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

National Labor Relations Board - Administrative Judge Opinions

May 19, 2014

31-CA-104872 (N.L.R.B. May. 19, 2014)

JD(ATL)–17–14
Ontario, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
HOOT WINC, LLC and ONTARIO
WINGS, LLC d/b/a HOOTERS OF
ONTARIO MILLS, JOINT EMPLOYERS
and Cases 31–CA–104872
31–CA–104874
ALEXIS HANSON, an Individual
and Cases 31–CA–104877
31–CA–104892
JAMIE WEST, an Individual
and Cases 31–CA–107256
31–CA–107259
CHANELLE PANITCH, an Individual
Juan Carlos Gonzalez, Esq. and Amanda Dixon, Esq.,
for the General Counsel.
Justin J. Johl, Esq.,
for the Respondent Hoot Winc, LLC.
Michael Barnett, Esq.,
for the Respondent Hooters of Ontario, LLC
Burton F. Boltuch, Esq.,
for the Charging Party Alexis Hanson.
DECISION
Statement of the Case
WILLIAM NELSON CATES, Administrative Law Judge. This case was tried before me
in Los Angeles, California, on January 29 and 30, 2014.1 Charging Party Alexis Hanson, an
individual, filed the charges in Cases 31–CA–104872 and 31–CA–104874 initiating this matter

1 All dates are 2013, unless otherwise indicated.
JD(ATL)–17–14
2
on May 9,2 and the General Counsel (Government) issued an order consolidating cases,
consolidated complaint, and notice of hearing (complaint) on September 27 and amended on
December 12 against Hoot Winc, LLC (Hoot Winc) and Hooters of Ontario, LLC d/b/a Hooters
of Ontario Mills (Hooters of Ontario). The Government alleges Hoot Winc an Oceanside,
California company providing restaurant management services and Hooters of Ontario, an 5
Ontario, California company operating a public restaurant selling food and beverages are joint
employers of the employees of Hooters of Ontario. I shall refer to Hoot Winc and Hooters of
Ontario collectively as the Company. The complaint also alleges the Company has maintained
certain rules in an employee handbook, and, a confidential information agreement, that infringe
upon employees Section 7 rights in violation of Section 8(a)(1) of the Act. It is also alleged the 10
Company maintains an arbitration policy, an agreement to arbitrate and an acknowledgement of
receipt of arbitration agreement that infringes upon employees Section 7 rights in violation of
Section 8(a)(1) of the Act. It is also alleged the Company on April 23 suspended and on April
26 discharged Charging Party Hanson because she concertedly complained to the Company
regarding wages, hours, and working conditions of the Company’s employees, and conditions 15
surrounding an upcoming competition involving the employees and such actions of the
Company are alleged to interfere with, retrain, and coerce employees in the exercise of rights
protected by Section 7 and in violation of Section 8(a)(1) of the Act.
The parties were given full opportunity to participate, to introduce relevant evidence, to 20
examine and cross-examine witnesses, and to file briefs. I carefully observed the demeanor of
the witnesses as they testified and I rely on those observations here. I have studied the whole
record, and based on the detailed findings and analysis below, I conclude and find the
Company violated the Act as outlined below.
25
FINDINGS OF FACT
I. JURISDICTION AND RELATED ISSUES
A. Jurisdictional Status of Hoot Winc and Hooters of Ontario30
Hoot Winc has been, and continues to be, a limited liability company with an office and
place of business in Oceanside, California, providing restaurant management services. During
the calendar year ending December 31, 2012, Hoot Winc in conducting its business operations,
performed services valued in excess of $50,000 in states other than the State of California. The 35
parties admit, and I find, Hoot Winc is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
Hooters of Ontario, has been and continues to be, a limited liability company with an
office and place of business in Ontario, California, operating a public restaurant selling food 40
and beverages. During the calendar year ending December 31, 2012, Hooters of Ontario
derived gross revenues in excess of $500,000 and bought and received at its Ontario, California
facility products, goods, and materials in excess of $5000 directly from points outside the State

2 I do not allude to the other charges as Hanson’s discharge is the only discharge before me. Other
allegations are, however, alleged, considered, and decided here.
JD(ATL)–17–14
3
of California. The parties admit, and I find, Hooters of Ontario is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
B. Joint Employer Status
5
It is alleged that Hoot Winc and Hooters of Ontario have, at all times here, been joint
employers of Hooters of Ontario’s employees at the Hooters Restaurant of Ontario, California.
It is also alleged Hoot Winc has exercised control over the labor relations policies of Hooters of
Ontario and administered a common labor policy for employees of Hooters of Ontario. It is
admitted that Hoot Winc has provided human resources services to Hooters of Ontario, but 10
Hoot Winc denies they are joint employers.
The Government contends Hoot Winc had a joint employer relationship with Hooters of
Ontario and the relationship existed at the time Hoot Winc suspended and terminated Hooters
of Ontario employee Charging Party Hanson.15
Hoot Winc and Hooters of Ontario contend they are not joint employers but separate
distinct entities with Hoot Winc simply providing human resources, management, accounting,
and similar expertise to not only the Ontario restaurant but 18 other Hooters’ restaurant
locations in California. Hoot Winc and Hooters of Ontario argue the following shows they 20
were and are not joint employers, namely: 1) they are separate entities; 2) Hooters of Ontario is
owned by a holding company not Hoot Winc and Hoot Winc is not a member of the holding
company that owns Hooters of Ontario; 3) neither is a subsidiary of the other; 4) Hooters of
Ontario engages Hoot Winc to provide restaurant management services through a written fee-
for-services agreement; and 5) Hanson was an employee of and paid by Hooters of Ontario not 25
Hoot Winc.
A joint employer relationship may be found to exist where there is sufficient evidence
that one company has immediate control over the other company’s employees. The Board in
Aim Royal Insulation, Inc., 358 NLRB No. 91, slip op. at 7–8 (2012), stated:30
The test for joint-employer status is whether two entities “share or co-determine
those matters governing the essential terms and conditions of employment.”
Laerco Transportation, 269 NLRB 324, 325 (1984). To establish a joint-
employer relationship, there must be evidence that one employer “meaningfully 35
affects matters relating to the employment relationship such as, hiring, firing,
discipline, supervision, and direction of the other employer’s employees.” Id.
In Capital EMI Music, 311 NLRB 997, 999 (1993), enfd. 23 F.3d 399 (4th Cir 1994), a
case which I cannot deny familiarity with, the Board noted:40
Joint employers are businesses that are entirely separate entities except they both
“take part in determining essential terms and conditions” of a group of employees.
Manpower, Inc., 164 NLRB 287, 288 (1967). Accord: NLRB v. Browning-Ferris
Industries, 691 F.2d 1117, 1122–1123 (3d Cir. 1982), and cases there cited.45
JD(ATL)–17–14
4
In NLRB v. Browning-Ferris Industries, supra, the court specifically found that where
two separate entities share or codetermine those matters governing the essential terms and
conditions of employment they are considered joint employers for the purpose of the Act.
Did Hoot Winc participate meaningfully in exercising control over matters governing 5
the terms and conditions of employment of Hooters of Ontario employees, and, more
specifically with respect to Charging Party Hanson’s employment? The evidence establishes
Hoot Winc did. Hoot Winc Vice President of Human Resources Herrmann, when notified of
the situation at the Hooters of Ontario bikini contest, directed Hooters of Ontario General
Manager Vidauri to suspend employees Hanson and Panitch and to conduct an investigation to 10
see what action would be taken. Herrmann personally investigated the situation at the Ontario
restaurant. Thereafter, Herrmann notified both Panitch and Hanson she was terminating their
employment. Herrmann testified she determined to fire Panitch before she spoke with her and
determined to fire Hanson while speaking with her. Herrmann signed the discharge notices
provided to Hanson and Panitch and only mentioned her termination decisions to Regional 15
Director Peterson and General Manager Vidauri.
During material times here, Hoot Winc Regional Director Peterson disciplined (oral and
written) Ontario General Manager Vidauri and Bar Manager Ramirez. Both Vidauri and
Ramirez are management personnel but it further demonstrates the direct control Hoot Winc 20
exercised over Hooters of Ontario. The discipline given Vidauri and Ramirez was based on
comments they made about Hooter Girl employees at Hooters of Ontario.
Hoot Winc developed and provides the “Employee Handbook” given to each Hooters of
Ontario employee. The Hoot Winc name, appears on each page of the handbook. The 25
Employee Handbook (GC Exh. 18) addresses conduct, dress, allowable grooming practices,
open door policy, non-harassment policy, restaurant work rules, company philosophy,
employee relations, employee meals, alcohol consumption, safety, discipline, pay, benefits,
vacation, absences, substance abuse, and other policies. A number of the policies inform
Hooters of Ontario employees to contact Hoot Winc directly. The open door policy, for 30
example, directs employees to first address work-related concerns with their immediate
supervisor or general manager but if the matter is not resolved to then report their concerns to a
regional supervisor and if appropriate report their complaint directly to Hoot Winc human
resources via telephone or email. Hoot Winc issues to each Hooters of Ontario employee its
standard operating procedure booklet (GC Exh. 20) which addresses various policies and 35
procedures for Hooters of Ontario employees. For example, with respect to the anti-harassment
and discrimination procedures it is specifically noted that Hoot Winc Vice President of Human
Resources (in this case Herrmann) was ultimately responsible for hearing complaints,
conducting investigations, documenting information, and determining what action would be
taken regarding those procedures. Other procedures are addressed such as what employees at 40
Hooters of Ontario must wear, meal and rest break guidelines and requirements, when and how
employees will be paid, tip allocations, communications with employees, medical
reimbursement, and work schedules.
It is clear Hoot Winc has immediate and effective control in determining the terms and 45
conditions of employment of Hooters of Ontario employees.
JD(ATL)–17–14
5
Hoot Winc and Hooters of Ontario’s contention, there is no joint employer relationship
here, is invalid, because, among other reasons, the contentions are grounded on corporate
structure and separate entities and not on control, or lack thereof, by one entity over employees
of the other concerning essential terms of employment. The fact, for example, that Hanson’s 5
and Panitch’s paychecks were drawn from Hooters of Ontario accounts does not require a
different result than I conclude here, namely, that a joint employer relationship exists.
As noted elsewhere here, I shall refer to Hoot Winc and Hooters of Ontario jointly as
the Company.10
C. Supervisory and Agency Status
It is admitted that Vice President of Human Resources Amber Herrmann (Herrmann or
Vice President of Human Resources Herrmann) and Regional Director Scott Peterson (Peterson 15
or Regional Director Peterson) were supervisors within the meaning of Section 2(11) of the Act
and/or agents of Hoot Winc or Hooters of Ontario within the meaning of Section 2(13) of the
Act. It is, however, denied that Marketing coordinator/key employee Pamela Noble and Key
employee Alicia Wade (Strohman) are supervisors and/or agents within the meaning of the Act.
20
1. Facts
Marketing Coordinator Noble and employee Wade both were, at applicable times, “key
employees” for the Company. As the name implies key employees are provided keys to the
restaurant and cash registers. No other non-management employees have keys either to the 25
restaurant or cash registers. Charging Party Hanson explained that if a “Hooters Girl” had a
problem with a customer’s check (bill), that is, something was rang up incorrectly, or the
customer had, for example, a discount coupon, the key employee on duty could delete items
from a customer’s bill or give the customer credit for a promotional coupon. Key employees
may go to the bank or take inventory for the Company.30
Key employees sometimes conduct “jumpstart” sessions at the beginning of the
workday or shift. Hanson described “jumpstart” sessions as “just a little meeting we have
before our shift every day.” Upcoming events and specials at the restaurant, sales for the day,
merchandise sales, and section assignments are discussed and/or made.35
Key employees sometimes “cut the floor.” Cutting the floor happens when there are
more workers present than the customer base justifies. Key employee Noble explained “. . . we
have to check labor every hour. And if it’s over ten percent, we’re supposed to cut accordingly.
That way we can save money on labor, so normally we ask who wants to stay and go.” If 40
volunteers do not resolve who goes “Hooter Girls” name tags are collected and it is decided
who will leave work that shift by drawing name tags. Noble testified employees were never
just selected because that would not be fair.
There were times at the restaurant when key employees were present while managers 45
were not. If anything occurred on a shift, with no manager present, the key employee would
JD(ATL)–17–14
6
leave a note for the general manager. Key employee Wade stated if an issue arose she could
coach or counsel the employee, and had, on a couple of occasions, filled out a computer
generated document on which she recorded what had occurred. Wade viewed the computer
form as basically a type of written warning letter. She explained the computer generated
document “is not considered at issue, nor valid, unless it is given by upper management.” 5
Wade could not recall whether upper management actually issued the warnings she had drafted.
General Manager Vidauri testified key employees could not hire, fire, or suspend other
employees.
Marketing coordinator and key employee, Noble, when also functioning as marketing 10
coordinator, had the additional duty of setting up promotional events such as the April 22 bikini
contest at the Ontario location.
2. Analysis and applicable principles
15
Section 2(11) of the Act defines a “supervisor” as:
Any individual having authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust their grievances, or 20
effectively to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature, but requires
the use of independent judgment.
To establish that Noble and Wade were supervisors, the Government must prove by a 25
preponderance of the evidence: (1) that they held authority to engage in any one of the 12
enumerated supervisory functions listed above; (2) that their “exercise of such authority [was]
not of a merely routine or clerical nature, but require[d] the use of independent judgment”; and
(3) that their authority was held “in the interest of the employer.” See, e.g., NLRB v. Kentucky
River Community Care, 532 U.S. 706, 710–713 (2001); Oakwood Healthcare, Inc., 348 NLRB 30
686, 687 (2006). The Government can prove they had the requisite supervisory authority either
by demonstrating they actually performed a supervisory action or by showing they effectively
recommended it be done. Oakwood, above. Further, “to exercise ‘independent judgment’ an
individual must at minimum act, or effectively recommend action, free of the control of others
and form an opinion or evaluation by discerning and comparing data.” Id. at 692–693. A 35
“judgment is not independent if it is dictated or controlled by detailed instructions, whether set
forth in company policies or rules, the verbal instructions of a higher authority, or in the
provisions of a collective-bargaining agreement.” Id. at 693. Because the Government bears
the burden of proving supervisory status any lack of evidence on an element necessary to
establish supervisory status must be held against the Government. G4S Regulated Security 40
Solutions, 358 NLRB No. 160, slip op. at p. 1 (2012).
Applying these principles here, I find the Government’s evidence fails to establish
Noble and/or Wade possessed any indicia of supervisory authority.
45
JD(ATL)–17–14
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The fact an employee is given a literal key to the employer’s facility and cash registers
does not, in any way, establish the employee has authority to exercise any indicia of
supervisory status as outlined above. At best, assigning an employee keys to the facility and
cash registers may indicate a degree of trust by the employer in the employee but little else.
The fact a key employee is authorized to correct a customer’s bill where incorrect data has been 5
entered into the company cash register or giving customers credit for valid promotion coupons
does not establish key employees have or exercise any indicia of supervisory status. That key
employees may take inventory or do banking transactions for a manager does not establish an
indicia of supervisory authority.
10
Key employees may, when managers are not present, conduct jumpstart meetings at the
beginning of shifts. The evidence in this regard only establishes that key employees notify
employees concerning upcoming events at the restaurant, sales for the day including particular
merchandise sales, and, advising “Hooter Girls” which tables and sections of the restaurant
they will be assigned for that day. There is absolutely no showing, on this record, that key 15
employees utilize independent judgment when making such announcements or assignments. It
appears key employees simply followed a set routine in selecting employees to cover customer
tables.
