respondent’s brief.
4 Toombs normally arrived to work at 4:30 a.m. or 5 a.m. and left at
2 p.m. or 3 p.m.
5 Toombs provided credible, uncontroverted testimony that during
the relevant time period, Roper had transferred to another BK store and
was no longer working at the 47th Street location.
6 I have used “strike” and “work stoppage” interchangeably through-
out this decision.
sored by WOCKC. Toombs interjected himself into the con-
versation. After some discussion, everyone returned to work.
The same day, at approximately 3pm, Jeremy Al-Haj (“Al-
Haj”), a union organizer with Stand-Up KC, came to the restau-
rant to meet with several of the employees. Brown was one of
the employees who spoke to him, and she told him that she
feared being fired. Both Brown and Williams asked Al-Haj if
they could be fired for going on strike. He informed them that
under federal law, regardless of their length of employment,
they had a right to strike without retaliation from their employ-
er. Al-Haj returned to the 47th Street BK on November 28, at
about 6pm or 7pm to review Brown’s concerns about the possi-
bility of being fired if she participated in the strike the next day,
and to decide whether a charge should be filed with the Board.
On November 29, several of the Respondent’s employees
participated in the strike on November 29, and returned to work
without being subject to disciplinary action or termination. An
unconditional offer to return to work form was placed in
Toombs office where he received it when he got to work on
November 30. It included, among other striking employees, the
names of Brown, Williams, Roper, and Hughes.7
Toombs’ and Brown’s testimonies of the November 28 dis-
cussion differ, thereafter, on almost every relevant point.
Brown testified that on November 28, when she arrived for
work at 2pm8 Roper, Woodward, Williams and Hughes were
having a discussion with Toombs. She contends that she joined
in the conversation because she heard Toombs tell the employ-
ees that he was going to fire anyone who participated in the one
day strike the union had scheduled for the next day. In re-
sponse, she told Toombs that he could not fire them for going
on strike and Roper agreed with her. Brown testified that
Toombs allegedly acknowledged that Roper, Hughes, and
Woodward could strike because they were beyond their proba-
tionary period; but Brown and Williams, as probationary em-
ployees, were precluded from participating in the strike. She
claimed Toombs also told her, Roper, Hughes, Williams, and
Woodward that: (1) he would wait one or two weeks before
firing them so that it did not look like retaliation for their par-
ticipation in the strike; (2) he did not need a reason to fire them;
and (3) he hoped “Stand-Up KC” had new jobs lined up for
them. According to Brown, the conversation ended after
Toombs made these statements and everyone returned to work.
Brown testified that she continued the discussion with Roper
and McFadden who said Toombs was simply trying to frighten
the employees into not attending the strike.9 Moreover, Brown

7 Toombs provided undisputed testimony that none of the employees
who struck on November 29, except for Woodward and Robert Hill, are
currently employed at the 47th Street BK. There is no evidence, how-
ever, that the employees were terminated or voluntarily left because of
their strike activity.
8 Brown was employed at the Respondent’s 47th Street location
from mid-November 2016 to early January 2017 and was still a trainee
on November 28. Brown was regularly scheduled to work daily from 2
p.m. to 1 p.m., with the exception of Sunday when she worked from 11
a.m. to 6 p.m. Monday was her normal “off” day.
9 On direct examination, Brown testified about the substance of her
conversation with Roper and McFadden. The Respondent objected to
this testimony on the basis that it was hearsay. I allowed the testimony
EYM KING OF MISSOURI, LLC D/B/A BURGER KING 3
insists that Toombs never assured them that despite his com-
ments that he would not discipline or discharge them for partic-
ipating in the strike.
Toombs vigorously denied Brown’s version of the facts.
Toombs testified that on November 28, he heard several em-
ployees discussing the strike scheduled for the next day.
Toombs joined the conversation to ask them if they were going
to strike the following day. He testified that a few of the em-
ployees responded yes because they would receive $50 for
participating in the strike. Toombs stated that when he asked
them why they were striking, again a few responded that it was
because they would be paid $50. At this point, Toombs
claimed to have asked the employees to notify him if they were
going to participate in the November 29 strike so that he could
have extra employees cover the strikers’ shifts. He admits that
he could not recall which employees, except possibly Shannon
Ruth (“Ruth”), participated in the conversation on November
28. (Tr. 35–37.) However, Toombs insisted that Brown was
not among the group of employees discussing the strike, nor
was she at work on November 28. He appeared to base his
recollection of who participated in the November 28 conversa-
tion on the work schedule at R. Exh. 1.
