Mid-Atlantic Restaurant Group- Kelly's Taproom

National Labor Relations Board - Board Decisions

Nov 30, 2016

364 NLRB No. 153 (N.L.R.B. 2016)

364 NLRB No. 153
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Mid-Atlantic Restaurant Group LLC d/b/a Kelly’s
Taproom and Robin C. Helms. Case 04–CA–
162385
November 30, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On June 13, 2016, Administrative Law Judge Mark
Carissimi issued the attached decision. The Respondent
filed exceptions and a supporting brief,1 the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions2 and
briefs and has decided to affirm the judge’s rulings, find-
ings,3 and conclusions, to amend the remedy,4 and to

1 The General Counsel filed a motion to strike portions of the Re-
spondent’s supporting brief. In view of our disposition of this case, we
find it unnecessary to pass on the General Counsel’s motion.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions allege that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by discharging employee Robin Helms, we agree that, under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), the General Counsel met his
initial burden and that the Respondent failed to meet its rebuttal burden
because its proffered reasons for the discharge were pretextual. Re-
garding the General Counsel’s initial burden, we agree that Helms
engaged in concerted activity and additionally find that her activity was
for the purpose of mutual aid or protection because, as the judge found,
Helms sought to address the bartenders’ ongoing scheduling problems
and their concern over the loss of prime shifts to newly hired employ-
ees. Further, in finding that the General Counsel met his burden to
establish animus towards Helms’ protected activity, we do not rely on
the judge’s finding that the Respondent’s handbook demonstrated hos-
tility to employee complaints about working conditions.
In finding that Helms engaged in concerted activity for the purpose
of mutual aid or protection, Member Miscimarra relies on the reasons
stated in his dissenting opinion in Fresh & Easy Neighborhood Market,
Inc., 361 NLRB No. 12 (2014).
adopt the recommended Order as modified and set forth
in full below.5
ORDER
The National Labor Relations Board orders that the
Respondent, Mid-Atlantic Restaurant Group LLC d/b/a
Kelly’s Taproom, Bryn Mawr, Pennsylvania, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they engage in
protected concerted activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Robin Helms 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.
(b) Make Robin Helms whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(c) Compensate Robin Helms for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 4,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year.
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge of Robin Helms, and within 3 days thereafter,
notify Helms in writing that this has been done and that
the discharge will not be used against her in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for

4 In accordance with our recent decision in King Soopers, Inc., 364
NLRB No. 93 (2016), we amend the remedy to provide that the Re-
spondent shall compensate Robin Helms for her search-for-work and
interim employment expenses regardless of whether those expenses
exceed interim earnings. Search-for-work and interim employment
expenses shall be calculated separately from taxable net backpay, with
interest at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010). For the reasons stated in his separate
opinion in King Soopers, supra, slip op. at 9–16, Member Miscimarra
would adhere to the Board’s former approach, treating search-for-work
and interim employment expenses as an offset against interim earnings.
5 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language, and we shall substitute a new
notice to conform to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Bryn Mawr, Pennsylvania facility copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since April 30, 2015.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 4 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. November 30, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Robin Helms full reinstatement to her for-
mer 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 Robin Helms whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest, plus reasona-
ble search-for-work and interim employment expenses.
WE WILL compensate Robin Helms for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 4, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
year.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Robin Helms, 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.
MID-ATLANTIC RESTAURANT GROUP LLC
D/B/A KELLY’S TAPROOM
MID-ATLANTIC RESTAURANT GROUP, LLC D/B/A KELLY’S TAPROOM 3
The Administrative Law Judge’s decision can be found
at www.nlrb.gov/case/04-CA-162385 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
David Faye, Esq., for the General Counsel.
Nathan Schadler, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was
tried in Philadelphia, Pennsylvania, on March 23–24, 2016.
Robin C. Helms (Helms) filed the charge on October 21, 2015,1
and the General Counsel issued the complaint on December 17,
2015.
The complaint alleges that the Respondent2 discharged
Helms on April 30, 2015, in violation of Section 8(a)(1) of the
Act.3
On the entire record,4 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a limited liability company, operates a res-
taurant (Kelly’s) in Bryn Mawr, Pennsylvania. Annually, the
Respondent, in conducting its business operations described
above, receives gross revenues in excess of $500,000 and pur-
chases and receives at Kelly’s, goods valued in excess of $5000
directly from points outside the Commonwealth of Pennsylva-
nia. The Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),