In cutting the floor or reducing the number of “Hooter Girls” in relation to customers 20
key employees simply perform a routine check of labor every hour, and, on a specific
percentage ratio of labor to customers, they cut or reduce the work force. Key employees do
not independently select employees to be cut but rather ask for volunteers; or, collect “Hooter
Girl’” name tags and conduct a drawing to determine which employee(s) are sent home for the
remainder of the workshift. This activity does not establish key employees responsibly direct 25
worktimes for employees of the restaurant.
The Government contends key employees prepare written disciplinary warnings for
employees which are approved by the General Manager and issued. The Government further
contends this procedure establishes key employees effectively issue discipline to other 30
employees, because upper management follows the key employees’ recommendations. I find
the evidence here is insufficient to carry the Government’s burden. A key employee may, if no
managers are present on a shift, document an event that occurred on the shift which
management might need to know about. Key employee Wade indicated she could coach and/or
counsel an employee and that on a couple of occasions she documented what had occurred for 35
the General Manager. Key employee Wade considered the forms she prepared basically a type
of written warning but added the document was not considered an issue or valid unless it was
given to the employee involved by upper management. This evidence does not shed light on a
key employees’ disciplinary authority. It does not establish that Wade, or the other key
employee, utilized independent judgment regarding a warning recorded about an incident. The 40
fact the General Manager may have issued some form of discipline, based, at least in part, on
the event documented by a key employee does not establish an effective recommendation of
discipline by the key employee such as to establish Wade, or the other key employee, to be
supervisors within the meaning of the Act. The evidence does not demonstrate specific
examples of independent judgment regarding discipline. I find the Government failed to 45
establish Noble and Wade were supervisors within the meaning of the Act.
JD(ATL)–17–14
8
The Government additionally, or alternatively, contends Noble and Wade are agents of
the Company pursuant to Section 2(13) of the Act. Section 2(13) of the Act reads as follows:
In determining whether any person is acting as an “agent” of another person so as 5
to make such other person responsible for his act, the question of whether the
specific acts performed were actually authorized or subsequently ratified shall not
be controlling.
The Board looks to the common law principles of agency in determining who is an 10
agent under the Act and those principles must be broadly construed when applied to labor
relations. Longshoremen ILA (Coastal Stevedoring Co.), 313 NLRB 412, 415 (1993). The
doctrine of apparent authority results from a manifestation by the principal to a third party that
creates a reasonable basis for the latter to believe that the principal had authorized the alleged
agent to perform the acts in question. The test is whether, under all the circumstances, 15
employees would reasonably believe that the employee in question was reflecting company
policy and/or acting and speaking for management. Hausner Hard-Chrome of Kentucky, 326
NLRB 426, 428 (1998).
The evidence establishes Noble and Wade both were agents of the Company within the 20
meaning of Section 2(13) of the Act. Wade for example prepared incident disciplinary type
reports for management by which employees would reasonably believe she was reflecting
company policy and spoke for management. Noble’s April 3 message to the bikini contest
participants, in which she explained if they signed up for the contest and did not show up they
would be terminated, would cause employees to reasonably believe her memorandum reflected 25
Company policy, especially in light of the fact upper management knew of the message.
Additionally, the fact Noble and Wade both conducted jumpstart meetings with employees,
opened the restaurant, and had keys to the cash registers, made banking transactions for the
Company, corrected and adjusted customers’ bills and checked labor rates and cut the work
force would reasonably cause employees to conclude they were performing their duties on 30
behalf of management. I find the evidence establishes Noble and Wade were, at applicable
times, agents of the Company.
II. ALLEGED UNFAIR LABOR PRACTICES
35
A. The Suspension and Discharge of Alexis Hanson
1. The Government’s evidence
The thrust of this case centers around the discharge of Charging Party Hanson. 40
Hanson’s discharge centers around the Company’s annual bikini contest held at the Ontario
Hooters location on April 22. Hanson was a participant in the contest. Hanson worked as one
of approximately 40 “Hooter Girls” at the Ontario, California Hooters location. Her entire
employment from April 2011, until her suspension on April 23, and discharge on April 26, was
at that location. Hanson worked 5 days per week totaling 30 hours at $8.25 per hour plus tips. 45
As a Hooter Girl Hanson greeted customers, waited tables, and handled cash and credit
JD(ATL)–17–14
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payments by customers. In addition to her Hooter Girl duties she also served as a certified
trainer, training new hires, and assisted in opening new Hooters locations.
Ontario General Manager Gerardo Vidauri, among others, conducted mandatory
bartender meeting’s and held such a meeting in April.5
Bartender Panitch attended the April meeting and thereafter spoke with “Hooter Girls”
and coworkers Hanson and Rochelle about what she considered inappropriate or disparaging
remarks, about the two coworkers among others. Hanson told Panitch she should immediately
telephone Regional Director Peterson and tell him everything that had happened that it was 10
unprofessional. Panitch spoke with Hooter Girl Rochelle on the telephone. Rochelle “was very
upset” and was going to speak with Regional Manager Peterson also and reported back to
Panitch as soon as she had spoken to Peterson.
Hanson, who did not attend the meeting, but, received a text message, with complaints, 15
about the meeting, from bartender Chanelle Panitch, whom she met for lunch later that day.
Panitch told Hanson everything that occurred at the bartenders meeting that day. Marketing
coordinator and key employee, Noble, and key employee Wade were at the meeting at which
General Manager Vidauri and Bar Manager Chris Ramirez talked about the Ontario Hooter
Girls. Panitch testified the managers specifically spoke about five Hooter Girls; namely, Alexis 20
Hanson, Jaime West, Jean Delroja, Kelli Rochelle, and Candyce Miller. Panitch told Hanson
the first full hour of the meeting was spent talking about the Hooter Girls being fat along with
other derogatory comments. Hanson testified Panitch explained that Gerardo, Ramirez, and
Noble called one of the Hooter Girls, Lena Delroja, “stupid” and a “dumb blond,” and, that
bartender and Hooter Girl Kelli Rochelle’s singing career was not going anywhere. Rochelle 25
was not present at the meeting. Hanson testified Panitch told her General Manager Gerardo
said Hooter Girl Angela was fat and looked that way in her uniform. Panitch told Hanson that
Bar Manager Ramirez said Hooter Girl Candyce Miller, “scrunched her hair like a Mexican and
had tattoos that they didn’t like.” Panitch explained to Hanson, she thought it was not a
professional work environment and felt if they were saying these things about other employees, 30
what were they saying about her when she was not present. Panitch told Hanson this upset and
made her uncomfortable and unhappy. Panitch told Hanson her name was brought up at the
bartenders meeting. Panitch said they were talking about promoting someone to bartender and
Hanson’s name was mentioned as a good candidate. Panitch told Hanson General Manager
Vidauri responded that Hanson just demanded and expected to be promoted and “if [she] didn’t 35
have an attitude problem then he would.” Hanson told Panitch it wasn’t right that her name
was brought up without her being present and she wanted a direct meeting with Vidauri so if
she had an attitude problem he could address it with her and not in front of all the other
bartenders. Hanson testified it made her unhappy and she wanted to confront General Manager
Vidauri in person, but Panitch thought it would make it uncomfortable for her (Panitch) 40
because she was the one that had told Hanson what had taken place at the April bartenders
meeting. Panitch asked Hanson not to do it.
Hanson testified she thereafter spoke with Hooter Girls Kelli Rochelle, Lena Delroja,
and Panitch about what was said concerning specific Hooter Girls at the early April bartenders 45
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meeting. Hanson and Delroja complained about their names being brought up and Delroja said
she would call Vice President of Human Relations Herrmann.
Hanson testified that about a couple of days after the April bartenders meeting, but still
in early April, she and Rochelle met with General Manager Vidauri at the end of the bar in the 5
restaurant. At the meeting Vidauri talked about Hooter Girl Angie saying; “Angie eats too
many key lime pies after her shift and she needs to go to the gym, rather than laying around
with her boyfriend. And that she’s starting to look really bad in her uniform.” Hanson
testified; “me and Kelli did not respond to Gerardo [Vidauri]. We kind-of just gave him a look
that indicated that we were tired of hearing them talk about our co-workers and turned our back 10
towards him and walked away from the conversation.”
Panitch testified she sent a text message to Regional Manager Peterson about the
bartenders meeting and he immediately telephoned her. Panitch told Peterson all about the
bartender meeting. She said he responded kind-of-like he had heard the story and said he 15
would speak with General Manager Vidauri and Bar Manager Ramirez about it. Hanson
testified Regional Director Peterson, sometime later, telephoned the restaurant and she
happened to answer the phone and she discussed the bartenders meeting with him. Hanson told
Peterson it was unprofessional and she had no one in management she could look up to or take
her complaints to. Peterson told Hanson she could call him anytime and said he had received 20
several complaints about the bartenders meeting.
At about this same time in early April flyers were placed in the employee breakroom
announcing that the Hooters of Ontario bikini contest would be held on April 22. The annual
bikini contest is one of 3 or 4 events drawing large numbers of customers to, and providing 25
publicity for, various Hooter restaurants and the participants.
Panitch testified she had participated in approximately 10 bikini competitions before the
April 22 Ontario contest. Panitch participated in early April in the West Covina and Costa
Mesa, California contests as did Marketing Coordinator Noble. Panitch testified Noble’s best 30
friend, Krystle Lina, served as a judge at both contests. Noble finished in the top three at both
contests. Panitch knew Lina was Noble’s best friend from Nobles social media pages. Panitch
testified that when in the second contest, the Costa Mesa one, Noble received second place, she
(Panitch) telephoned Charging Party Hanson and said, “I told her that Pamela Nobles had got
second place and that her best friend was a judge again.” Panitch also spoke the next day with 35
Hanson about Noble winning and Lina being one of the judges. Hanson suggested Panitch tell
Regional Director Peterson. Panitch thought that was a good idea but told Hanson she felt
uncomfortable doing so because she had already spoken to Peterson about the bartenders
meeting and she “didn’t want it to seem like [she] was complaining all the time.”
40
The bikini contest is divided into two events. First there is a costume portion then a
bikini portion. Cash prizes are awarded with $300 given for first place, $200 for second place,
and $100 for third place. First and second place winners advance to regional and possibly the
national contest where larger prizes are awarded and selections are made for the annual Hooter
Girls calendar. Those pictured in the calendars are given a percentage of the profit from the 45
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calendar sales aside from the cash awards and other prizes and contestants gain exposure for
possible careers in modeling and movies.
The flyer announcing the bikini contest at the Ontario location was provided by
Marketing Coordinator Noble. Hanson testified Noble not only set the date for the contest but 5
announced the theme for the costume portion and provided a sign-up sheet for those wishing to
enter the contest. Hanson testified there was no mention, in the flyer, that after signing up to
participate it was mandatory for those signing to do so. On prior occasions, employees were
allowed to withdraw after signing up and could do so without penalty. Hanson had, in the past,
withdrawn from the contest without penalty.10
Hanson signed up for the contest at the time Noble first posted the contest details.
Hanson testified Marketing Coordinator Noble told her in early April, “that she [Noble] would
not be participating in the contest, because she was putting on the contest. And if she did so,
she was worried that other employees and contestants would think that she was cheating.”15
After Hanson signed up for the contest she and other Hooter Girls received a “hot
message” via their cell phones from Noble on Wednesday, April 3 which reads as follows:
Hey Ladies, If you are not signed up for the contest you WILL be working that 20
night. But to clarify if you have your name on the list and you plan on backing
out cross your name off the list by Friday. If you are signed up for the contest and
do not show up it will be a no call no show by our regional and GM and you
WILL BE TERMINATED. Also you MUST be here by 8:30 p.m. if you are late
you will not be allowed to enter the contest and you will work the floor that night 25
like it was a scheduled shift. Any questions or if I’m not clear let me know.
Marketing Coordinator Noble did in fact participate in the bikini contest. Hanson
testified that by the time she learned Noble would be participating in the contest it was too late
to withdraw without being terminated. Hanson was upset and concerned the contest might be 30
rigged. Hanson explained; “We had known that she was already participating in other contests,
so it just made us not want to do it. Because we had known that [s]he put the whole event
together.”
Hanson’s concerns grew the contest might be rigged when she saw certain pictures 35
posted around April 15, by Noble on the social media site Instagram—an account where those
who join can post and view pictures and related comments. Hanson and Noble followed each
other on Instagram. Hanson saw pictures of Noble, one of which included Krystle Lina,
identified by Noble in the comment section, as her best friend for life. The picture of Noble
and Lina showed Noble winning second place at the Costa Mesa Hooters restaurant. Noble had 40
also introduced Hanson to Linda as her best friend. According to Hanson, Lina served as a
judge at other contest locations. Hanson knew at the time she saw the Instagram picture, Lina
would be one of the judges at Ontario contest.
Hanson testified that before the April 22 bikini contest she and several employees 45
discussed, Marketing Coordinator Noble having her friend serve as one of the judges at other
JD(ATL)–17–14
12
contests at which Noble had won. Hanson spoke about this with Lena Delroja, Kelli Rochelle,
Chanelle Panitch, and Jessy Wiles. Hanson testified Wiles started the conversation by saying
she did not want to participate, “that it was going to be rigged, that we had to participate in
something that we were not being paid for. We had to go purchase things for basically a rigged
competition.” Hanson agreed with Wiles. Hanson explained; “We all agree[d] that we were 5
unhappy about participating in this unpaid competition.” Hanson testified that although she,
Panitch, and Delroja were unhappy having to compete, they were afraid they would be
terminated if they did not and they did not like having to spend money to get ready for
something they were not being paid for.
10
Hanson testified that at a jumpstart meeting before the bikini contest at Ontario, General
Manager Vidauri reminded them “about our mandatory appearance in the competition.”
Hanson expressed her unhappiness about participating in the contest and asked Vidauri; “how
can they force me to participate in something that I wasn’t paid for, when [she] had to go and
spend [her] own money on stuff for the competition and gas to drive down to the competition.” 15
General Manager Vidauri explained he did not make the mandatory decision that it came from
corporate. Hanson also told Vidauri she was concerned the contest was rigged, “just like all the
other one’s were with Pamela [Noble] and her friend judging the contest.” Vidauri “brushed” it
off as corporate’s decision.
20
Hanson testified that in the morning hours 1 or 2 days before the April 22 bikini contest
she answered the telephone at the restaurant and it was Regional Director Peterson calling.
According to Hanson this was the same telephone call from Peterson in which she had told
Peterson about the several complaints she had received concerning the April bartenders
meeting which she thought the meeting was unprofessional. Peterson asked Hanson if she was 25
going to participate in the bikini contest. Hanson said she was but she was not looking forward
to doing so. Peterson asked why. Hanson answered, “because we were forced to do it, we are
not being paid and that it was rigged.” Regional Director Peterson told Hanson he was looking
into the competition being rigged, and added, “I will handle this for you, Alexis.”
30
Panitch testified she spoke to Regional Director Peterson about the relationship between
Nobles and Krystle Lina. Panitch explained she had Peterson’s telephone number from when
she previously called him about the bartenders meeting. Panitch told Peterson she did not think
it was fair that Marketing Coordinator Noble had her best friend judge these competitions.
Peterson told Panitch if she could prove they were friends or best friends he would not allow 35
Lina be a judge in the Ontario bikini competition. Panitch told Peterson she could prove it by
providing him with a screenshot from her cell phone of an Instagram photograph depicting Lina
and Noble together with the caption best friends for life.
Hanson testified Marketing Coordinator Noble sent a “hot schedules message” notifying 40
all contestants they were to be at the restaurant April 22 at 8:30 p.m. although the contest did
not start until 10 p.m. Hanson arrived at around 8 p.m., signed in and proceeded through the
restaurant to a tent set up behind the restaurant for the contestants to change clothing.