I credit Brown’s testimony that she was at the 47th Street BK
on November 28 prior to 3pm because she had a corroborating
witness, Al-Haj. Although he was not able to provide first-
hand corroborating testimony about the substance of the No-
vember 28 conversation and which employees were present,
Al-Haj was able to give undisputed testimony that he met
Brown at the restaurant on November 28 to review her com-
plaint about Toombs alleged threatening statements. His testi-
mony corroborated only that she was at the restaurant, but not
that she was working or scheduled to work that day.
Toombs could not recall who, specifically, participated in the
November 28 conversation, thus diminishing the weight of his
testimony on this point. Nevertheless, the Respondent intro-
duced a copy of the weekly schedule for the date at issue which
reveals that Brown, Roper, Hughes, and Williams were not on
the schedule to work. (R. Exh. 1.) Toombs testified that Roper
had been transferred to a different restaurant prior to November
28 so she would not have been employed at the 47th Street
location on November 28. Roper, nevertheless, continued to be
employed by the Respondent on November 28. According to
Toombs, Williams stopped coming to work but admits she was
still employed with the Respondent from November 24 – 30.
The General and Counsel and Charging Party argue that R.
Exh. 1 should not be given any weight because it is inaccurate.
See GC Br. 8–14; CP Br. 7–10. I find that R. Exh. 1 has mini-
mal evidentiary value because: (1) the complaint alleges that
the Respondent, through Toombs, made threatening comments

with the caveat that I would give it the weight it deserved. Based on
my review of the evidence, the Board rules, and the federal rules of
evidence, I find that Brown’s testimony on this point is given no
weight. The best evidence would have been Roper’s and, or McFad-
den’s testimonies; and the General Counsel provided no reason for
failing to call them to testify about the substance of the conversation.
Consequently, Brown’s testimony on this point is nothing more than
hearsay with no obvious exception to the hearsay rule. Therefore, it is
given no weight.
to several of its employees. Toombs admits he heard a group of
employees discussing the November 29 strike and asked them
questions about it. The relevant inquiry is whether he made the
alleged threatening statements. Brown accused Toombs of
making the statements and I was able to credit her testimony
that she was at the restaurant during the period in question,
independent of R. Exh. 1. Moreover, the merits of the case will
be based entirely on credibility findings. Consequently, I do
not find it necessary to rule on the credibility of R. Exh. 1.
I find that Brown and Toombs appeared equally credible on
the issue of whether Toombs made the threatening statements.
Neither was superior to the other in terms of their demeanor.
Moreover, I find little to nothing in the record to indicate the
Brown’s testimony is likely to be more credible than Toombs’
testimony or vice versa. Since the General Counsel has the
burden of proving credibility, I credit Toombs’ version of the
conversation that occurred with him and a group of employees
on November 28; and his denial that he made the alleged
threatening statements. See Central National Gottesman, 303
NLRB 143, 145 (1991) (finding that the General Counsel did
not meet its burden of proof because the testimony that the
allegation occurred was equally credible as the testimony that
denied the allegation); Blue Flash Express, 109 NLRB 591,
591–592 (1954) (same), questioned on other grounds, Alleghe-
ny Ludlum Corp. v. NLRB, 104 F.3d 1354 (D.C. Cir. 1997).
III. DISCUSSION AND ANALYSIS
The General Counsel argues that the merits of the case rest
entirely on the credibility of two main witnesses: Brown and
Toombs. According to the General Counsel, Brown is more
credible because: (1) Brown’s testimony was corroborated by
witnesses who were more credible than the Respondent’s wit-
nesses; (2) the totality of the circumstance makes it more likely
than not that Brown was at work and participated in the No-
vember 28 conversation, thus discrediting Toombs’ testimony
on this point; and (3) the Respondent’s exhibit 1 is not accurate,
and thus not credible.
The Respondent counters that the General Counsel has failed
to meet his burden of proof because: (1) the General Counsel’s
case rests entirely on the uncorroborated testimony of one wit-
ness, Brown; and (2) Brown’s testimony was internally incon-
sistent and contradicted by other credible evidence.
The General Counsel argues that, taken in context, Toombs’
alleged statements to employees would “reasonably tend to
restrain, coerce or interfere with rights guaranteed by the Act.”
Bloomfield Health Care Center, 352 NLRB 252 (2008), quot-
ing Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984),
enfd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985). Section 8(a)(1) of the Act provides that it is an
unfair labor practice for an employer to interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed in
Section 7 of the Act. The rights guaranteed in Section 7 include
the right “to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.” See Bright-
on Retail, Inc., 354 NLRB 441, 441 (2009). The Board has
established an objective test for determining if “the employer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
engaged in conduct which would reasonably have a tendency to
interfere with the free exercise of employee rights under the
Act.” Santa Barbara News-Press, 357 NLRB 452, 476 (2011).