1 All dates are in 2015 unless otherwise indicated.
2 The Respondent will be referred to herein as the Respondent or
Kelly's.
3 The discharge of Helms is the only matter alleged to be an unfair
labor practice in the complaint. The General Counsel did not make any
amendments to the complaint at the trial alleging additional unfair labor
practices. I indicated at the hearing that I would not consider anything
to be an unfair labor practice unless it had been alleged as such in the
complaint (Tr. 52–53).
4 The record contains an affidavit executed by Eugene Mitchell (GC
Exh. 7). While this document was identified on the record, it was not
introduced into evidence at the hearing. Consequently, I have not read
or considered GC Exh. 7 and I order that it be stricken from the record.
and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Credibility of Witnesses
In making my findings regarding the credibility of witnesses,
I have considered their demeanor, the content of the testimony,
and the inherent probabilities based on the record as a whole. In
certain instances, I credited some, but not all, of what a witness
said. I note, in this regard, that “nothing is more common in all
kinds of judicial decisions to believe some and not all” of the
testimony of a witness. Jerry Ryce Builders, 352 NLRB 1262
fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d
749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474
(1951). See also J. Shaw Associates, LLC, 349 NLRB 939,
939–940 (2007). In addition, I have carefully considered all the
testimony in contradiction to my factual findings and have dis-
credited such testimony.
The General Counsel’s case rests in large part on the testi-
mony of Helms. I found Helms to be a credible witness and rely
on her testimony substantially with regard to factual findings.
Throughout the trial her demeanor reflected a sincere desire to
testify truthfully and her testimony had sufficient detail to ren-
der it reliable. Helms testimony reflected that she remembered
in detail the events that she described. In addition, she testified
consistently on both direct and cross-examination. In its brief,
the Respondent contends that because Helms has a financial
interest in the outcome of this proceeding and her testimony,
for the most part, is not corroborated by the testimony of other
witnesses, it should not be credited. The Board has long held,
however, that the uncorroborated testimony of an alleged dis-
criminatee can constitute substantial evidence in support of the
allegations of the complaint when such testimony is found to be
credible and is not undermined by contradictory evidence.
Ferguson Enterprises, Inc., 355 NLRB 1121 fn. 1 (2010); Li’l
General Stores Inc., 170 NLRB 867 fn. 1 (1968), enfd. in rele-
vant part 422 F.2d 571 (1970).
I found the testimony of the Respondent’s main witnesses,
Eugene Mitchell and Angelia Mitchell to be generally unrelia-
ble and do not credit it to the extent that it conflicts with
Helms’ testimony. As will be set forth in further detail herein,
their testimony is not mutually corroborative with respect to
critical events and is generally implausible. The brief testimony
of Respondent’s witness Ryan Henry, contradicts the testimony
of the Mitchells regarding the meeting at which Helms was
discharged. In addition, as will be discussed further herein,
Henry’s recall with respect to much of his testimony was very
limited and I found his testimony to be unreliable. I do not
credit his testimony to the extent it conflicts with that of Helms.
I will discuss the credibility of other Respondent witnesses as
necessary later in the decision.
FACTS
Background
Eugene Mitchell is the majority owner of the Respondent
which, as noted above, operates Kelly’s restaurant. Kelly’s is
located in Bryn Mawr, Pennsylvania, near the Villanova Uni-
versity campus. Mitchell also has an ownership interest in two
other restaurants, Flip and Bailey and Garrett Ale House, both
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
of which are located approximately a mile from Kelly’s. Mitch-
ell’s wife, Angelia Mitchell, is the operations manager of
Kelly’s. During the time relevant to the complaint, there was
also an on-site manager at Kelly’s. Ryan Henry was the man-
ager at Kelly’s from approximately December 2014 until the
fall of 2015. Prior to that time, Kristin Lang was the manager
of Kelly’s. The parties stipulated that Eugene Mitchell, Angelia
Mitchell, Henry, and Lang were supervisors within the meaning
of Section 2(11) of the Act and agents within the meaning of
Section 2(13) of the Act.
Kelly’s is a full-service restaurant which employs cooks,
servers, full-time and part-time bartenders, and security person-
nel (bouncers). The restaurant has two levels and there is a bar
on each level. During the time material to the complaint there
were approximately 7 to 10 bartenders employed at Kelly’s.
The employees at Kelly’s are not represented by a union.
Helms Raises Complaints about Employee Scheduling
Helms was hired by the Respondent as a part-time bartender
in March 2014, and worked at Kelly’s until she was discharged
on April 30, 2015. Prior to the time that she was discharged
Helms had perfect attendance record and the Respondent had
never issued any written warnings or suspension to Helms.5
Angelia Mitchell testified that Helms was a good bartender.
Helms testified that Thursday, Friday, and Saturday eve-
nings, with a 5 p.m. start time were the most lucrative shifts for
bartenders at Kelly’s since the major part of a bartender’s wag-
es came in the form of tips and it was during those periods that
there was the most volume of business. According to Helms,
she would typically be notified by an email from the restaurant
manager on Saturday regarding her schedule for the upcoming
week beginning on Monday.
Helms testified that she and other employees at Kelly’s had
concerns about the manner in which they had some been
scheduled for some period of time. In this connection, Helms
testified that in October 2014, she met with Kristin Lang, along
with another bartender Joe Fairley, and a server Chris Healy.
According to Helms, Joe Fairley raised a complaint regarding
the starting time for evening shifts. Fairley indicated that as a
day-shift employee he should get all of the early start times for
the evening shift and that anyone who did not work on the day
shift should not get any early evening start times. Helms stated
that she worked on Sundays, which was not a lucrative shift,
equal to or less than a day shift, and therefore she was also
entitled to some of the early evening start times. Healy indicat-
ed that he wanted to be on the bar staff as he had been at
Kelly’s for some time as a server. According to Helms, Kristin
Lang indicated that complaining was not going to get the em-
ployees anywhere. She said that bringing in Eugene or Angelia
Mitchell was not going to get the employees earlier evening