Hanson and the other participants dressed in costume for the first portion of the contest. 45
Hanson noticed Marketing Coordinator Noble’s best friend, Krystle Lina, as well as Noble’s
JD(ATL)–17–14
13
boyfriend, were contest judges. Hanson did not recognize any of the other judges. Panitch
observed Lina as a judge and that she “was whispering to the other judges.” Hanson and the
others later participated in the second, or bikini, portion of the contest. Panitch testified that
between the costume and bikini portions of the contest she spoke with Regional Director
Peterson about Lina being one of the judges. Panitch explained, “I asked him if he knew that 5
Krystle Lina was still going to be a judge at our contest, and he said no.” Panitch said Hanson
was also present and asked Peterson if he knew who was going to win. Peterson shook his
head and laughed. Hanson testified that when she and Panitch saw the two were still judges at
the bikini portion of the contest Panitch told Regional Direction Peterson she was unhappy,
“that he had said it would be dealt with and that it wasn’t and then we were still forced to 10
participate in a rigged competition.” Hanson testified Peterson replied, “I know Chanelle.
Know. It’s okay,” and put his arms around her to comfort her.
The contest ended around midnight. The winners were announced with Marketing
Coordinator Noble winning first place and awarded $300 prize money. The three top finishers 15
had their pictures taken near the changing tent. Hanson testified she, Panitch, and Kelli
Rochelle congratulated the second and third place winners. Noble was present also. Hanson
testified she told Noble “Congratulations, Pam, on cheating.” Noble asked “What?” Hanson
did not respond. Hanson testified she did not use any curse words at Noble nor did she threaten
Noble in any manner. Panitch testified Hanson did not raise her voice nor use any curse words 20
that night.
Panitch testified she was upset at the end of the contest, “not at the fact that I didn’t win
but at the fact that we were force[d] to do this contest that was obviously rigged.” When
Panitch saw Marketing Coordinator Noble in the photograph area wearing the first place sash 25
she told Noble; “Thanks for Cheating.” Panitch could not exactly remember what else she said
but it was something to the effect, “you’re a fucking bitch.” Noble told Panitch she could
leave. Hanson testified Marketing Coordinator Noble and Panitch started “yelling at each
other” in back of the restaurant but not around customers. Hanson testified Noble and Panitch
cursed at each other, explaining, “it was a heated exchange between both girls and there were 30
curse words exchanged.” Hanson said she and Kelli Rochelle told Panitch, “this is not the time
or the place for this” and took Panitch inside the restaurant. Panitch acknowledged they may
have told her to stop acting like she was, and acknowledged she went into the restaurant with
Hanson. Hanson proceeded to speak with her (Hanson’s) boyfriend.
35
Hanson testified key employee Wade approached and told Hanson she needed to leave
and “if [she] didn’t leave right now that she would terminate me.” Hanson told Wade she had
not done anything, that the conversation with Market Coordinator Noble that took place
outside, was over and that she and Rochelle were on their way out. Hanson also told Wade she
had no right to threaten to take away her job that she had not done anything.40
Hanson observed key employee Wade then approach Panitch and that a caddy—a
container on each table holding paper towels, ketchup, salt and pepper—flew off the table onto
the floor. Hanson thought Panitch pushed it off the table. Panitch testified Wade approached
saying; “Sweetie, I know you’re upset that you lost, but it’s not worth your job.” Hanson said 45
she moved away from that confrontation because she did not wish anyone to think she had
JD(ATL)–17–14
14
anything to do with it. Hanson next noticed that key employee Wade had her arms around
Panitch who was telling Wade to let go of her. Panitch testified that as she was trying to leave
the restaurant key employee Wade “bear hugged” her and she told Wade to, “Get the fuck off
me.” Panitch may also have said “I know she is your fucking friend but this isn’t right.”
Panitch testified Hanson was speaking with her (Hanson’s) boyfriend at the time then left the 5
restaurant. Panitch denied pushing a chair against Wade.
Hanson and Rochelle left along the side of the restaurant and observed Regional
Director Peterson, General Manager Vidauri, Marketing Coordinator Noble, and Noble’s
boyfriend. Peterson approached Hanson and asked that she not say anything to Noble. Hanson 10
told Peterson, “Scott, I wouldn’t say anything to Pamela. I haven’t said anything to Pamela.
Everything that has gone on tonight was Chanelle, and I apologize for that.” Peterson thanked
Hanson, and she and Rochelle left. Hanson testified that as she and Rochelle were in her car to
leave Peterson approached and they discussed what had happened. Peterson told Hanson,
“Thank you for not reacting the way that Chanelle did.” Hanson told Peterson she would never 15
do that. Peterson again thanked Hanson. Hanson told Peterson the whole thing could have
been avoided. Peterson acknowledged; “I know. It’s probably my fault.” Hanson and
Rochelle drove away.
Hanson specifically stated she was not escorted off Hooters’ property by security after 20
the bikini contest and never saw security interact with Panitch. Hanson said that as she left
Hooters’ parking lot she saw Noble 10 to 15 feet away but they never spoke.
Panitch testified she walked, unescorted, from the restaurant, and, as she walked toward
her car she observed Marketing Coordinator Noble near Noble’s car, which she had to pass 25
getting to her car. Panitch yelled to Noble that she did not deserve to win; she was a cheater;
and, “I called her a cunt” and “was basically yelling out profanities to her.” Panitch was about
10 feet from Noble and Regional Director Peterson, Bar Manager Ramirez, and Former
Manager Jackie. Panitch told Bar Manager Ramirez; “I know that’s your friend, but what she
did wasn’t right.” Panitch testified; “Jackie and Kelli Rochelle were just basically telling me to 30
calm down and not to say anything.” Panitch testified Hanson was not in the area at that time
nor when Panitch drove away. Panitch testified she was not escorted to her car nor did she see
or know if police came to the restaurant that evening. Panitch said she did, about 5 minutes
after she left, receive a telephone call from Hanson checking on her. Panitch guessed Peterson
was near Hanson when Hanson placed the call because she could hear Peterson in the 35
background asking if Panitch wanted to be followed home.
Hanson was scheduled to work the next day, April 23, however, General Manager
Vidauri telephoned telling her not to bother coming to work she was suspended for what had
happened the night before. Hanson asked Vidauri; “okay, well, what happened? I didn’t do 40
anything. I had nothing to do with that.” Hanson testified Vidauri again stated they were
investigating it and would get back with her in 2 or 3 days. Hanson asked if her job was at risk.
Vidauri said it was.
Hanson received a telephone call, on or about April 26, from Vice President of Human 45
Resources Herrmann who told Hanson, “I just want to let you know you are being discharged.”
JD(ATL)–17–14
15
Hanson asked for what. Herrmann replied, “For cursing at Pamela Noble the night of the bikini
contest.” Hanson told Herrmann she never cursed Noble that night. Herrmann acted surprised
and stated, “Oh, you didn’t?” Hanson testified Herrmann then replied, “Okay. Well, then you
are being terminated for your negative social media posts.” Herrmann asked if Hanson had
anything to say. Hanson said she had been a good employee for Hooters and didn’t understand 5
why she was being discharged for something like this without even hearing her side of the
story. Hanson reminded Herrmann she had worked for Hooters for 2 years and didn’t deserve
to be fired. Herrmann told Hanson, “I know, Alexis. You were always a good employee” and
you are “eligible for rehire” later on.
10
On April 26, Vice President of Human Resources Herrmann notified Hanson in writing
of her termination. The notification reads, in part, as follows:
On April 22, 2013 after the Ontario Swim Suit Competition you got into a verbal
altercation with other employees, as well as posting disparaging comments about 15
coworkers and managers on Social Media. This behavior violated the following
provisions of the “Discipline” section of the Hooters employee handbook (page
36):
ï‚· Acts of violence, threats of violence, dishonesty toward guest or fellow 20
employees of Hooters.
ï‚· Insubordination to a manager or lack of respect and cooperation with
fellow employees or guest.
ï‚· Any off-duty conduct which negatively affects, or would tend to
negatively affect, the employee’s ability to perform his or her job, the 25
Company’s reputation, or the smooth operation, goodwill or profitability
of the Company’s business.
ï‚· Any other action or activity which Hooters reasonably believes represents
a threat to the smooth operation, goodwill, or profitability of the business.
30
At this time we are releasing you from employment. Your final check is enclosed
and includes all monies due you at this time for termination.
____________________________ ___________________________
Alexis Hansen Date35
/s/Amber Herrmann 4/26/13
_____________________________ ____________________________
Amber Herrmann Date40
Panitch was notified on April 23, she was suspended and approximately 5 or so days
later received a telephone call from Vice President of Human Resources Herrmann. Herrmann
told Panitch she was going to fire her, but she would hear her side of the story. Panitch, “told
her everything from the bar meeting to the bikini contest.” Panitch filed a charge with the 45
JD(ATL)–17–14
16
Board regarding her discharge. The Board dismissed her charge. Panitch did not appeal the
Board’s dismissal.
2. The Company’s evidence
5
General Manager Vidauri conducted a meeting in April with bartenders at the Ontario
restaurant where he made comments about certain Hooter Girls not at the meeting. Thereafter
Regional Director Peterson informed Vidauri there had been complaints about Vidauri’s
comments and he and Vice President of Human Resources Herrmann were conducting an
investigation. Vidauri testified Peterson told him the complaints came from Hooter Girls and 10
concerned bad things Vidauri had said about them. After the investigation Vidauri was given a
written disciplinary action, and, Vice President of Human Resources Herrmann told him his
conduct could not be tolerated and if it reoccurred he could be further disciplined or terminated.
On direct-examination Vidauri testified, neither Panitch or Hanson ever spoke with him about
the comments he made at the bartenders meeting; however, on cross-examination he said he 15
could not recall if he, on the day of the bartender’s meeting, talked with Hanson about the
meeting.
Regional Director Peterson received a telephone complaint from Hooters Girl Kelli
Rochelle telling him she had been called a “diva” at the bartenders meeting at which General 20
Manager Vidauri and Bar Manager Ramirez were present. Peterson told Rochelle he would
take care of it and informed Vice President of Human Resources Herrmann. Peterson obtained
documents regarding proper behavior for managers and how they would communicate with
employees. Peterson visited the Ontario restaurant and gave both General Manager Vidauri
and Bar Manager Ramirez verbal and written discipline. According to Peterson no other 25
employees raised concerns with him about the bartenders meeting.
Although Peterson learned of comments made at the bartenders meeting from others he
did not recall a telephone conversation with Hanson taking place anytime in which Hanson said
the conduct at the bartender meeting was unprofessional.30
Marketing Coordinator Noble performed “every last detail” setting up the bikini contest
of April 22, at the Ontario store. Noble explained it included decorating the restaurant, finding
a DJ, a photographer and obtaining celebrity and table judges. Noble worked as marketing
coordinator the night of the contest; but, not as a key employee. Noble observed Hanson and 35
Panitch that night but not much until after the first round of the contest because she was inside
the restaurant ensuring everything for the contest was getting done. Noble testified that
between the costume and bikini portions of the contest she heard Hanson and Panitch say it was
unfair that Noble was cheating.
40
Marketing Coordinator Noble placed first overall in the contest and proceeded to the
back lot for pictures with the second and third place winners. Noble testified Panitch and
Hanson approached saying “Did it feel good to place first when you cheated? Noble told them,
“I don’t know why either of you guys are acting like this when I’ve been there for both of you.”
Noble said, “And that’s when the ruckus kind of started.” Noble testified Panitch and Hanson, 45
“started coming after me saying I haven’t been there for either of them and I’m a bitch . . .
JD(ATL)–17–14
17
among other obscenities.” Noble was upset and intimidated. She said other contestants were in
the area as well as the photographer. Noble denied using any obscenities toward Panitch or
Hanson. Noble testified Regional Director Peterson and Corporate Representative Rachel
Maas said to Hanson and Panitch, “they needed to stop, and it was stopping.” Peterson and
Maas directed Hanson and Panitch away from the photograph area, and Hanson and Panitch 5
went into the restaurant. Noble never heard Hanson try to clam Panitch down. Noble said she
had no further interaction with Hanson and Panitch until later in the restaurant parking lot near
her car when “Chanelle [Panitch] and Alexis [Hanson] both came out of the building yelling
more obscenities at me when security got in their way and basically pulled them away.” Noble
said when Panitch and Hanson started their obscenities they were “at least a hundred feet 10
away.” Noble testified she did not respond but stated Hanson called her a “bitch” and “cunt”
and that she “cheated.” Noble said she was intimidated and frightened and that employee
Karen took her back to the restaurant and she never saw Panitch and Hanson again that
evening. Noble said a police officer later came in the restaurant and asked if she was okay and
she told him, “Fine, I guess.”15
Alicia Strohman (Alicia Wade)3 worked as a “key employee” the night of the bikini
contest. Wade’s first interaction that evening with Charging Party Hanson concerned an issue,
which was resolved, that related to where Hanson’s boyfriend would be seated. Wade
thereafter observed Panitch and Hanson, near the wait station, during the intermission between 20
the first and second round of the contest. Wade testified Panitch said, “This shit is rigged and
it’s fucking bullshit” and that Panitch and Hanson went into the restroom. As they left the
restroom Panitch pushed a dish rack onto the floor.
Wade distributed “goodie [gift] bags” after the bikini contest in the photo area where 25
she observed Panitch, Rochelle, and Hanson, off to the side, talking. Wade heard Hanson ask
Marketing Coordinator Noble, “Pam, do you feel good that you cheated? Do you feel good that
you won first place because you cheated?” Wade testified Panitch started yelling at Noble,
calling her a “bitch” and invading her personal space. Wade left to find General Manager
Vidauri. When Wade returned she said Regional Director Peterson was putting his arms out to 30
create space between Panitch, Hanson, and Noble saying this had to stop. Wade testified
Panitch told her “Fuck this shit. No, I don’t want a goodie bag” but Hanson took one. Panitch
and Hanson then went into the restaurant. Wade continued to hand out “goodie bags” but
Regional Director Peterson asked her to go inside the restaurant “and speak to the girls and ask
them to remain calm.”35
Wade first spoke with Hanson saying Regional Director Peterson had asked her to tell
them to calm down. According to Wade, Hanson asked why she was not talking to Panitch.
Wade said she would speak with Panitch and told Hanson it wasn’t worth losing her job over.
Wade testified Hanson told her, “they can’t touch her, they can’t fire her, that she didn’t do 40
anything wrong.” Wade said restaurant guests, including Hanson’s boyfriend, were in the area.
Wade testified that Panitch “came over and started yelling in my ear, saying . . . I know
that she’s your fucking friend, but fuck that bitch. It was rigged. This is fucking bullshit.”

3 During the events here Ms. Strohman was known as Ms Wade. I have, for ease of understanding,
referred to her here as Ms. Wade.
JD(ATL)–17–14
18
Wade asked Panitch to calm down. Panitch slid a chair toward Wade. Wade testified she then
went toward Panitch to usher her out of the building. Wade said Panitch pushed her back and
she (Wade) “grabbed her, like wrapped my arms around her and started pushing her toward the
exit of the building.” Wade said Panitch left the restaurant with Hanson behind her. Wade
reported the events to Regional Director Peterson and General Manager Vidauri. Wade told 5
them she would not be comfortable working with Panitch and Hanson. General Manager
Vidauri escorted Wade to her car and she left. Wade never heard Hanson use curse words that
evening nor, curse at Noble, and, she never reported such to management. Wade did tell
management Panitch yelled expletives at Noble.