This objective standard does not depend on whether the “em-
ployee in question was actually intimidated.” Multi-Ad Ser-
vices, 331 NLRB 1226, 1228 (2000), enfd. 255 F.3d 363 (7th
Cir. 2001). The mere threat of an unspecified reprisal is suffi-
cient to support a finding that the employer has violated Section
8 (a)(1) of the Act. Metro One Loss Prevention Services Group,
356 NLRB 89, 89 (2010).
Based on the evidence, I find that the General Counsel has
failed to establish that the Respondent, through Toombs, made
the alleged threatening statements for the reasons discussed
below.
As previously noted in the facts section of the decision, the
General Counsel failed to establish that Brown was a more
credible witness than Toombs. Moreover, the General Counsel
failed to produce corroborating witnesses to overcome the defi-
cits with Brown’s testimony and overall demeanor. A party’s
failure to explain why it did not call the favorable witness may
support drawing an adverse inference. See Martin Luther King,
Sr. Nursing Center, 231 NLRB 15, 15 fn. 1 (1977). Ultimately,
however, the judge has discretion to decide whether an adverse
inference is warranted when a party fails to call witnesses rea-
sonably assumed to be favorably disposed toward the party.
The Board and the Federal courts have also consistently held
that it is not an abuse of discretion if the judge decides not to
take an adverse inference against a party for not calling a wit-
ness even if that witness is the party’s former supervisor. Advo-
cate South Suburban Hospital v. NLRB, 486 F.3d 1038, 1048
and fn. 8 (7th Cir. 2006) (adverse inference warranted only
when the missing witness is peculiarly in the power of the other
party to produce); Christie Electric Corp., 284 NLRB 740, 748
fn. 137 (1987) (declining to draw an adverse inference for the
failure to call a former supervisor). In the case at issue, Roper,
Woodward, Williams, and Hughes could have been assumed to
be favorably disposed towards the General Counsel’s case. If
called by the General Counsel, one or more of the 4 witnesses
might have supported in whole or in part Brown’s version of
the November 28 conversation with Toombs and who was pre-
sent to hear him make the alleged statements.
Even if a judge decides not to draw an adverse inference, the
failure of the General Counsel to call identified corroborating
witnesses may be a consideration in the judge’s determination
of whether the General Counsel’s case has been significantly
weakened, and thus a factor which leads to a finding that the
General Counsel has failed to meet the burden of proof. See
Stabilus, Inc., 355 NLRB 836, 841 fn. 19 (2010) (“The lack of
corroboration from Lockridge weakens the General Counsel’s
case.”). The Board has consistently held that the judge may
consider the General Counsel’s failure to call a potentially cor-
roborating witness in deciding whether a violation of the Act
has occurred. See C & S Distrib., 321 NLRB 404, 404 fn. 2
(1996) (“a judge may properly consider the failure to call an
identified, potentially corroborating witness … as a factor in
determining whether the General Counsel has established by a
preponderance of the evidence that a violation has occurred.”);
citing Queen of the Valley Hospital, 316 NLRB 721, 721 fn. 1
(1995) (same).
The General Counsel has the ultimate burden of proof. In
the matter at hand, it is the General Counsel’s responsibility to
prove by a preponderance of the evidence that Toombs made
the threatening statements attributed to him by Brown. Since I
previously found that based on their comparative demeanor,
neither Toombs nor Brown was superior; it was incumbent
upon the General Counsel to produce alternate persuasive evi-
dence. For example, the General Counsel could have produced
any of the employees that Brown testified were present when
Toombs allegedly made the threatening statements or any other
corroborating evidence. While the General Counsel argues that
Al-Haj corroborated Brown’s version of events, the evidence
indicates otherwise. Al-Haj simply testified to what Brown
told him. He was not actually present when the conversation
involving several employees and Toombs occurred so he has no
first-hand knowledge of what was said. This is a “he-said-she-
said” situation with equally credible witnesses and no addition-
al persuasive evidence to break the tie. Consequently, Board
law holds that I must find the General Counsel did not carry its
burden of proof. See Iron Mountain Forge Corp., 278 NLRB
255, 263 (1986).
Accordingly, I find that the General Counsel failed to meet
its burden of proof regarding this allegation and recommend
that paragraphs 5(a) and (b) of the complaint be dismissed.
Dated: Washington, D.C. September 29, 2017