5 Angelia Mitchell testified that in the summer of 2014, a “spotting”
company reported that Helms had given away drinks for free. Mitchell
testified this was contrary to the Respondent's policy and that she in-
structed Supervisor Kristin Lang speak to Helms about it. Mitchell
testified that Lang reported Helms did not recall the incident occurring
and that no further action was taken. Helms did not testify regarding
this incident and I credit Angelia Mitchell's uncontradicted testimony
on this point.
starting times. Lang stated that Eugene Mitchell “would lose
his shit” if the employees brought scheduling issues up to him.6
In late November or early December 2014 Helms told Lang
that she was frustrated by Lang’s mismanagement of the sched-
ule. Lang told Helms that if she complained to the Mitchells
about the schedule that Lang would get into trouble and that she
could not handle that stress. Lang told Helms all that what hap-
pened is that she would be told to take shifts away from Helms.
In March 2015, Michael Bevevino, Kelly’s most senior bar-
tender, gave notice to the Respondent of his intention to leave
in April 2015. In early April 2015, Angelia Mitchell began to
interview new bartenders to hire because Bevevino was leaving
and bartender Sarah Clark had indicated that she was also leav-
ing her employment at Kelly’s because she was graduating
from college and was relocating from the area.7 In mid-April
2015, Angelia Mitchell hired three new bartenders including
Chelsea Heyward.
According to Helm’s uncontradicted and credible testimony,
she spoke to Flood and Clark about their frustrations with what
they viewed as an inconsistency in scheduling and talked about
the effect of the newly hired bartenders on their schedules and
what they could do about it. Helms, Flood, and Clark were
concerned that the new employees would be assigned the prime
shifts starting at 5 p.m. on Thursday, Friday, and Saturday
night. The three employees were concerned that this would
affect their ability to get as many hours on the prime shifts as
possible before the busy season at Kelly’s ended after the first
week of June.8 (Tr. 57–59.)
In mid-April 2015, Helms and Flood met with Ryan Henry
in the manager’s office in the basement of Kelly’s and brought
to him the concerns regarding the schedule that Helms, Flood,
and Clark had discussed previously. Helms and Flood specifi-
cally noted that with the changes in the schedule that were go-
ing to occur after Bevevino left, they wanted to make sure that
senior bartenders, including the two of them, would receive the
prime shifts that Bevevino worked starting at 5 p.m. on Thurs-
day, Friday, and Saturday night. Henry indicated that he was
sympathetic to their complaints but that there was nothing that
he could do about it. Henry stated that bringing these com-
plaints to the attention of the Mitchells would result in the loss
of shift hours and a loss of shifts altogether.9

6 Lang, Fairley, and Healy did not testify at the hearing. As dis-
cussed above, I found Helms to be a credible witness. Accordingly, I
credit her uncontradicted testimony with respect to this meeting with
Kristin Lang.
7 Clark's last day of employment at Kelly's was approximately May
17.
8 Helms testified that the restaurant was busy through the first week
of June because of graduation parties and the Villanova alumni week-
end in early June, but that after that business dropped off substantially
for the remainder of the summer.
9 I find that this meeting occurred in mid-April 2015 rather than late
March 2015 as Helms testified to. Heyward, who was called as a wit-
ness by the Respondent, began working for the Respondent on approx-
imately April 16. Heyward testified that on her first day of training she
had to go to the basement at Kelly's and briefly observed Flood and
Helms talking to Henry. Heyward testified that she overheard Helms
and Flood tell Henry that they did not want their schedules affected by
the new employees that had been hired. This portion of Heyward's
MID-ATLANTIC RESTAURANT GROUP, LLC D/B/A KELLY’S TAPROOM 5
At the time of the hearing, Henry was no longer employed
by the Respondent and testified on behalf of the Respondent
pursuant to a subpoena. Henry testified in a vague and general-
ized fashion regarding this meeting. Henry initially testified he
recalled that he met with Helms and Flood regarding their con-
cerns about their schedules and shifts they would be assigned in
light of Bevevino leaving. He then testified, however, that he
recalled Helms and another person discussing scheduling with
him but he did not remember whether it was Flood. Henry indi-
cated that while he recalled Helms expressing concern over her
schedule when Bevevino left, he could not recall whether the
other bartender who was present expressed a similar concern.
Henry did not specifically deny the threats attributed to him
regarding the loss of shift hours or shifts altogether if com-
plaints about the scheduling were brought to the attention of the
Mitchells. I credit Helms testimony regarding this meeting as it
had far greater detail. In addition, I found her demeanor while
testifying regarding this issue to be convincing, while Henry's
demeanor reflected uncertainty as to who he met with and what
was discussed
Helms testified that in mid-April, she and Healy met with
Henry in the bar area on the second floor of Kelly’s. Healy
stated that he had met one of the new bartenders. Healy told
Henry that he wanted to make sure that as he had more seniori-
ty as a bartender, that he be given more bartending shifts before
shifts were given to newly hired bartenders. Henry indicated
that he could not guarantee anything. Helms told Henry that
there was a general feeling of frustration among the more sen-
ior bartenders and a concern that the new hires would receive
the prime shifts or be put on a shift that more senior bartenders
had been regularly working, causing them to be removed from
the schedule. Henry replied that he worked for the Mitchells
and he did what they told him to as far as when Helms had been
taken off the schedule in the past and a new employee put in
her spot.10 Helms told Henry that she had drafted an email to
Eugene Mitchell that indicated that she had earned better shifts
because of consistent work and great performance and picking
up terrible shifts in the past. Helms showed Henry the email
that she had drafted. Henry told Helms that the email would not
get her anywhere, that it was just going to anger Eugene Mitch-
ell and he cautioned her not to send the email.11 Helms testified
that she did not send the email to Eugene Mitchell.12