10
The April 22 bikini contest at the Ontario location was the first such contest General
Manager Vidauri ever worked. He testified that prior to the bikini contest neither Panitch nor
Hanson spoke with him about the contest being rigged or fixed, but that about 60 percent of the
staff did complain or mention their concerns to him. Vidauri determined the complaints lacked
validity. Vidauri testified neither Panitch nor Hanson talked to him, on the day of the contest, 15
about it being rigged.
Vidauri testified he told the Hooter Girls at a jumpstart meeting there would not be any
cheating at his store and he did not want to hear anymore about it. Vidauri, however, said he
repeated this at jumpstarts every day for 2 weeks and he was sure Hanson was present for at 20
least one such meeting. Vidauri said complaints persisted. Vidauri said he selected the
celebrity judges.
General Manger Vidauri testified neither Hanson nor Panitch talked with him on the
day of the contest about not participating in the contest.25
After the bikini contest ended, General Manager Vidauri retrieved “goodie bags” from
Marketing Coordinator Noble’s car for distribution. When he approached the area of the
changing tent he noticed Panitch and Hanson waving their hands and talking to Noble. Vidauri
testified he heard Panitch call Noble “a fucking bitch” but did not hear what Hanson may have 30
said because, “he was too far away to hear that.” Vidauri, however, never at any time the entire
evening of the bikini contest, heard Hanson use any curse words. Vidauri heard Regional
Director Peterson tell Panitch and Hanson to calm down. According to Vidauri, Panitch was
saying, “this fucking bullshit . . . she cheated” and words of that nature. Vidauri said Peterson,
Panitch, and Hanson walked rapidly to the back entrance to the restaurant. Peterson told key 35
employee Wade to go inside the restaurant and talk to Panitch and Hanson about cooling off.
Vidauri thereafter was called into the restaurant and from about 20 feet away he heard
Panitch screaming and yelling as she was being escorted by security out of the front door. He
testified Panitch was “saying the same thing,” “she cheated,” “she’s a fucking, I don’t know . . . 40
that kind of stuff.” Vidauri testified Hanson was about 3 feet behind Panitch not saying or
doing anything. General Manager Vidauri said he, at one point, got next to Panitch and Hanson
and told them they needed to stop. Panitch told Vidauri, “she’s a fucking bitch, she cheated.”
Vidauri told Panitch if she did not stop he was going to call the police. Vidauri testified when
he went to Hanson she asked him how he felt about letting someone win that cheated. Vidauri 45
told her she needed to leave. Vidauri testified Hanson said, “I didn’t do nothing wrong, and
JD(ATL)–17–14
19
there’s nothing you can do about it.” Vidauri again stated if they did not leave he would call
the police.
Vidauri thereafter did call the police. Vidauri also checked on Noble who he described
as upset and crying. Vidauri told Noble to calm down that everything would be okay. Vidauri 5
then escorted key employee Wade to her car. Wade asked why this all happened and stated she
wanted to go home, and, did not wish to return to work the next day if “these girls” are going to
be there.
General Manager Vidauri and Regional Director Peterson decided to inform Vice 10
President of Human Resource Herrmann about the contest and did so at around 12:30 a.m. that
evening. Vidauri said he contacted Herrmann because, “It was bigger than in my genre with
what was going to happen with the whole situation” and “the police” had arrived. Vidauri
briefly explained to Herrmann what had happened. Herrmann instructed Vidauri to ensure
everyone got home safely and they would talk about the situation the next day. Vidauri then 15
spoke with a responding police officer telling him, “everything was good, everybody left, he
said okay.”
The next day, April 23, Vice President of Human Resources Herrmann asked General
Manager Vidauri to prepare a statement of what happened and make sure statements were taken 20
from all managers and employees regarding the situation. Vidauri asked Herrmann, “What we
were going to do with the situation?” Herrmann wanted to determine what happened. Vidauri
told her he did not feel safe having Panitch and Hanson working at the restaurant. Statements
were taken and forwarded to Herrmann. Herrmann thereafter notified General Manager
Vidauri she had decided to fire both Panitch and Hanson.25
Regional Director Peterson testified he was present at the Ontario restaurant for the
bikini contest to make sure things ran smoothly. Peterson could not recall any employee
talking with him about the swimsuit competition or judging prior to the actual day of the
contest. Peterson explained right before the contest started Charging Party Hanson had a brief 30
and “very polite” conversation with him concerning the judges for the contest. Peterson
testified that Hanson told him Marketing Coordinator Noble had a friend as a judge which she
thought was unfair. Peterson said Panitch also expressed her concerns in a cordial and calm
manner as well. Peterson told Panitch and Hanson he would review the judging to see if he felt
it was somehow inappropriate. Peterson testified the contest went well and nothing occurred 35
that raised concerns for him as regional director. Immediately after the competition and the
winners had been announced, Peterson followed the winners to the photo shoot area to keep
customers from getting into the area. At that time Peterson heard behind him “some
screaming” and “you fucking cunt, you fucking bitch, you fucking cheat.” Peterson saw
Panitch within inches of Marketing Coordinator Noble’s face verbally bashing her. Peterson 40
attempted to come between the two. Peterson did not know where Hanson was nor did he hear
her say anything. Peterson specifically testified he did not hear Hanson curse at Noble nor did
he witness any misconduct by Hanson at anytime the entire night of the bikini contest.
Peterson asked Panitch to leave the area and she went into the restaurant. Peterson asked key
employee Wade to go inside and see if everything was okay.45
JD(ATL)–17–14
20
Peterson testified that a couple of minutes later he heard “yelling and screaming” and
observed Panitch heading toward the changing tent behind the restaurant. Peterson approached
Panitch and told her she had to get her car and leave. Peterson said Hanson “came over” to
where he and Panitch were. Peterson could not recall Hanson saying anything, but Panitch was
still calling Noble a “fucking cheat,” “fucking cunt,” and asking how it felt to win “by fucking 5
cheating.” Peterson said Hanson “was calm in talking to me.” Peterson said he walked Panitch
and Hanson to a car and they left the area. Peterson then went inside the restaurant to find out
what happened. General Manager Vidauri told Peterson that Panitch threw a chair at key
employee Wade. Wade said she wasn’t going to put up with this and was going to quit.
Peterson testified General Manager Vidauri told him Hanson was “instigating the situation 10
getting everything worked up” and Panitch was just acting out what Hanson was saying.
Michael Gill, currently assistant manager at Hooters Restaurant in Costa Mesa,
California, was on April 22, the owner of a two-person security company providing security for
the Ontario bikini contest. Gill said he and his security helper, Robert Hatcher, kept the peace 15
ensuring no customers approached the stage or messed with the Hooter Girls competing in the
contest. More specifically Gill guided the contestants to and from the changing tent that was
behind the restaurant. Gill also assisted each contestant on to, and off from, the stage or from
“where they walk the catwalk.” No security concerns were reported to Gill during the
competition. Gill thereafter stationed himself outback where the photographer was and near the 20
changing tent. Gill saw two females come into that area and heard the two say; “fuck you,
bitch, you fucked the judges, I thought we were friends. . . .” Gill said both were talking but he
did not know who said exactly what. Gill stated Regional Director Peterson started talking to
the two and escorted them to the middle of the parking lot. Gill later asked Peterson who the
two were for his report. Gill also talked with General Manager Vidauri about what had 25
happened. Gill could not say which of the two, that he later learned were Panitch and Hanson,
used the curse words he heard. Specifically, Gill could not say Hanson spoke any of the curse
words.
Vice President of Human Resources Herrmann learned of the April 22 bikini contest 30
incident in a text message from General Manager Vidauri on April 23. Herrmann telephoned
Vidauri who instructed her Marketing Coordinator Noble had won the bikini contest and that
Hooter Girls Panitch and Hanson had gotten into a verbal altercation with Noble and local
police had been called and the two Hooter Girls had been escorted out of the building.
Herrmann instructed General Manager Vidauri to suspend Panitch and Hanson and conduct an 35
investigation.
Herrmann telephoned Regional Director Peterson who told her “the contest had been a
mess.” Herrmann told Peterson she had already instructed General Manager Vidauri to
suspend the two Hooter Girls pending an investigation of the incident.40
Herrmann went to the Ontario location on April 24, and spoke with Marketing
Coordinator Noble whom she observed to still be upset. Noble told Herrmann both Panitch and
Hanson accused her of cheating in winning the swimsuit contest and she did not want to work
again with either of them. Herrmann testified General Manager Vidauri also told her he did not 45
feel he could continue to work with Panitch and Hanson. Herrmann reviewed all statements
JD(ATL)–17–14
21
gathered in the investigation and determined to discharge Panitch. Herrmann telephoned
Panitch informing her she was terminated. Herrmann asked Panitch why she acted the way she
did. Panitch told her they all felt Noble had rigged the contest with her best friend as a judge.
Herrmann said Panitch identified “all” as she and Hanson. Herrmann told Panitch “you and
Alexis [Hanson] went and verbally attacked Pamela [Noble].” According to Herrmann, Panitch 5
replied, “Well, of course we did. We were pissed off and somebody needed to do it.”
Herrmann then telephoned Hanson whom, she was 80 percent sure, she would
terminate. Hanson told Herrmann the contest was rigged, unfair, and she hadn’t wanted to
participate. Herrmann told Hanson there was a right way and a wrong way for them to have 10
responded and told Hanson they had cursed Noble. Hanson denied cursing. Herrmann told
Hanson she had “multiple witness statements that said [she] did curse.” Herrmann testified
Hanson replied; ‘Well, I may have, but I’m not the one that got physical. Chanelle was the one
that got physical.” Herrmann told Hanson she was discharged.
15
Herrmann testified, on direct examination, she based Hanson’s termination on Hanson’s
cursing, that two of her coworkers and her manager did not feel comfortable continuing to work
with her, and, on social tweets she had posted. On cross-examination, Herrmann
acknowledged she had said elsewhere, under oath, she did not rely on Hanson’s social tweets in
firing her. Herrmann was uncertain exactly what curse words Hanson had used but she 20
believed Hanson had used the words “fuck” and “bitch.” On cross-examination Herrmann said
neither Marketing Coordinator Noble nor key employee Wade specifically told her Hanson
used the word “fuck” but did say she used the word “bitch.” Herrmann concluded the curse
words Hanson used, whatever those words were, was enough, standing alone, to discharge
Hanson and she did so. Herrmann specifically acknowledged on cross-examination, the only 25
reason she decided to terminate Hanson was “her cursing at a co-worker . . . in front of guest.”
B. Legal Principles, Credibility Determinations, Analysis, Discussion
and Conclusions
30
1. Legal principles
It is helpful to review certain guidance of the Board and courts regarding concerted
activity to include, under what circumstances, it will or will not be protected under the Act.
Section 7 of the Act guarantees employees the right to engage in concerted activity for the 35
purpose of collective bargaining or other mutual aid or protection. Section 8(a)(1) of the Act
makes it an unfair labor practice “for an employer to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7.” For an employee’s activity to
be “concerted” the employee must be engaged with or on the authority of other employees and
not solely on behalf of the employee him/herself. Meyers Industries (Myers I), 268 NLRB 493 40
(1984), and Meyers Industries (Meyers II), 281 NLRB 882 (1986). The statute requires the
activities under consideration be “concerted” before they can be “protected.” Bethany Medical
Center, 328 NLRB 1094, 1101 (1999). As the Board observed in Meyers I “Indeed, Section 7
does not use the term ‘protected concerted activities’ but only concerted activity.” It goes,
without saying, the Act does not protect all concerted activity. In Meyers Industries (Meyers 45
II), 281 NLRB 882 (1986), enfd. sub. nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), the
JD(ATL)–17–14
22
Board made it clear that under the proper circumstances a single employee could engage in
concerted activity within the meaning of Section 7 of the Act. The question of whether an
employee has engaged in concerted activity is a factual one based on the totality of the record
evidence. See, e.g., EWinc v. NLRB, 861 F.2d 353 (2d Cir.1988). The Board has found an
individual employee’s activities to be concerted when they grew out of prior group activity. 5
Every Women’s Place, 282 NLRB 413 (1986). An employee’s activity will be concerted when
he or she acts formally or informally on behalf of the group. Oakes Machine Corp., 288 NLRB
456 (1988). Concerted activity has been found where an individual solicits other employees to
engage in concerted or group action even where such solicitations are rejected. El Gran
Combo, 284 NLRB 1115 (1987), enfd. 853 F.2d 996 (1st Cir. 1988). It is clear the Act protects 10
discussions between two or more employees concerning terms and conditions of employment.
In a group meeting context, a concerted objective may be inferred from the circumstances.
Whittaker Corp., 289 NLRB 933, 934 (1988), citing Jeannette Corp. v. NLRB, 532 F.2d 916,
919 (3d Cir. 1976). The Board has long held, however, that for conversations between
employees to be found protected concerted activity, they must look toward group activity and 15
mere griping is not protected. See Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d
Cir. 1964). Once the activity is found to be protected concerted activity an 8(a)(1) violation
will be found if, in addition, the employer knew of the concerted nature of the employee’s
activity, the concerted activity was protected by the Act and the adverse employment action at
issue (e.g., discharge) was motivated by the employee’s protected concerted activity.20
If an employee is discharged for alleged misconduct in the course of engaging in
protected activity the applicable standard for determining whether the discharge was unlawful
is that set forth in NLRB v. Burnup & Sims, 379 U.S. 21 (1964). The Court explained:
25
[Section] 8(a)(1) [of the Act] is violated if it shown that the discharged employee
was at the time engaged in protected activity, that the employer knew it was such,
that the basis of the discharge was an alleged act of misconduct in the course of
that activity, and that the employee was not, in fact guilty of that misconduct.
30
The employer then has the burden of showing it held an honest belief that the
discharged employee engaged in the misconduct. If the employer meets its burden, the burden
shifts to the government to show the employee did not, in fact, engage in this asserted
misconduct. If the government meets its burden that the employee did not engage in the
asserted misconduct the discharge violates Section 8(a)(1) of the Act. See Roadway Express, 35
Inc., 355 NLRB 197, 204, 215 (2010), enfd. 427 Fed.Appx. 838 (11th Cir. 2011).
2. Credibility resolutions
It is necessary to review the testimony and make certain credibility resolutions. In 40
deciding whether employees, Hanson in particular, engaged in concerted activity prior to the
bikini contest as well as on the day of the contest (April 22); and, if so, was it protected
conduct, requires credibility determinations.
In making my credibility resolutions I was impacted by impressions I formed while 45
watching the witnesses as they testified. The impressions I gather were based on a combination
JD(ATL)–17–14
23
of the witnesses’ mannerisms, how they spoke, and their overall bearing on the witness stand. I
applied my observations as one, among other factors, in deciding whether witnesses’
testimonies impressed me as candid, fair, and believable. I note crediting certain testimony will
automatically discredit testimony of other witnesses without having to so state. Although I
have not commented on every bit of testimony, nor resolved every possible credibility conflit, I 5
have considered all the testimony and made necessary credibility resolutions.
It is essential to address the credibility of Charging Party Hanson. Some observations.
Hanson sat on the forward edge of the witness chair, spoke directly to the person questioning
her and responded in a clear, articulate, and calm manner. She appeared moved by a strong and 10
eager desire to testify and to do so truthfully. She never shied away or recoiled from answering
any questions on direct or cross-examinations. Her testimony demonstrated she had observed,
and was directly familiar with, and remembered in detail, the events of her testimony. Simply
stated she knew what she was testifying about and expressed herself in a fair and candid
manner. Hanson’s demeanor was superior.4 I credit her testimony rather than certain opposing 15
witnesses.5
I find it helpful, if not essential, to expound upon my assessment of Panitch’s testimony.