testimony partially corroborates Helms testimony regarding the sub-
stance of this meeting but establishes that it occurred in mid-April
rather than late March.
10 Helms testified that she had previously lost shifts without an ex-
planation when new employees were hired.
11 At the time the Respondent maintained an employee handbook
which included “Disciplinary Guidelines,” stating, in relevant part:
Management retains the right to discipline, including dismissal from
employment, for any behavior, whether related to job performance or
otherwise, which adversely affects the reputation or business activities
of the restaurants:
1. Criticizing, condemning, or complaining in a manner that affects
employee morale. (GC Exh. 3, p.18.)
12 Henry testified generally that he recalled that Helms raised, on at
least one occurrence, concerns about the scheduling and that she want-
ed a particular schedule. Henry testified that he did not recall if Helms
raised concerns about the schedules of other employees beyond her
According to Helms uncontradicted and credited testimony,
in addition to the two meetings, discussed above that she had
with Henry and other employees to discuss employee concerns
regarding scheduling, she spoke to Henry separately regarding
the issue of scheduling approximately four more times from
late March until the end of April 2015. In each of these conver-
sations, Helms told Henry that the concern about scheduling
was not hers alone, but that other bartenders were nervous and
unsure of their positions and that it was causing “anxiety”
among them. At one of her meetings with Henry, Helms told
him that she wanted to speak to the Mitchells about the sched-
uling. Helms told Henry with the new employees coming in,
she wanted to make sure that the senior employees were not
going to lose prime shifts. Henry told her not to make any com-
plaints to Eugene Mitchell about the schedule. Henry told her
that a dishwasher who was also a cleaner recently have told
Eugene Mitchell that he was not going to be available for sev-
eral Saturdays and, as a result, Henry was told to take that em-
ployee office cleaning schedule in retaliation for requesting
time off.
At the trial, Eugene Mitchell admitted that Henry told him
that Helms was complaining about shift scheduling to other
employees. (Tr. 159.) According to Mitchell, this occurred in
the spring of 2015, when the new employees were being hired.
Mitchell denied, however, of being aware of concerns that
Helms raised to management about other employees’ shifts.
Eugene Mitchell also testified that at an unspecified time
Helms told Eugene Mitchell that she would like longer shifts
and that he had let Henry know about this. I do not credit this
portion of Eugene Mitchell’s testimony. In the first instance,
Helms testified that she never spoke to Eugene Mitchell direct-
ly regarding her dissatisfaction with the way that shifts were
scheduled for employees. As I have noted previously, I found
Helms to be a much more credible witness then Eugene Mitch-
ell and to the extent their testimony conflicts, I credit Helms. I
also find that it is implausible that Helms directly spoke to Eu-
gene Mitchell about her dissatisfaction with the scheduling of
shifts after she had been warned by both Lang and Henry that
Eugene Mitchell would be upset if she directly approached him
regarding such complaints.
Angelia Mitchell also admitted that she was aware of the
concerns that Helms and Flood had regarding what shifts they
would have in view of the hiring of the three new bartenders on
April 9 and that both employees had expressed those concerns
to Henry. (Tr. 176–177.) In this connection, Angelia Mitchell
testified that she had received an email from Henry around the
time that the new employees were hired reflecting that Helms
and Flood were concerned about their shifts. (Tr. 260–261.)
Mitchell also testified that each employee complained about

own. Henry testified that he had communicated with the Mitchells
through email and that his interactions with them in that regard were
“professional.” Henry was not asked about, and therefore did not spe-
cifically deny, making the statements attributed to him by Helms re-
garding what he thought Eugene Mitchell’s reaction would be to the
email that Helms showed him. I credit Helms version of this meeting
over that of Henry. Helms’ testimony regarding these meetings with
Henry has the type of detail that renders it reliable and her demeanor
while testifying regarding this event reflected certainty.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
their individual schedule and sought improvement of their own
schedule.
The Bartenders’ Practice at Kelly’s Regarding Service
Helms testified that the service policy at Kelly’s was that
bartenders were not to serve anyone that was intoxicated or did
not have identification. Helms also testified that there was an
established practice that customers that were known not to tip,
or not to tip well, were served after other customers. According
to Helms credited testimony, this policy was enforced by Mi-
chael Bevevino, the most senior bartender, and the employee
who would divide the tip money among the bartenders at the
end of the evening.13 Bevevino would tell other bartenders that
because a customer did not tip, he or she would be served after
others were served. Helms testified that when she was working
in Bevevino’s area and he saw her serve people that he had
indicated should be served last, he would “yell” at her for serv-
ing those customers quickly. According to Helms, there were
three Villanova students who were regular customers and
known not to tip. Two were males and one was an African-
Americans female, who was known to be in a sorority.14 Helms
testified that while she was sympathetic to the customers that
did not tip because, for the most part they were college students
who did not have a lot of money, she would comply with the
practice enforced by Bevevino when he was present and serve
customers known not to tip after other customers. Helms credi-
bly testified, however, that she never refused to serve any cus-
tomer unless they were intoxicated.
Helms testified that after the Super Bowl party held at
Kelly’s in February 2016 she had a conversation with Eugene
Mitchell in which the practice regarding service to customers
who do not tip, or did not tip well, came up. Mitchell asked
Helms about how a couple, who were personal friends of the
Mitchells and who had been at the Super Bowl party, were as
guests. Helms replied that they were “nice” and that she did not
have a problem the way that they tipped, but that Bevevino did
not engage them and told the other bartenders to get their drinks
before they left the bar area so that he would not have to do so.
Helms told Mitchell that Bevevino did not interact with the
couple because he felt he did not tip an appropriate amount.15
On February 15, 2015, at 1:56 a.m., a customer of Kelly’s
sent an email to Eugene Mitchell regarding service he received
at Kelly’s on the evening of February 14-15. (GC Exh. 4.) The
customers email indicated that at approximately 1:15 a.m. on
February 15, a female bartender told him that he would not be
served. She told him “You don’t tip well enough, I work for
tips, fuck you.” The customer’s email further indicated that “I
was very upset because of the 4 drinks I previously purchased, I