I note, Panitch had filed charges with the Board regarding her own termination, but, the
Board’s Regional office dismissed her case—which dismissal she did not appeal. The outcome 20
of the case here will not impact her dismissed charge with the Board. Panitch had nothing
personally, regarding her discharge, to gain or lose by her testimony. Panitch readily
acknowledged her command of a range of profanities and exercised the opportunity to express
such related to events surrounding her and Hanson’s discharge. Panitch’s demeanor, while
testifying, convinced me she was there to tell the truth whether it cast her in a favorable light or 25
not. I credit her testimony.
3. Discussion, analysis, and conclusions
It is alleged that about April 20, Charging Party Hanson concertedly complained to the 30
Company regarding wages, hours, and working conditions of the Company’s employees by
complaining to Regional Director Peterson about the disparagement of certain of the
Company’s employees, and conditions surrounding an upcoming competition involving the
employees.
35
It is undisputed that in April, General Manager Vidauri, along with Bar Manager
Ramirez, and key employees Noble and Wade conducted a bartenders meeting at which
Panitch, among others, was present. Panitch immediately text messaged Hanson her concerns
about the meeting and they met for lunch later that day to discuss those concerns. Panitch and
Hanson discussed the fact five “Hooter Girls” had derogatory comments made about them by 40
management. Comments were made that one Hooter Girl was getting fat; another was “stupid”

4 Although I have set forth a combination of mannerisms, manner of speaking, and overall bearing that
triggered my inclination to accept Hanson’s testimony as truthful; I however note, courts do not require
fact finders to itemize a witness’ characteristic or mannerisms when making a demeanor-based credibly
resolution. See Bloomington-Normal Seating Co .v. NLRB, 357 F.3d 692, 695 (7th Cir. 2004).
5 I note it is the weight of the credible evidence, not the numerical superiority of witnesses, which is
controlling. See Riley-Beaird, Inc., 259 NLRB 1339, 1367 fn.115 (1982).
JD(ATL)–17–14
24
and “a dumb blond”; another’s singing career was going nowhere; another “scrunched her hair
like a Mexican”; and yet another had an attitude problem and still another was a diva. Hanson
spoke with three coworkers, namely, Rochelle, Delroja, and Panitch, about the comments made
at the bartender’s meeting. Hanson and Delroja complained their names were brought up and
they were not present. Delroja said she would telephone Vice President of Human Relations 5
Herrmann about their complaints. Panitch telephoned Regional Director Peterson and told him
all about the bartender meeting, which Peterson seemed to already know about. Regional
Director Peterson testified he had heard from Hooter Girl Rochelle concerning the meeting and
was told what she had been called at the bartenders meeting. Peterson promised to take care of
the matter. Hanson also spoke with Regional Director Peterson about concerns of 10
unprofessional conduct on the part of managers at the April bartenders meeting.
It is clear from the above Hanson, Panitch, and other Hooter Girls concertedly discussed
what they considered unprofessional comments by managers at the bartenders meeting. Their
concerns directly involved working conditions; namely, a respectful and professional working 15
environment. It is clear management knew of Hanson’s, Panitch’s, and other Hooter Girls
concerns related to the bartenders meeting. Hanson and Panitch both spoke with Regional
Director Peterson about their concerns. General Manager Vidauri acknowledged Regional
Manager Peterson told him there had been complaints from Hooter Girls regarding comments
made at the meeting and specifically comments Vidauri had made about some of the Hooter 20
Girls. Vidauri and Bar Manager Ramirez were disciplined for their comments.
After Panitch observed Marketing Coordinator Noble win, in April, at two other Hooter
restaurant locations with her (Noble’s) best friend Lina as a judge Panitch raised concerns
about that with Hanson. Panitch and Hanson concluded it was unfair to the contestants at 25
Hooters of Ontario for Noble to have her best friend as a judge at contests and then win the
contests. Hanson spoke not only with Panitch but with coworkers Delroja, Rochelle, and Jessy
Wiles about unfairness and possible rigging of the contests. The coworkers were unhappy
about the situation with Wiles complaining “it was going to be rigged” that they “had to
participate in something that we were not being paid for” and had to “purchase things for 30
basically a rigged competition.” These Hooter Girls concluded they did not want to participate
in the contest but were concerned they would be fired if they did not. Hanson raised their
concerns with Regional Director Peterson before the day of the contest at the Hooters of
Ontario. Peterson, in their telephone conversation, asked Hanson if she was participating in the
bikini contest. She told him she was but was not looking forward to it because, “we were 35
forced to do it, we are not being paid and that it was rigged.” Peterson told Hanson he was
looking into the competition being rigged and would handle it.
Panitch also spoke with Regional Director Peterson, before the day of the bikini contest,
that it was unfair for Marketing Coordinator Noble to be in the competitions with her best 40
friend Lina as a judge. Peterson wanted to know if Panitch could prove Lina was Noble’s
friend or best friend, and if so, he would not have her as a judge. Panitch told Peterson she
could send him a screenshot from her cell phone of an Instagram photograph showing Lina
with Noble with a caption that stated they were best friends for life.
45
JD(ATL)–17–14
25
Hanson raised the concerns about fairness in judging the bikini contest at a jumpstart
meeting in April with General Manager Vidauri. Hanson, in the presence of other coworkers
and managers, expressed concern they were being forced to participate in the contest without
being paid and that the contest was rigged just like the other contests Noble had won with her
friend as a judge. General Manager Vidauri explained it was all coming from corporate not 5
him. While Vidauri testified neither Panitch nor Hanson spoke with him about the contest
being rigged or fixed he acknowledged 60 percent of the staff mentioned or raised concerns the
contest was rigged. I specifically do not credit Vidauri’s testimony Hanson never raised the
concerns with him. The concerns persisted. General Manager Vidauri addressed those
concerns everyday for 2 weeks at the jumpstart meetings prior to the work shifts starting. 10
Vidauri was certain Hanson was present at least at one of the jumpstart meetings at which the
concerns about the contest being rigged were discussed. I am fully persuaded Hanson raised
her concerns with Vidauri at a jumpstart meeting.
It is clear from the above that many Hooter girls discussed their concerns with each 15
other concerning the bikini contest being rigged. Specifically Hanson and Panitch discussed
these concerns with various coworkers and the concerns were raised with groups of employees
at jumpstart meetings. Hanson specifically raised such concerns at a jumpstart meeting.
General Manager Vidauri had concerns raised with him from 60 percent of the work force.
Regional Manager Peterson was fully aware many employees had concerns about the contest. 20
This is clearly concerted activity and was activity protected by the Act as well. The concerns
raised by the employees related to wages, hours, and other terms and conditions of
employment. The employees were concerned they were being forced to participate in the
bikini contest without pay and were incurring out-of-pocket expenses for a contest they were
concerned was rigged. Additionally, employees had the potential to win cash as well as other 25
benefits if they could compete fairly at Ontario and the potential to advance to the regional and
national contests. I need not, and do not, address whether the contest was actually rigged, nor,
do I address the fairness or wisdom of allowing Marketing Coordinator Noble to participate in
the contests. I need only conclude employees, including Hanson, thought the contest was
rigged and discussed such among themselves and with management. I need only find it was a 30
concern of the employees involving a working condition and it was discussed among the
employees and raised with management.
I turn next to whether employees, Hanson in particular, engaged in concerted activity
protected by the Act on the evening of the bikini contest at the Ontario location. Hanson and 35
the other bikini contestants were directed by Marketing Coordinator Noble to be at the
restaurant on April 22 at 8:30 p.m., and advised the contest would commence at 10:30 p.m.
Hanson arrived around 8 p.m. and she, Panitch and the other contestants participated in the
costume portion of the contest first. Hanson and Panitch observed that Marketing Coordinator
Noble’s best friend Lina as well as Noble’s boyfriend were contest judges. Panitch observed 40
Lina “whispering” to the other judges. Hanson and Panitch spoke with Regional Director
Peterson between the costume and bikini portions of the contest. Panitch asked Peterson if he
knew Lina was still going to be a judge. Peterson did not. Hanson asked Regional Director
Peterson if he knew who was going to win. Peterson shook his head and laughed. Panitch told
Peterson she was unhappy because Peterson had said he would deal with that matter and had 45
JD(ATL)–17–14
26
not, and, they were still forced to participate in a rigged competition. Peterson told Panitch he
knew, and, it would be okay and comforted her.
After the three winners had been selected and announced, Marketing Coordinator Noble
had won first place. Hanson and Panitch, along with Rochelle, congratulated the second and 5
third place winners. Hanson stated to Noble; “Congratulations, Pam on cheating.” Although
Noble asked what, Hanson did not respond, nor did she curse Noble or raise her voice.
Regional Director Peterson testified he did not hear Hanson use curse words toward Noble nor
did Hanson engage in any misconduct at any time that evening. General Manager Vidauri
never heard Hanson use any curse words that evening. Key employee Wade never heard 10
Hanson use any curse words at all that evening and never told anyone that she heard curse
words by Hanson. Security company owner and current assistant manager, Gill, of Hooters
Restaurant of Costa Mesa, California, heard cursing but could not say if Hanson spoke any
curse words that evening.
15
Hanson and Panitch were continuing their concerted activity, protected by the Act,
concerning wages and working conditions, when they addressed with Regional Director
Peterson, at the contest, their continued concerns about Noble, having her best friend and
boyfriend as judges at the contest.
20
I next outline and discuss the credited comments, events, and actions involving
Charging Party Hanson that took place after the contest ended and until she left the Hooters of
Ontario facility perhaps in the early morning hours of April 23.
Hanson, as set forth elsewhere here, commented to Marketing Coordinator Noble after 25
the bikini portion of the contest, “congratulations, Pam, on cheating” but said nothing else.
Hanson described Panitch and Noble as “yelling at each other” in a “heated exchange between
both girls” and “curse words exchanged.” Hanson and coworker Rochelle told Panitch, “this
was not the time or the place for this” and took Panitch inside the restaurant. Hanson spoke
with her (Hanson’s) boyfriend who was also inside the restaurant. Key employee Wade 30
approached Hanson telling Hanson to leave then or be terminated. Hanson explained to Wade
she had not done anything and the conversation with Noble, outside the restaurant, had ended.
Hanson also told Wade she had no right to threaten to take away her job that she had done
nothing.
35
Hanson observed actions, and overheard an exchange, between key employee Wade and
Panitch where Wade “bear hugged” Panitch attempting to remove Panitch from the restaurant.
Panitch responded cursing at Wade. Hanson moved away from the Panitch–Wade exchange
and actions because she did not wish anyone to think she was involved in those actions and that
exchange.40
Hanson then left the restaurant along with coworker Rochelle. She observed Regional
Director Peterson, General Manager Vidauri, and Market Coordinator Noble as well as Noble’s
boyfriend in the parking lot. Peterson approached Hanson asking that she not say anything to
Noble. Hanson told Peterson she had not and would not say anything to Noble explaining 45
everything that had gone on involved Panitch. Hanson apologized for Panitch’s actions and
JD(ATL)–17–14
27
comments that evening. Peterson thanked Hanson and acknowledged the whole thing could
have been avoided and it was probably his fault. Peterson also acknowledged Hanson was
calm talking with him that entire evening. Hanson thereafter left the premises, unescorted by
security, and never saw security interact with Panitch that evening. Although Hanson observed
Noble as Hanson left the restaurant parking lot they never spoke. I specifically do not credit 5
Marketing Coordinator Noble’s testimony that when she was in the restaurant parking lot after
the contest Hanson and Panitch came out of the restaurant “yelling more obscenities at me
when security got in the way and basically pulled them away.” I note Regional Director
Peterson saw no misconduct by Hanson that night. General Manger Vidauri heard no curse
words from Hanson that evening. Key employee Wade did not hear Hanson use any curse 10
words that evening nor did she ever tell anyone she heard Hanson use curse words that evening.
Security Guard Gill could not say Hanson spoke any of the curse words he heard that evening.
I note Panitch acknowledged that when she left the restaurant, unescorted, she observed
Noble in the parking lot as Panitch passed Noble’s car and yelled profanities at Noble telling 15
her she did not deserve to win, and calling her a “cheater” and a “cunt.” Panitch placed
Regional Director Peterson along with Bar Manager Ramirez in the area but stated Hanson was
not there nor when Panitch drove away.
Hanson was scheduled to work on April 23, but was notified by General Manager 20
Vidauri not to bother coming to work she was suspended for what had happened the night
before. Hanson stated she had not done anything wrong the night before and asked if her job
was at risk. Vidauri told Hanson it was.
On April 26, Vice President of Human Resources Herrmann telephoned Hanson 25
informing her she was being discharged. Hanson asked why and was told “for cursing at
Pamela Noble the night of the bikini contest.”6 When Hanson told Herrmann she never cursed
at Noble, Herrmann then told Hanson she was “being terminated for your negative social media
posts.” I specifically do not credit Herrmann’s testimony that Hanson told her she may have
cursed. I am persuaded Hanson would not have consistently denied cursing or that many 30
Company officials would have acknowledged and stated they never heard her curse and then
admit to Herrmann she may have cursed. Hanson told Herrmann she had been a good
employee for the Company and did not understand why she was being terminated without the
Company ever hearing her side of the story. Herrmann told Hanson she knew she had always
been a good employee and would be eligible for rehire later on.35
Vice President of Human Resources Herrmann also notified Hanson in writing on April
26 that she was terminated for a verbal altercation with employees on April 22 after the Ontario
swim suit competition, as well as posting disparaging comments about coworkers and
managers on Social Media all of which violated certain Employee Handbook rules.7 In her 40

6 Vice President of Human Resources Herrmann acknowledged, on cross-examination, she was uncertain
what curse words Hanson used but stated that whatever words Hanson used were enough, standing alone,
to discharge Hanson and that she did so for that reason. More specifically Herrmann acknowledged, on
cross-examination, the only reason she decided to terminate Hanson was “Hanson’s cursing at a co-
worker . . . in front of guest[s].”
7 On cross-examination Herrmann, however, acknowledged she had stated under oath she did not rely on
Hanson’s social tweets in firing Hanson.
JD(ATL)–17–14
28
letter, Herrmann listed the rules violated as; acts of violence, threats of violence, dishonesty
toward guest[s] or fellow employees of Hooters; insubordination to a manager or lack of
respect and cooperation with fellow employees or guest[s]; off-duty conduct which negatively
affects, or would tend to negatively affect, the employees ability to perform his or her job, the
Company’s reputation, or smooth operation, goodwill or profitability of the Company’s 5
business; and any other action or activity which Hooters reasonably believes represents a threat
to the smooth operation, goodwill, or profitability of the business.
Did the Company violate the Act when it suspended and discharged Hanson? The
evidence establishes the Company did. First, as set forth above, it is clear Hanson engaged in 10
concerted activity protected by the Act. Second, it is just as clear the Company knew of
Hanson’s and others concerted protected activity. Hanson individually spoke with Regional
Director Peterson and General Manager Vidauri about the concerns and Hanson also raised the
concerns at a jumpstart meeting with coworkers and General Manager Vidauri. Vidauri
acknowledged 60 percent of the staff raised concerns about the contest being rigged and he 15
spoke about it every day for 2 weeks but the concerns persisted. Company management knew
its employees concerns were about working conditions and possible additional wages if the
employees could participate in a fair contest. Third, it is clear Hanson complained in a
telephone conversation with Regional Director Peterson about managers’ comments at the
bartender meeting, and about the selection of judges for the bikini contest as well as the fact the 20
outcome of the contest might be rigged. Hanson complained openly at a jumpstart meeting
with other employees that the contest was unfair and might be rigged. The evidence indicates
the Company knew it could rid itself of Panitch8 and simply sought to lump Hanson’s discharge
in the mix and rid itself of both complaining employees. I find it clear Hanson’s discharge was
motivated by her protected concerted activity. Herrmann, in writing, gave several reasons for 25
discharging Hanson; however, at trial she shifted and testified the sole reason for Hanson’s
discharge was that she cursed at Marketing Coordinator Noble. Herrmann was simply looking
for any reason to terminate Hanson. The credited evidence establishes Hanson’s only statement
to Noble was “congratulations, Pam on cheating.” Hanson did not curse at Noble.