13 All tips were pooled and were divided equally between all bar-
tenders on duty on a particular evening by Bevevino.
14 Although Bevevino was called as a witness by the Respondent, he
did not testify regarding the policy of the bartenders at Kelly's regard-
ing the relationship between tipping and service. Thus, Helms testimo-
ny on this point is uncontradicted.
15 Eugene Mitchell testified that he did not recall having such a con-
versation with Helms. I credit Helms testimony regarding the conversa-
tion as it had sufficient detail to establish its reliability and her demean-
or while testifying regarding this incident was convincing.
had tipped twice. I don’t have money to tip every time, but tip
every other to make sure bartenders get their pay. As I walked
to another bartender, I saw the blonde woman point me specifi-
cally, and tell the other 2 bartenders not to serve me.” The cus-
tomer indicated that he was concerned that he will be treated
that way future visits to Kelly’s which would force him to take
his business elsewhere.
On February 15, at 7:41 a.m., Mitchell responded to the cus-
tomer thanking him for his letter and apologizing for his expe-
rience. The email further indicated: “There are many instances
with patrons who did not tip. I will tell you that regardless of
the tip the bartenders are trained and instructed to treat each
patron with dignity and respect. This issue noted in your email
will not be lightly taken and will be addressed today.”
On February 15, at 7:50 a.m., Mitchell forwarded the cus-
tomer’s email to the bartenders at Kelly’s, and stated in his own
email: “You can certainly choose to serve at your discretion but
we can’t have interactions like the one described below. It will
do more damage than good and generally reverberate through
the community. There are some really good days ahead of us
with the basketball team doing well and spring around the cor-
ner . . . I think. I know these kids can be unbearable, frustrating
and rude to say the least. Be patient and please do not lash out.
Take a break if you need to decompress.”
Later in the morning of February 15, Sarah Clark sent an
email to Eugene Mitchell stating in part, “I have a much differ-
ent version of the story, and I know ultimately it does not mat-
ter, but I am still sorry. I just wanted to let you know that the
content in his email is not how it actually went down.” Clark
indicated that she would be happy to tell Mitchell her side of
the story.
On the afternoon of February 15, Mitchell sent an email to
Clark indicating: “Thank you for responding. I am totally on
your side and everyone that works with us. The intent on send-
ing the email was not to call you out just to let everyone know
how things reverberate on the smallest of issues. You are all
good with us. I would like to hear your side and that he was
belligerent or cut off would be great to document. We always
get hammered for VIP and never point out when folks are cut
off. Anyway, don’t let this impact your day, at all. Let’s make
some money when we have the chance. You guys deserve it.”
According to Mitchell’s uncontradicted and credited testi-
mony, he later met with Clark and told her that her behavior
toward the customer was inappropriate, but that no further ac-
tion was taken against her. Mitchell admitted that it is quite
common in the restaurant industry that some bartenders will
give better service to customers who tip better. Nonetheless,
Mitchell also testified that he was not aware of Bevevino’s
practice while employed at Kelly’s of not quickly serving cus-
tomers who did not tip or, in his view, did not tip appropriately.
I do not credit Mitchell’s testimony on this issue because, as
noted above, I find that Helms specifically advised him of it. I
also find that Mitchell’s testimony on this issue is implausible,
given his admission that he is aware that such a practice is
common in the restaurant industry. In addition, the email ex-
change set forth above establishes that a customer complaint
regarding a lack of service because of a failure to tip was spe-
cifically brought to Mitchell’s attention. Mitchell acknowledges
MID-ATLANTIC RESTAURANT GROUP, LLC D/B/A KELLY’S TAPROOM 7
speaking to Clark about the matter and telling her that such
conduct was inappropriate. The record establishes, however,
that no discipline was ever administered to a bartender at
Kelly’s because of a failure to serve a customer, or serve a cus-
tomer promptly, because the customer did not tip, or did not tip
appropriately.
Helms’ Training with Heyward
Helms testified that she was assigned to train newly hired
bartender Heyward on the second night of Heyward’s training
at Kelly’s. According to Helms, she told Heyward that since
Kelly’s was a high-volume, quick turnover bar, typically the
bartenders would first serve the customers who they knew
tipped, and later serve the customers the bartenders knew did
not tip. Heyward responded and that she had worked in this
type of environment before and that that was the universal rule
regarding service.
According to Helms, Heyward told Helms that Sarah Clark,
who had trained Heyward on her first evening of work at
Kelly’s, told Heyward that shifts were not assigned well and
that there were complaints from the staff regarding scheduling.
Heyward added that as a single mother she needed a consistent
schedule in order to support her son. Heyward asked Helms her
opinion about whether she should stay at Kelly’s, since Helms
was also a mother. Helms replied that she agreed with Clark
that shifts and scheduling were an issue but that she did give an
opinion about what Heyward should do.
On cross-examination, Helms testified that while Helms was
working with Heyward, the African-American woman who was
in a sorority, came into the restaurant and Helms mentioned to
Heyward that she was known not to tip and was served after
others. Helms denied refusing to serve the customer. Heyward
served the customer. Helms noted that on the same evening,
Helms served several African-American bouncers who worked
at the restaurant, who were with their wives and girlfriends
celebrating a birthday.
At the time of the trial, Heyward, who is African-American,
no longer worked at Kelly’s and testified on behalf of the Re-
spondent pursuant to a subpoena. According to Heyward, when
they trained together, Helms told her that if newly hired em-
ployees were scheduled for earlier shifts that started at 5 p.m.,
Helms would be upset because she had seniority. According to
Heyward, Helms complained generally about Kelly’s and also
told Heyward that if she was really unhappy there, Heyward
should look for something else in terms of employment. Hey-
ward responded that if it was that bad at Kelly’s, she would
learn that very quickly and keep moving as she had a son to
care for.
Heyward testified that while she was training with Helms,
two young African-American women came into Kelly’s cele-
brating the fact that they were finishing school. Helms told
Heyward that she was not going to serve them because they
never tipped her. According to Heyward, Helms said that if he
she wanted to wait on them she could do so but that Helms was
not going to do it. According to Heyward, she waited on the
two African-American women, who were there with other peo-
ple. After the African-American customers had paid, Helms
said to her “Let me guess, they did not tip you.” Heyward re-
sponded that they did and they actually tipped well. Heyward
responded that it must be because she was black also. Heyward
responded that she was offended by Helms comment. Heyward
also confirmed, however, that some of the African-American
bouncers who worked at Kelly’s came in to celebrate a birthday
that evening and that Helms served them and was very nice to
them.
I generally found that Heyward was not a credible witness.
Her testimony was often disjointed and not cohesive. She at
times indicated that her testimony was “my interpretation” of
events. As noted above, I found Helms to generally be credible
and I credit her testimony over that of Heyward regarding the
description of events that occurred when Heyward trained with
Helms prior to their discussion of the tip left by the two Afri-
can-American American female customers. I also found parts
of Heyward’s testimony to be implausible. For example, Hey-
ward testified that Helms told her that if she was really unhappy
at Kelly’s, Heyward should look for other employment. There
is nothing in Heyward’s testimony, however, to indicate that
she had ever told Helms that she was unhappy at Kelly’s. Un-
der these circumstances, I find it implausible Helms would tell
Heyward that if she was unhappy at Kelly’s she should look for
other employment.
However, I partially credit Heyward’s testimony with respect
to the discussion between Helms and Heyward regarding serv-
ing the African-American female customer, who was known
not to tip. After carefully considering the testimony of both
Helms and Heyward, I find that Helms pointed out the African-
American female customer referred to earlier and told Heyward
that she was known not to tip the bartenders. Heyward served
that customer and another African- American female customer
who was with her. I specifically find, based upon Helms con-
sistent testimony on this point and the record as a whole, that
Helms never refused to serve the African-American female
customer, but merely indicated that the customer was known
not to tip. However, after Heyward served the two African-
American female customers, I find that Helms asked Heyward,
“Let me guess, I bet they did not tip you” and when Heyward
told her that she had been tipped well, Helms responded that it
must be because Heyward is also black. While Heyward was
not a particularly reliable witness, I do not believe that she
would not invent those specific details. In addition, Helms was
not questioned about what, if any, comments she made about
the tip left by the African-American female customers and
therefore did not specifically deny those statements.
On approximately April 28, Hayward spoke to Angelia
Mitchell and told her that she had another job and was leaving.
When Mitchell asked Heyward her reasons for leaving, Hey-
ward responded by saying generally that she did not think she
was treated well by Flood and Helms. Heyward also indicated
that she felt “negative energy” from Helms because she did not
have anything positive to say about Kelly’s. Heyward also told
Mitchell about the comments described above that Helms had
made to her when she received a tip from the two female Afri-
can-American customers. Heyward also asked Mitchell not to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
tell Helms what she had said about her. Heyward continued work-
ing for Kelly’s for approximately 2 weeks after giving her notice.16
Helms’ Discharge
Helms testified that on April 30, 2015,17 when she reported
to work to start her shift at 5 p.m., Henry asked her to come
downstairs to his office. When they arrived at the office, An-
gelia Mitchell was also present. Shortly thereafter, Eugene
Mitchell also arrived. Eugene Mitchell had a paper in his hand
and said that he had listened to hours of tape and he had heard
what she had said about “us” and had documented it. Eugene
Mitchell told Helms that she had hurt their feelings and that
they would not take that and that she was fired. Eugene Mitch-
ell then left the office.
Angelia Mitchell then told Helms that she was not sure if
Helms knew but that when the security camera system was
updated at Kelly’s, listening devices were also installed and
that they had recorded Helms complaints and that it had hurt
their feelings. Angelia Mitchell then turned to Henry and said
that she did not think that anyone knew that listening devices
had been installed and Henry merely shrugged his shoulders.
Angelia Mitchell then said that Eugene Mitchell wanted to
“clean house” and fire the entire staff because everybody was
making the complaints. Angelia Mitchell further stated that
Eugene Mitchell wanted to close for the weekend and start
fresh on Monday with a new staff, and that she had to talk him
out of it.
According to Helms, Angelia Mitchell then stated that they
had expected friends to come in that night and that she would
be mortified if their friends overheard the employees talking
about their complaints regarding working conditions. Mitchell
stated although it is clear from the tapes that the complaints
discussed between Helms and her coworkers had not been
overheard by customers, she was concerned that they would be
heard that night by her friends.
Helms stated that while she did complain to coworkers about
working conditions she had never talked to any of the guests
about it and that Mitchell would not hear anything like that of
the tapes because it never happened. Helms stated that she did
not understand why she was being fired because she consistent-
ly showed up for work despite having two small children.
Helms also noted that that she always treated customers courte-
ously and had repeat regular customers and brought in a good
amount of money. Helms stated that she was very good at her
job, so why was this happening based on the valid complaints
she had raised. Angelia Mitchell replied that none of that mat-
tered to them. Angelia Mitchell stated that they were a small
family business and the fact that Helms hurt their feelings
meant more than actual job performance.

16 I based these findings on the testimony of Heyward. I do not credit
Angelia’s Mitchell's testimony regarding the conversation between her
and Heyward. Mitchell's testimony is not corroborated by Heyward in
important respects and appears designed to buttress the Respondent's
defense. I specifically discredit Mitchell's testimony that Heyward told
her that Helms refused to serve the customer because she was black and
that Helms was a racist.
17 I take administrative notice of the fact that April 30, 2015, was a
Thursday.
Helms then turned to Henry and said that her complaints
about the scheduling had never been specifically addressed.
Helms told Mitchell and Henry that the Respondent did not
have an open door policy and when she made her complaints,
she was told that they were not going to be treated in the way
that she wanted them to be and that she should keep them to
herself. Helms told Mitchell and the Henry that she had done a
good job and worked hard and that she deserved the shifts that
were not being given to her. Helms stated that there was a con-
stant “walking on eggshells” type of atmosphere at work.
Helms stated that it was frustrating not knowing whether a
scheduled shift would be assigned to a newly hired employee
after she had made child care arrangements. Henry admitted
that Helms had complained to him about shift scheduling and
that he told her that her complaints were not going to be an-
swered in the way she wanted. At that point the meeting ended
and Helms went to get her personal belongings.18 While she
was gathering her belongings, Flood approached her and Helms
told her that she had been fired and that Angelia Mitchell had
told her that the Respondent had recorded employees and heard
them complaining and that it was very likely that Flood was on
the tapes also.
Angelia Mitchell testified that after Heyward told her she
was leaving Kelly’s and spoke to her about Helms, Mitchell “ I
set up a plan to I was going to have to get her (Helms) to admit
that she did not serve a black person and to get it out of her
what happened without disclosing Chelsea.” (Tr. 269.)19
Mitchell testified that she came up with a ruse that the Re-
spondent had listening devices at Kelly’s and then Helms could
not deny what happened. Angelia Mitchell testified she told
Eugene Mitchell about the alleged “racist comment” made by
Helms and what should be done.20 Angelia Mitchell denied
discussing with Eugene Mitchell Helms’ complaints about
scheduling in this conversation.
Angelia Mitchell testified that at the meeting held with
Helms Eugene Mitchell asked Helms if she was unhappy and
what was going on. She testified that Eugene Mitchell asked
Helms if the “kids” and the late night “getting to you.” Angelia
Mitchell also testified that she and Eugene Mitchell told Helms
that she had been “complaining to everyone except the two of
them about the work environment, the late-night college stu-
dents and her job.” (Tr. 178.) According to Angelia Mitchell,
Helms said she was miserable. Angelia Mitchell testified she
then asked Helms if she denied service to a customer she felt
would not tip. Mitchell testified that when Helms denied it,
Mitchell then told Helms that she had her on tape and asked
Helms again if she denied service to someone. Mitchell testi-
fied that she could not remember if she told Helms the custom-