30
As noted elsewhere, when the credited evidence establishes, an employer has
discharged an employee for conduct during the course of protected activity, as here, the burden
shifts to the employer to prove it acted with an honest belief the employee engaged in
misconduct. When the employer has established such a good-faith belief, the burden shifts
back to the government and if the government proves the asserted misconduct did not, in fact, 35
occur, the discharge will be found to violate Section 8(a)(1). I am persuaded the Company did
not establish a good-faith belief because many of its witnesses testified Hanson did not curse at
Noble or anyone. A thorough investigation by the Company would have demonstrated such to
the Company. Assuming arguendo, the Company did establish a good-faith honest belief
Hanson engaged in misconduct the government, by credible evidence established the 40
misconduct did not, in fact, occur. In summary, I find the Company violated Section 8(a)(1) of
the Act when it suspended and thereafter discharged its employee Hanson.

8 Panitch, by her admitted actions (cursing and related conduct) afforded the Company an opportunity to
rid itself of an employee that discussed with other employees actions of managers that resulted in two
managers being disciplined.
JD(ATL)–17–14
29
C. The Arbitration Agreement and Related Documents
1. Arbitration agreement
It is admitted Hooters Employee Handbook contains the following “Hooters’ arbitration 5
policy (GC Exh. 18 p. 54) which reads as follows:
Resolution matters, including charges of employment discrimination or
harassment, may only be obtained by requesting arbitration under Hooters
Agreement to Arbitrate. You will be required to sign an Agreement to Arbitrate 10
as a condition of your employment with Hooters.
It is admitted that at all times material here the Company maintained agreement to
arbitrate documents containing the following provisions:
15
This Agreement requires you to arbitrate any legal dispute related to your
application for employment, the application or interview process, your
employment, or the termination of your employment with Hooters of Ontario,
LLC[.]
20
By signing this Agreement you and the Company each agree that all Claims
between you and the Company shall be exclusively decided by arbitration[.]
. . . .
25
As used above, “claims” mean all disputes arising out of or related to your
application for employment, the application and recruitment process, the
interview process, the formation of the employment relationship, your
employment by the Company, or your separation from employment with the
Company. The term “Claims” includes, but is not limited to, any claim whether 30
arising under federal, state, or local law, under a statute such as Title VII of the
Civil Rights Act of 1964, under a rule, under a regulation or under the common
law, including, but not limited ANY (sic) CLAIM OF DISCRIMINATION,
SEXUAL OR OTHER TYPE OF HARASSMENT, RETALIATION,
WRONGFUL DISCHARGE, ANY CLAIM FOR WAGES, COSTS, INTEREST, 35
ATTORNEYS’ FEES OR PENALTIES. “Claim” does not include any dispute
that cannot be arbitrated as a matter of law.
YOU AND THE COMPANY AGREE THAT EACH MAY BRING AND
PURSUE CLAIMS AGAINST THE OTHER ONLY IN YOUR/ITS 40
INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, CLASS MEMBER
OR REPRESENTATIVE IN ANY PURPORTER CLASS, REPRESENTATIVE
OR COLLECTIVE PROCEEDING. YOU AND THE COMPANY
ACKNOWLEDGE AND AGREE THAT AT ALL TIMES YOU HAVE HAD
AN AGREEMENT TO ARBITRATE WITH THE COMPANY AND HAVE 45
UNDERSTOOD THAT THE AGREEMENT WAS AN AGREEMENT TO
JD(ATL)–17–14
30
BRING AND PURSUE CLAIMS AGAINST THE OTHER ONLY IN
YOUR/ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, CLASS
MEMBER OR REPRESENTATIVE IN ANY PURPORTED CLASS,
REPRESENTATIVE OR COLLECTIVE PROCEEDING.
(Emphasis in original.)5
It is admitted that at all times material here the Company maintained an
acknowledgement of arbitration agreement.
It is admitted that at all times material here the Company maintained an 10
acknowledgement of execution of arbitration document, among others, containing the
following provisions:
I have freely and voluntarily agreed to bring and pursue claims only in my
individual capacity and not as a plaintiff, class member or representative in any 15
purported class, representative or collective proceeding.
At all times I have had an agreement to arbitrate with the Company, I have always
understood that the Company and I had agreed to only bring claims against each
other in our individual capacities and that we had freely and voluntarily agreed 20
not to bring or pursue claims in any purported class, representative or collective
proceeding.
It is admitted Charging Party Hanson signed the Company’s arbitration agreement;
agreement to arbitrate, acknowledgement of receipt of arbitration agreement, and, 25
acknowledgement of arbitration agreement on February7, 2011.
2. Brief statement of the parties’ position
The Government asserts the Company’s mandatory agreement to arbitrate, precludes 30
employees from filing joint, class, or collective action claims addressing wages, hours, or other
working conditions in all forums arbitral and judicial and that D. R. Horton, 357 NLRB No.
184 (2012), is controlling here, and pursuant to D. R. Horton Inc., the Company’s arbitration
agreement violates Section 8(a)(1) of the Act.
35
The Company contends its arbitration agreement and related policies are not unlawful
because recent Supreme Court precedent, binding here, compels the conclusion that arbitration
agreements containing class action waivers are enforceable and do not violate the Act.
3. Discussion, analysis, and conclusions40
Simply stated the issue here is whether the Company’s arbitration agreement and related
documents contain restrictive provisions violating Section 8(a)(1) of the Act.
In evaluating whether a rule applied to all employees, as a condition of continued 45
employment, including the mandatory arbitration agreement and related documents at issue
JD(ATL)–17–14
31
here, violates Section 8(a)(1) of the Act, the Board, as noted in D. R. Horton Inc., at pp. 4–6,
applies its test set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), citing U-
Haul Co. of California, 347 NLRB 375, 377 (2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007).
Pursuant to Lutheran Heritage the inquiry, or test to be applied, is whether the rule explicitly
restricts activities protected by Section 7 of the Act. If so, the rule is unlawful. If it does not 5
explicitly restrict protected activity, the finding of a violation is dependent upon a showing of
one of the following: (1) employees would reasonably construe the rule to prohibit Section 7
activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights.
10
The Board concluded in D. R. Horton that as a condition of employment “employers
may not compel employees to waive their NLRA right to collectively pursue litigation of
employment claims in all forums arbitral and judicial.” 357 NLRB No. 184, slip op. at p. 12
(2012). The arbitration agreement here, by its terms, restricts employees, as a condition of their
employment, from acting concertedly by pursuing class arbitral and judicial litigation of 15
employment claims, I find the arbitration agreement here is facially unlawful. The Board
explained in D. R. Horton, Inc., supra at 10 “The right to engage in collective action . . . is the
core substantive right protected by the NLRA and is the foundation on which the Act and
Federal labor policy rest.”
20
Turning now to the Company contention it may not be found to have violated the Act
by maintaining its arbitration agreement and related documents based on recent Supreme Court
precedent, binding here, that compels the conclusion that arbitration agreements’ containing
class action waivers are enforceable and do not violate the Act. The Company notes all Federal
Circuit Courts of Appeals, asked to address this issue, have declined to enforce the D. R. 25
Horton Inc. decision invalidating arbitration agreements containing class waivers and asks I
also reject the Board’s substantive analysis in D. R. Horton, supra.
First, the Company expands its request that I reject the Board’s substantive analysis in
D. R. Horton Inc., supra. Noting that three Federal Circuit Courts of Appeal in, namely, Owen 30
v. Bristol Care Inc., 702 F.3d 1050, 1052–1055 (8th Cir. 2013); Richards v. Ernest & Young,
734 F.3d 871, 873–874 (9th Cir. 2013); and, the direct appeal of D. R. Horton; D. R. Horton v.
NLRB, 737 F.3d 344 (5th Cir. 2013), have reviewed the Board’s D. R. Horton Inc. decision,
and all three have rejected the Board’s substantive analysis. I, however, am bound by Board
precedent unless and until the Supreme Court or the Board directs otherwise. Iowa Beef 35
Packers, Inc., 144 NLRB 615, 616 (9163). Neither has done so thus D. R. Horton Inc. is the
applicable law here that I follow.
Second, the Company urges I reject D. R. Horton Inc., supra, and rely on certain
specific Supreme Court decisions applying the mandate that Federal law, namely the Federal 40
Arbitration Act (FAA), favors arbitration and that class waivers in agreements to arbitrate
executed by employees do not violate the Act. In support of this argument or contention the
Company points, in part, to the Supreme Court’s decisions in AT&T Mobility, LLC v.
Concepcion, 131 S.Ct. 1740 (2011); American Express v. Italian Colors Restaurants, 133 S.Ct.
2304 (2013); and, CompuCredit v. Greenwood, 132 S.Ct. 665 (2012). I address below the three 45
JD(ATL)–17–14
32
above-cited cases and find those cases do not compel that I reject the Board’s D. R. Horton Inc.
decision based on the cited Supreme Court decisions.
The Board in D. R. Horton considered the Supreme Court’s holding in AT&T Mobility
LLC and concluded that decision does not require a conclusion different from its holding in D. 5
R. Horton Inc. Accordingly, I reject the Company’s contention AT&T Mobility LLC controls
and must be applied here. I apply here the Board’s rational as set forth in D. R. Horton Inc. and
explained below:
A policy associated with the FAA and arguable in tension with the policies of the 10
NLRA was explained by the Supreme Court in AT&T Mobility v. Concepcion,
supra at 1748: The “overarching purpose of the FAA . . . is to ensure the
enforcement of arbitration agreements according to their terms so as to facilitate
streamlined proceedings.” The “switch from bilateral to class arbitration,” the
Court stated, “sacrifices the principal advantage of arbitration—its informality.” 15
Id. at 1750. But the weight of this countervailing consideration was considerably
greater in the context of AT&T Mobility than it is here for several reasons. AT&T
Mobility involved the claim that a class-action waiver in an arbitration clause of
any contract of adhesion in the State of California was unconscionable. Here, in
contrast, only agreements between employers and their own employees are at 20
stake. As the Court pointed out in AT&T Mobility, such contracts of adhesion in
the retail and services industries might cover “tens of thousands of potential
claimants.” Id. at 1752. The average number of employees employed by a single
employer, in contrast, is 20 [footnote omitted] and most classwide employment
litigation, like the case at issue here, involves only a specific subset of an25
employer’s employees. A classwide arbitration is thus far less cumbersome and
more akin to an individual arbitration proceeding along each of the dimensions
considered by the Court in AT&T Mobility—speed, cost, informality, and risk—
when the class is so limited in size. 131 S.Ct. at 1751–1752. Moreover, the
holding in this case covers only one type of contract, that between an employer 30
and its covered employees, in contrast to the broad rule adopted by the California
Supreme Court at issue in AT&T Mobility. Accordingly, any intrusion on the
policies underlying the FAA is similarly limited.
Thus, whether we consider the policies underlying the two statutes as part 35
of the balancing test required to determine if a term of a contract is against public
policy and thus properly considered invalid under Section 2 of the FAA, or a part
of the accommodation analysis required by Southern Steamship, Morton, and
other Supreme Court precedent, our conclusion is the same: holding that an
employer violates the NLRA by requiring employees, as a condition of 40
employment, to waive their right to pursue collective legal redress in both judicial
and arbitral forums accommodates the policies underlying both the NLRA and the
FAA to the greatest extent possible.
Next, I turn to the American Express Co. v. Italian Colors Restaurant, supra, a case, 45
which was decided after D. R. Horton, to determine if, as the Company contends, the decision
JD(ATL)–17–14
33
compels a finding that the class waiver in the agreement to arbitrate here does not violate the
Act.
American Express Co. v. Italian Colors Restaurant involved merchants who contracted
with American Express to accept American Express cards at their businesses and in their 5
agreement with American Express agreed to arbitrate disputes arising between the merchant
and American Express and further precluded any claims from being arbitrated as a class action.
The merchants, nevertheless, filed a class action lawsuit against American Express contending
their agreement with American Express violated Federal antitrust statutes. The merchants
contended waiving class arbitration made the agreement with American Express invalid and 10
unenforceable because the cost of individually arbitrating a Federal statutory claim would
exceed any potential recovery. In response to the merchants lawsuit, American Express moved
to enforce the arbitration agreement terms calling for individually arbitrating claims pursuant
to the provisions of the FAA. The Supreme Court rejected the merchants’ position holding
arbitration is a matter of contractual agreement between the parties and that the FAA precludes 15
the courts from invalidating a contractual waiver of class arbitration simply because the cost of
individually arbitrating a Federal statutory claim exceeds any potential recovery.
Next I turn to CompuCredit Corp v. Greenwood, supra, involved actions brought by
consumers against the marketer of credit cards and the Federal Credit Repair Organization Act 20
(CROA), to determine if, as the Company contends, the decision compels a finding that the
waiver here does not violate the Act. The Court held CROA provisions requiring credit repair
organizations disclose to consumers the right to sue over violations of CROA and prohibiting
waiver of that right nonetheless did not preclude enforcement of an arbitration agreement the
parties had also executed. The Supreme Court held the FAA requires that the parties’ 25
arbitration agreement be enforced according to its terms. The court specifically concluded that
even when the claims at issue are Federal statutory claims, the FAA’s mandate cannot be
overridden unless “overridden by a contrary congressional command.”
The two above Supreme Court cases address consumer rights and contract language, 30
and, in my opinion, have absolutely nothing to do with unilaterally imposed arbitration
agreements in the context of employee–employer relationships. The cases do not discuss how,
if at all, the FAA may be applied to alter, by private arbitration agreement, the core substantive
rights protected by the NLRA which are the foundation on which the NLRA and all Federal
labor law rests. It goes without saying the core issue before me, on this portion of the case, is 35
whether the Company may, by private arbitration agreement imposed on its employees, restrict
the right of its employees to engage in concerted or class activities recognized and protected by
Section 7 of the Act. I have elsewhere here concluded the Company cannot lawfully do so and
nothing in the two subsequent Supreme Court decisions compels a different conclusion than I
make.40
The Company further notes that most recently, Board Administrative Law Judge
Keltner W. Locke issued his decision in Haynes Building Services, LLP, JD(ATL)03-014
(February 7, 2014) in which Judge Locke recommended the Board dismiss allegations Haynes
Building Services’ arbitration agreement violated the Act. Judge Locke’s decision is without 45
JD(ATL)–17–14
34
authority here as it is an intermediate decision not yet ruled upon by the Board and may not be
considered as precedent.
In summary, the agreement to arbitrate and related documents clearly inhibits and
interferes with employees’ Section 7 rights in that it requires employees to waive their right to 5
engage in concerted activity for mutual aid and protection by prohibiting class or collective
action in any forum and as such violates Section 8(a)(1) of the Act.
Additionally, I find the language of the Company’s arbitration agreement would
reasonably be read by employees to prohibit the filing of unfair labor practice charges with the 10
Board. Accordingly, I find the policy, for that reason alone, also violates Section 8(a)(1) of the
Act. See U-Haul Co. of California, 347 NLRB 375, 377–378 (2006).
D. Employee Handbook Rules
15
It is admitted that at all times material here the Company has maintained the following
rules in its Employee Handbook and it is alleged it has thereby been interfering with,
restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act
in violation of Section 8(a)(1) of the Act. The rules in issue are:
20
(a) Remember: NEVER discuss tips with other employees or guests.
Employees who do so are subject to discipline up to and including termination.
(b) Insubordination to a manager or lack of respect and cooperation with
fellow employees or guests [might result in discipline up to, and including
immediate termination.]25
(c) Disrespect to our guests including discussing tips, profanity or negative
comments or actions [might result in discipline up to, and including immediate
termination.]
(d) The unauthorized dispersal of sensitive Company operating materials or
information to any unauthorized person or party [might result in discipline up to, 30
and including immediate termination.] This includes, but is not limited to,
recipes, policies, procedures, financial information, manuals or any other
information in part or in whole as contained in any Company records.
(e) Any other action or activity which Hooters reasonably believes represents
a threat to the smooth operation, goodwill or profitability of its business [might 35
result in discipline up to, and including immediate termination.]
(f) Any off-duty conduct which negatively affects, or would tend to
negatively affect, the employee’s ability to perform his or her job, the Company’s
reputation, or the smooth operation, goodwill or profitability of the Company’s
business [might result in discipline up to, and including immediate termination.]40
(g) Employees shall not discuss the Company’s business or legal affairs with
anyone outside of the Company. Information concerning claims or lawsuits
brought by the Company or against the Company shall be treated as confidential.
Employees shall not discuss matters related in any way to litigation or claims.
Any employee who violates this rule shall be subject to discipline up to and 45
including termination of employment.
JD(ATL)–17–14
35
(h) Information published on your social networking sites should comply with
the company’s confidentiality and disclosure of proprietary information policies.
This also applies to comments posted on other blogs, forums, and social
networking sites.
(i) Be respectful to the Company, other employees, customers, partners, and 5
competitors. Refrain from posting offensive language or pictures that can be
viewed by co-workers and clients. Refrain from posting negative comments
about Hooters or co-workers. In all cases, NEVER publish any information
regarding a co-worker or customer.
10
I address each of the above rules in the same order as set forth above.
First, in determining whether the maintenance of a work rule violates Section 8(a)(1) of
the Act the Board analyzes the rule according to the following framework set forth in Crowne
Plaza Hotel, 352 NLRB 382, 383 (2008), quoting from Lutheran Heritage Village-Livonia, 15
343 NLRB 646 (2004).
[A]n 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). In determining whether a 20
challenged rule is unlawful, the Board must, however, give the rule a reasonable
reading. It must refrain from reading particular phrases in isolation, and it must
not presume improper interference with employee rights. Id at 825, 827.
Consistent with the foregoing, our inquiry into whether the maintenance of a
challenged rule is unlawful begins with the issue of whether the rule explicitly25
restricts activities protected by Section 7. If it does, we will find the rule
unlawful.
If the rule does not explicitly restrict activity protected by Section 7, the violation
is dependent upon a showing of one of the following: (1) employees would 30
reasonably construe the language to prohibit Section 7 activity; (2) the rule was
promulgated in response to union activity; or (3) the rule has been applied to
restrict the exercise of Section 7 rights. Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004). Where a rule is ambiguous regarding its application to
Section 7 activity and no examples or violative conduct or limitation language is 35
set forth that would clarify to employees the rule does not restrict Section 7 rights
such a rule is unlawful under the Act.
The Board noted in Flex Frac Logestics, LLC, 358 NLRB No. 127, slip op. at p. 2
(2012):40
Board law is settled that ambiguous employer rules—rules that
reasonably could be read to have a coercive meaning—are
construed against the employer. This principle follows from the
Act’s goal of preventing employees from being chilled in the 45
exercise of their Section 7 rights—whether or not that is the intent
JD(ATL)–17–14
36
of the employer—instead of waiting until that chill is manifest,
when the Board must undertake the difficult task of dispelling it.
1. Discussing tips
5
The Company’s policy forbidding employees from discussing tips with each other
explicitly restricts activities protected by Section 7 of the Act and thereby violates Section
8(a)(1) of the Act. Discussing tips between employees is essentially discussing wages. See,
e.g., Wynn Las Vegas, LLC, 358 NLRB No. 80, slip op. at p. 3 (2012). Nothing is more basic
“terms and conditions” of employment than wages. Parexel International, LLC, 356 NLRB 10
No 82, slip op. at p. 3 (2011). The portion of this rule that forbids employees from discussing
tips with guests is unlawfully over broad. The rule precludes employees from exercising their
right to discuss their terms and conditions of employment, such as wages, with nonemployees.
See generally Mastec Advanced Technologies, 357 NLRB No. 17 (2011).
15
2. Insubordination by employees
The Company’s insubordination rule is impermissible. In University Medical Center,
335 NLRB 1318, 1322 (2001), the Board prohibited a rule, applying the Lafayette standard, in
an employee handbook prohibiting “insubordination, refusing to follow directions, obey 20
legitimate requests or orders, or other disrespectful condition towards a service integrator,
service coordinator, or other individual.” Id. The Board held the rule was overly broad
because it prohibited all disrespectful conduct towards others and “[d]efining due respect, in
the context of a union activity, seems inherently subjective.” Id. Further, potential employee
advocates could reasonably surmise that members of their target audience would screen them 25
from expressing views not welcomed or agreed with. Id. at 1323. Thus, the rule would have a
chilling effect on employees in the exercise of their Section 7 rights. Similarly, here, the
Company’s rule prohibiting ‘insubordination to a manager or lack of respect and cooperation
with fellow employees or guest [might result in discipline up to, and including immediate
termination]” is as broad as the “disrespectful conduct” clause in Community Hospitals of 30
Central California in that it does not go on to define what “insubordination,” “lack of respect,”
or “cooperation” means and thus are subjective. These broad terms could have the same
chilling effect the Board was concerned with in Community Hospitals. There is also no
limiting language here like in Lafayette, which held permissible the rule “[b]eing
uncooperative with supervisors, employees, guest[s] and/or regulatory agencies or otherwise 35
engaging in conduct that does not support the Lafayette Park Hotel’s goals and objectives.”
The rule limited the conduct as to the company’s “goals and objectives.” And thus was
permissible. There are no such limiting terms here, thus the rule is unlawful.
3. Disrespect to guests40
This rule on disrespect is unlawfully over broad and unqualified.9 The prohibitions
against “profanity or negative comments or actions” are also over broad in that no examples or
clarifications are provided. The rule reasonably tends to chill employee exercise of Section 7

9 The portion of the rule concerning not discussing tips with customers has been addressed above in
“Discussing Tips” and will not be restated here.
JD(ATL)–17–14
37
rights and violates Section 8(a)(1) of the Act. See Claremont Resort & Spa, 344 NLRB No.
105, at slip op. at p. 836 (2005), citing Lafayette Park Hotel, supra.
4. Unauthorized dispersal of sensitive company materials
5
This nondisclosure or nondispersal rule is unlawfully overbroad because employees
would reasonably believe they are prohibited from discussing wages or other terms and
conditions of employment with nonemployees, such as, for example, union representatives—an
activity clearly protected by Section 7 of the Act. See Flex Frac Logistics, LLC, 358 NLRB
No. 127 (2012), citing Hyundai American Shipping Agency Inc., 357 NLRB No. 80, slip op. at 10
12 (2011) (finding rule unlawful that prohibited “[a]ny unauthorized disclosure from an
employee’s personnel file”); IRIS U.S.A. Inc., 336 NLRB 1013, 1013 fn. 1, 1015, 1018 (2001)
(finding rule unlawful that stated all information about employees is strictly “confidential” and
defined “personnel records” as confidential). Additionally, as noted by counsel for the
Government, nothing about the rule limits or qualifies the prohibition on disclosing “policies, 15
procedures, and manuals” to exclude wages thus reinforcing the likely inference the rule
prescribes wage discussions with outsiders.
5. Conduct affecting the Company’s smooth operation, goodwill,
or profitability of it business20
As discussed below this rule is overbroad and restricts rights protected by the Act. In
Costco Wholesale Corp., the Board found the following paragraph unlawful because
employees would reasonably construe the rule as regulating and inhibiting Section 7 conduct.
25
Any communication transmitted, stored or displayed electronically must comply
with the policies outlined in the Costco Employee Agreement. Employees should
be aware that statements posted electronically (such as [to] online message boards
or discussion groups) that damage the Company, defame any individual or
damage any person’s reputation, or violate the policies outlined in the Costco 30
Employee Agreement may be subject to discipline, up to and including
termination of employment. 358 NLRB No. 106 (2012).
The Board found statements that: “damage the company, defame any individual or
damage any person’s reputation” clearly encompasses protests that respond to respondent’s 35
treatment of its employees. Id. There is also nothing in the company’s rule that suggests that
protected communications are excluded. Id. The Board held that employees could reasonably
conclude that the rule required them to not partake in protected communications. Id.
Here, the Company has an arguably broader rule than the rule in Costco Wholesale 40
Corp. The rule here states: “[a]ny other action or activity which Hooters reasonably believes
represents a threat to the smooth operation, goodwill, or profitability of its business [might
result in discipline up to, and including immediate termination.]” As in Costco Wholesale
Corp., supra, there is nothing to suggest that protected communications or activities are
excluded as the rule says “any other action or activity.” Though the Company limits the text to 45
what it reasonably believes; employees could reasonably conclude the rule prohibits protected
JD(ATL)–17–14
38
activities and communications. See Southern Maryland Hospital, 293 NLRB 1209, 122
(1980), enfd. in relevant part 916 F.2d 932, 940 (4th Cir. 1990) (rule prohibiting “derogatory
attacks on . . . hospital representative[s] found unlawful); Claremount Resort Spa, 344 NLRB
832 (2005) (rule prohibiting “negative conversations about associates and/or managers” found
unlawful); Beverly Health & Rehabilitation Services, 322 NLRB 347, 348 (2000), enfd. 297 5
F.3d 468 (6th Cir. 2002). Thus this rule in the Company’s handbook is unlawful.
6. Off-duty conduct
This rule is overly broad and invalid essentially for the reasons stated immediately 10
above in number five. More specifically off-duty conduct such as discussing working
conditions with fellow employees, third party persons such as employees of other employers,
and union representatives could be construed as violating this rule. Thus employees could
reasonably conclude the overbroad language in this rule encompassed Section 7 activity. The
rule is invalid.15
7. Discussing the Company’s business or legal affairs outside the company
This rule is overbroad and invalid. Prohibiting employees from discussing legal affairs
including claims or lawsuits brought by the Company or against the Company or in any way 20
discussing matters related in any way to such litigation interferes with employee rights under
the Act in that employees would reasonably construe the rule language to prohibit or limit their
exercise of rights guaranteed by Section 7 of the Act. For example, it would preclude
discussing terms and conditions of employment related to lawsuits addressing wage and hour
issues, protected age issues, race discrimination issues, fair labor standard issues, California 25
Labor Code issues, and even Board litigation issues with third parties such as union
representatives.
8. Information on employee social networking sites
30
I find this rule invalid for the reasons explained hereinafter where I conclude the
Company’s confidential information agreement and its nondisclosure agreement are unlawful
because employees’ would construe that these two policies interfere with the employees ability
to engage in activities protected by Section 7 of the Act.
35
9. Being respectful to the Company, employees, customers, partners and competitors;
post no offensive language or pictures that can be viewed by coworkers and clients;
post no negative comments about the Company or coworkers; and, never post
any information regarding a coworker or customer
40
I find the “Being respectful to the Company,” other employees, customers, partners,
and competitors rule, in conjunction with the prohibition regarding posting negative comments
about the Company or coworkers, as encompassing protected Section 7 activity, such as
employees’ statements made to coworkers, supervisors, and third parties, who deal with the
Company, about terms and conditions of employment they object to and seek support from in 45
improving their working conditions. Additionally there is nothing in the rule that would
JD(ATL)–17–14
39
reasonably suggest to employees that employee communications protected by Section 7 of the
Act are excluded from the rules reach. See Knauz BMW, 358 NLRB No. 164, slip op. at pp. 1–
2 (2012); Hills & Deals General Hospital, 360 NLRB No. 70 (2014); and, First Transit, Inc.,
360 NLRB No. 72, slip op. at p. 3 (2014).
5
E. Confidential Information and Nondisclosure Agreement
It is admitted the Company maintains an agreement containing the following
provisions:
10
1. Nature of the agreement and acknowledgement
Employee acknowledges that:
. . . .15
(b) In the course of Employee’s employment, Employee has or may
become personally acquainted with information about The Company’s employees
and their job duties, payroll or accounting records and practices, or the
Company’s personnel policies and practices, including all matters related to 20
employees training, selection, discipline and/or discharge, which is not generally
known to the public;
(c) In the course of Employee’s employment, Employee has or may
become personally acquainted with compensation data, . . . (or) employee 25
relations or EEO strategies . . . which are not generally known to the public.
2. Nondisclosure
(a) Employee agrees to act as a trustee of the information described in 30
Paragraph 1 of this Agreement which is not generally known to the public.
(b) Employee further represents to The Company that, as an
inducement to The Company to employ or continue to employ Employee,
Employee would hold such information in trust and confidence for the use and 35
benefit solely of The Company.
(c) During Employee’s employment by The Company, and for a
period of two (2) years thereafter, Employee agrees that, without prior written
permission from The Company’s General Counsel, Employee shall not publish, 40
communicate, divulge, or otherwise disclose such information to any person, firm,
company, corporation, association, partnership, or other entity for any reason or
purpose whatsoever, unless (1) such information has already become known to
the public, or (2) Employee is required to disclose such information by legal
process.45
JD(ATL)–17–14
40
(d) Notwithstanding Paragraph 2(c), Employee agrees that, without
prior written permission from The Company’s General Counsel, Employee shall
at no time publish, communicate, divulge or otherwise disclose any information
(a) concerning a matter which Employee knows or has reason to know is
privileged . . . , or (b) concerning the reasons for or circumstances surrounding, 5
or Employee’s understanding of those reasons for or circumstances surrounding,
personnel actions taken by The Company with regard to other Hooters employers,
including the hiring, firing, promotion, transfer, demotion, or discipline of any
other Hooters employee.
10
Here employees are prohibited from disclosure of any information pertaining to terms
and conditions of employment of employees such as their job duties, payroll or accounting
records and practices, personnel policies and practices including all matters related to
employee training, selection, discipline and/or discharge, which is not generally known to the
public. This nondisclosure rule is so broadly written employees would reasonably believe, if 15
they did not clearly understand, they are prohibited from discussing wages and salary
information, disciplinary and discharge policies and practices and other information they are
entitled to discuss and share with coworkers and even with third parties that might be able to
assist them with the terms and conditions of their employment. This is the type of information
that may be shared with employees, unions, and even governmental agencies. The rule here 20
has a clear chilling effect on employees in the exercise of their Section 7 rights. See MCPc,
Inc., 360 NLRB No. 39, slip op. at p. 1 (2014); Hundai American Shipping Agency, 357 NLRB
No. 80, slip op. at p. 12 (2011); and Flex Frac Logistics, LLC, 358 NLRB No. 127, slip op. at
p. 1.
25
CONCLUSIONS OF LAW
1. Hoot Winc, LLC is, and has been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
30
2. Ontario Wings, LLC d/b/a Hooters of Ontario Mills is, and has been, an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
3. Hoot Winc, LLC and Ontario Wings, LLC d/b/a Hooters of Ontario Mills are,
and at all material times have been, joint employers of the employee of Ontario Wings, LLC 35
d/b/a Hooters of Ontario Mills (hereafter I shall refer to the joint employers as the Company).
4. Key employee and marketing coordinator, Pamela Noble, and Key employee
Alicia Wade, at all material times, have been agents of the Company within the meaning of
Section 2(13) of the Act.40
5. By suspending and then discharging Alexis Hanson because of her concerted
activity of complaining to Company management regarding wages, hours, and working
conditions of Company employees specifically about the disparagement of Company
employees and conditions surrounding a competition involving employees, the Company has 45
violated Section 8(a)(1) of the Act.
JD(ATL)–17–14
41
6. The Company, by restricting its employees’ Section 7 rights, has violated
Section 8(a)(1) of the Act by maintaining the following overly broad work rules:
(a) That prohibits employees from discussing tips with other employees or 5
guest.
(b) That prohibits all insubordination to a manager or lack of respect and
cooperation with fellow employees or guest.
10
(c) That prohibits employees from disrespecting guests by discussing tips
with guest or making negative comments or actions to guests.
(d) That prohibits dispersal of sensitive Company operating materials
including policies, procedures, financial information, and Company manuals.15
(e) That prohibits any action or activity affecting the Company’s smooth
operation, good will, or profitability of its business.
(f) That prohibits off-duty conduct which would tend to negatively affect 20
employees ability to perform their jobs or the smooth operation, good will, or
profitability of the Company’s business.
(g) That prohibits employees from discussing the Company’s business or
legal affairs with anyone outside the Company.25
(h) That prohibits employees from publishing on their social networking
sites any confidential or proprietary information of the Company.
(i) That prohibits employees from being disrespectful to the Company, 30
other employees, customers, partners, and competitors, posting no offensive
language or pictures and no negative comments about the Company or coworkers
or posting any information regarding a coworker or the Company.
7. The Company, by restricting its employees’ Section 7 rights, has violated 35
Section 8(a)(1) of the Act by maintaining an overly broad, confidential information and
nondisclosure agreement rule, that prohibits employees from disclosure of any information
pertaining to terms and conditions of employment of employees such as their job duties,
payroll or accounting records and practices, personnel policies and practices including all
matters related to employee training, selection, discipline and/or discharge which is not 40
generally known to the public.
8. By maintaining its mandatory agreement to arbitrate and related documents, that
requires employees to waive their right to maintain class or collective actions in all forums,
judicial or arbitral, the Company has engaged in unfair labor practices affecting commerce 45
JD(ATL)–17–14
42
within the meaning of Section 2(6) and (7) of the Act and has violated Section 8(a)(1) of the
Act.
9. By maintaining its mandatory agreement to arbitrate and related documents that
would reasonably be read by employees to prohibit the filing of unfair labor practice charges 5
with the National Labor Relations Board, the Company has engaged in unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the Act and has violated
Section 8(a)(1) of the Act.
REMEDY10
Having found the Company has engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative actions designed to
effectuate the policies of the Act.
15
Having found that the Company has violated Section 8(a)(1) by suspending and
discharging Alexis Hanson, I recommend the Company be ordered to reinstate her to her
former job, or if that job no longer exists, to a substantially equivalent job without prejudice to
her seniority or other rights and privileges previously enjoyed, and make her whole for any lost
wages and benefits as a result of her April 23 suspension and her April 26, 2013 discharge, 20
with interest.
The backpay shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 25
(2010). Additionally, the Company is ordered to compensate Alexis Hanson for the adverse tax
consequences, if any, of receiving a lump sum backpay award, and to file a report with the
Social Security Administration allocating the backpay awards to the appropriate calendar
quarters for Alexis Hanson. See Latino Express, Inc., 359 NLRB No. 44 (2012). I also
recommend the Company, within 14 days of the Board’s Order, be ordered to remove from its 30
files any reference to Hanson’s suspension on April 23 and her discharge on April 26, 2013
and, within 3 days thereafter notify Hanson in writing it has done so and that her suspension
and discharge will not be used against her in any manner.
I also recommend the Company be ordered to rescind, modify, or revise its agreement 35
to arbitrate, and related documents, to clearly inform its employees the agreement does not
constitute a waiver in all forums of their right to maintain employment-related class or
collective actions and to clearly inform its employees that the agreement does not prohibit the
filing of unfair labor practices with the National Labor Relations Board, and notify its
employees the agreement to arbitrate and related documents have been rescinded, modified, or 40
revised and provide a copy of the modified or revised agreements to all employees.
Having also found certain rules in the Company’s Employee Handbook infringes on its
employees’ Section 7 rights, I recommend the Company be ordered to rescind the following
rules fully described elsewhere in this decision addressing; 1) discussing tips; 2) 45
insubordination by employees; 3) disrespect to guests; 4) unauthorized dispersal of sensitive
JD(ATL)–17–14
43
Company materials; 5) conduct affecting the Company’s smooth operation, goodwill, or
profitability of it business; 6) off-duty conduct; 7) discussing the Company’s business or legal
affairs outside the Company; 8) information on employee social networking sites; and 9) being
respectful to the Company, employees, customers, partners, and competitions, post no offensive
language or picture that can be viewed by coworkers and clients; and post no negative 5
comments about the Company or co-workers and never post any information regarding a
coworker or customer; and notify its employees in writing that it has rescinded these rules.
I also recommend the Company be ordered to rescind its confidential information and
nondisclosure agreement.10
On these finding of fact and conclusions of law and on the entire record, I issue the
following recommended10
ORDER15
The Company, Hoot Winc, LLC and Ontario Wings, LLC d/b/a Hooters of Ontario
Mills, Joint Employers, their officers, agents, successors, and assigns, shall
1. Cease and desist from20
(a) Suspending, discharging or otherwise discriminating against employees for
engaging in concerted activity protected by the Act.
(b) Maintaining its mandatory agreement to arbitrate, and related documents, 25
that requires employees to waive their right to maintain class or collective actions in all forums;
arbitral and judicial; and maintaining language in the agreement that would reasonably be read
by employees to prohibit the filing of unfair labor practice charges with the National Labor
Relations Board.
30
(c) Maintaining an overly broad rule that prohibits employees from discussing
tips with other employees or guests.
(d) Maintaining an overly broad rule that prohibits all insubordinations by
employees to a manager or lack of respect and cooperation with fellow employees or guests.35
(e) Maintaining an overly broad rule that prohibits employees from disrespecting
guests by discussing tips with guests or making negative comments or actions to guests.
(f) Maintaining an overly broad rule that prohibits employee’s dispersal of 40
sensitive Company operating materials including policies, procedures, financial information,
and Company manuals.

10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of all the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
JD(ATL)–17–14
44
(g) Maintaining an overly broad rule that prohibits employees from any action or
activity affecting the Company’s smooth operation, goodwill, or profitability of its business.
(h) Maintaining an overly broad rule that prohibits employees’ off-duty conduct
which would tend to negatively affect employees ability to perform their jobs or the smooth 5
operation, goodwill, or profitability of the Company’s business.
(i) Maintaining an overly broad rule that prohibits employees from discussing
the Company’s business or legal affairs with anyone outside the Company.
10
(j) Maintaining an overly broad rule that prohibits employees from being
disrespectful to the Company, other employees, customers, partners, and competitors, posting
no offensive language or pictures and no negative comments about the Company or coworkers
or the Company.
15
(k) Maintaining an overly broad rule in its confidential information and
nondisclosure agreement that prohibits employees from disclosure of any information
pertaining to terms and conditions of employees such as their job duties, payroll or accounting
records and practices, personnel policies and practices including all matters related to employee
training, selection, discipline and/or discharge which is not generally known to the public.20
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Within 14 days from the date of the Board’s Order, offer Alexis Hanson full
reinstatement to her former job, or, if that job no longer exists, to a substantially equivalent 25
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
(b) Make Alexis Hanson whole for any loss of earnings and other benefits
suffered as a result of the discrimination against her, in the manner set forth in the remedy
section of this decision.30
(c) Within 14 days from the date of the Board’s Order, remove from our files
any reference to the unlawful suspension and discharge of Alexis Hanson, and within 3 days
thereafter, notify her in writing that this has been done and that her suspension and discharge
will not be used against her in any way.35
(d) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of the records 40
if stored in electronic form, necessary to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days of the Board’s Order rescind or revise the agreement to
arbitrate, and related documents, that requires employees to waive their right to maintain class 45
or collective action in all forums, whether arbitral or judicial, and language that would
JD(ATL)–17–14
45
reasonably be read by employees to prohibit the filing of unfair labor practice with the National
Labor Relations Board.
(f) Advise all current employees in writing that the agreement to arbitrate and
related documents have been revised or rescinded and that employees are no longer prohibited 5
from bringing and participating in class actions against the Company nor, are they prohibited
from filing charges with the National Labor Relations Board.
(g) Within 14 days of the Board’s Order rescind or revise the confidential
information and nondisclosure agreement that prohibits employees from disclosure of any 10
information pertaining to terms and conditions of employees such as their job duties, payroll or
accounting records and practices, personnel policies and practices including all matters related
to employees training, selection, discipline and/or discharge which is not generally known to
the public.
15
(h) Advise all current employees that the confidential information and
nondisclosure agreement has been rescinded or revised and that they are not prohibited from
disclosure of any information pertaining to terms and conditions of employees such as their job
duties, payroll or accounting records and practices, personnel policies and practices including
all matters related to employees training, selection, discipline and/or discharge which is not 20
generally known to the public.
(i) Within 14 days of the Board’s Order rescind or revise the rules in the
Employee Handbook listed in 1(c), (d), (e), (f), (g), (h), (i), and (j) of this Order.
25
(j) Furnish all current employees with inserts for the Employee Handbook that in
(1) advises that the unlawful rules (listed in 1(c), (d), (e), (f), (g), (h), (i), and (j) of this Order)
have been rescinded, or (2) provide the language of lawful rules; or publish and distribute a
revised Employee Handbook that (1) does not contain the unlawful rules, or (2) provides
language of lawful rules.30
(k) Within 14 days after service by the Region, post at its facility in Ontario,
California, copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms
provided by the Regional Director for Region 31 after being signed by the Company’s
authorized representative, shall be posted by the Company and maintained for 60 consecutive 35
days in conspicuous places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Company to ensure that the notices are not
altered, defaced, or covered by any other material. 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 Company customarily communicates40
with its employees by such means. In the event that, during the pendency of these proceedings,
the Company has gone out of business or closed the facility involved in these proceedings, the

11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.
JD(ATL)–17–14
46
Company shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Company at any time since April 23, 2013.
(l) 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 5
steps that the Company has taken to comply.
Dated, Washington, D.C. May 19, 2014
10
____________________________
William N. Cates
Associate Chief Judge15
JD(ATL)–17–14
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf.
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT suspend or discharge you because of your protected activity of concertedly
raising with Company management your concerns regarding wages, hours, and working
conditions specifically your concerns about disparagement of employees and conditions
surrounding a competition involving employees.
WE WILL NOT maintain or enforce our agreement to arbitrate and related documents that
requires employees to waive their right to maintain class or collective actions in all forums;
arbitral and judicial; and, language in the agreement that would reasonably be read by
employees to prohibit the filing of unfair labor practice charges with the National Labor
Relations Board.
WE WILL NOT maintain or enforce a provision in our Employee Handbook that prohibits
employees from discussing tips with other employees or guests.
WE WILL NOT maintain or enforce a provision in our Employee Handbook that prohibits all
insubordination by employees to a manager or lack of respect and cooperation with fellow
employees or guests.
WE WILL NOT maintain or enforce a provision in our Employee Handbook that prohibits
employees from disrespecting guests by discussing tips with guests or making negative
comments or actions to guests.
WE WILL NOT maintain or enforce a provision in our Employee Handbook that prohibits
employees’ dispersal of sensitive Company operating materials including policies, procedures,
financial information, and Company manuals.
JD(ATL)–17–14
WE WILL NOT maintain or enforce a provision in our Employee Handbook that prohibits
employees from any action or activity affecting the Company’s smooth operation, goodwill, or
profitability of its business.
WE WILL NOT maintain or enforce a provision in our Employee Handbook that prohibits
employees’ off-duty conduct which would tend to negatively affect employees ability to
perform their jobs or the smooth operation, goodwill, or profitability of the Company’s
business.
WE WILL NOT maintain or enforce a provision in our Employee Handbook that prohibits
employees from discussing the Company’s business or legal affairs with anyone outside the
Company.
WE WILL NOT maintain or enforce a provision in our Employee Handbook that prohibits
employees from being disrespectful to the Company, other employees, customers, partners, and
competitors, posting no offensive language or pictures and no negative comments about the
Company or coworkers of the Company.
WE WILL NOT maintain or enforce a provision of our confidential information and
nondisclosure agreement that prohibits employees from disclosing any information pertaining
to terms and conditions of employees such as their job duties, payroll or accounting records and
practices, personnel policies and practices including all matters related to employee training,
selection, discipline and/or discharge which is not generally known to the public.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of rights guaranteed you by Federal labor law.
WE WILL, within 14 days from the date of the Board’s Order, offer Alexis Hanson full
reinstatement to her former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL make Alexis Hanson whole for any loss of earnings and other benefits resulting
from her discharge, less any net interim earnings, plus interest.
WE WILL compensate Alexis Hanson for the adverse tax consequences if any, of receiving a
lump sum backpay award, and WE WILL, file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar quarters.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful suspension and discharge of Alexis Hanson, and WE WILL, within 3
days thereafter, notify her in writing that this has been done and that the discharge will not be
used against her in any way.
WE WILL revise or rescind our agreement to arbitrate, and related documents, that requires
employees to waive their right to maintain class or collective actions in all forums; arbitral and
judicial; and, maintaining language in the agreement that would reasonably be read by
JD(ATL)–17–14
employees to prohibit the filing of unfair labor practice charges with the National Labor
Relations Board.
WE WILL revise or rescind the provision in our Employee Handbook that prohibits employees
from discussing tips with other employees or guests.
WE WILL revise or rescind the provision in our Employee Handbook that prohibits all
insubordination by employees to a manager or lack of respect and cooperation with fellow
employees or guests.
WE WILL revise or rescind the provision in our Employee Handbook that prohibits employees
from disrespecting guests by discussing tips with guests or making negative comments or
actions to guests.
WE WILL revise or rescind the provision in our Employee Handbook that prohibits
employee’s dispersal of sensitive Company operating materials including policies, procedures,
financial information, and Company manuals.
WE WILL revise or rescind the provision in our Employee Handbook that prohibits employees
from any action or activity affecting the Company’s smooth operation, goodwill, or
profitability of its business.
WE WILL revise or rescind the provision in our Employee Handbook that prohibits
employees’ off-duty conduct which would tend to negatively affect employees ability to
perform their jobs or the smooth operation, goodwill, or profitability of the Company’s
business.
WE WILL revise or rescind the provision in our Employee Handbook that prohibits employees
from discussing the Company’s business or legal affairs with anyone outside the Company.
WE WILL revise or rescind the provision in our Employee Handbook that prohibits employees
from being disrespectful to the Company, other employees, customers, partners, and
competitions, posting no offensive language or pictures and no negative comments about the
Company or coworkers or the Company.
WE WILL revise or rescind the provision in our confidential information and nondisclosure
agreement that prohibits employees from disclosure of any information pertaining to terms and
conditions of employees such as their job duties, payroll, or accounting records and practices,
personnel policies and practices including all matters related to employee training, selection,
discipline and/or discharge which is not generally known to the public.
HOOT WINC, LLC AND ONTARIO
WINGS, LLC d/b/a HOOTERS OF
ONTARIO MILLS, JOINT EMPLOYERS
Dated: ___________________ By: __________________________________________
(Representative) (Title)
JD(ATL)–17–14
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
11500 West Olympic Boulevard, Ste. 600, Los Angeles, California 90064-1824
(310) 235-7351, Hours: 8:30 a.m. to 5:00 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/31-CA-104872 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT
BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (310) 235-7424