18 Helms consistently denied on cross-examination that her alleged
refusal to serve an African-American customer was brought up in this
meeting.
19 As noted above, I specifically discredit the portion of Angelia
Mitchell's testimony in which she indicated that Heyward reported to
her that Helms refused to serve a black customer and that Helms was a
racist.
20 Angelia Mitchell's testimony does not indicate what she discussed
with Eugene Mitchell regarding what they should do with Helms prior
to the meeting on April 30.
MID-ATLANTIC RESTAURANT GROUP, LLC D/B/A KELLY’S TAPROOM 9
er was a black person. (Tr. 272.) Mitchell testified that Helms
finally admitted that she had not served somebody because they
did not tip. According to Mitchell’s direct testimony, she told
Helms, “I have a lot of people that come in here that are black.
And this lady happened to be black, and you said it to a black
coworker.” According to Mitchell, she then asked Helms what
if it had been an African-American female that she coordinates
functions with at the Villanova University. (Tr. 272.)21 Ac-
cording to Angelia Mitchell, Eugene Mitchell then said that “I
cannot have this, you’re unhappy, we’re unhappy, we cannot
run a business like this. You should not be working here if
you’re this unhappy.” According to Mitchell, Helms said,
“Okay” and then Eugene Mitchell left the meeting. Mitchell
testified that she and her husband did not anticipate that it
would end this way and that it felt like a “mutual separation.”
At this point, Mitchell testified she did not consider Helms an
employee any longer. According to Angelia Mitchell, she then
asked Helms what was going on and Helms said that she was
miserable and felt like she was “walking on an eggshell every
day.” Mitchell further testified that Helms said she was upset
about all the new hires and did not like not knowing when she
was going to be scheduled.
Eugene Mitchell testified in a generalized fashion that before
he met with Helms on April 30, he had received complaints
from her coworkers that she was difficult to work with and that
employees did not want to work at the upstairs bar with her
because she was not pleasant to be around. Eugene Mitchell
also testified that he was aware that Helms raised concerns
about shifts to Henry but testified that they were about her own
shifts and not about other employees. Eugene Mitchell further
testified to a conversation with Angelia Mitchell regarding
information that she had received from Heyward regarding an
African-American patron and the conversation between Hey-
ward and Helms regarding service to that customer. Mitchell
testified that he could not remember the specific statements that
were relayed to him by Angelia Mitchell but that it was “defi-
nitely minority discrimination” in his mind and that they need-
ed to address the issue with Helms. According to Mitchell, his
intention was to address with Helms the specific issue that had
arisen regarding service to the African-Americans patron and to
also address with Helms the complaints from her coworkers
that they did not want to work with her anymore.
Eugene Mitchell testified that when he arrived at Kelly’s on
April 30, Angelia Mitchell, Henry, and Helms were present.
When he arrived, Mitchell said to Helms that he had received
complaints from her coworkers about not wanting to work with
her and that she was not serving customers because she did not
think that she was going to be tipped. Mitchell testified that he
told Helms that there was a surveillance camera and that he and
his wife had heard Helms refusing service when he and his wife
listened to the audio.22 Mitchell testified that he did not bring

21 On cross-examination, however, Angelia Mitchell testified that
she did not say anything to Helms about the customer being an African-
American, a coworker being an African-American, or an African-
American customer who the Mitchells did business with. (Tr. 351–
352.)
22 Mitchell testified that he lied about the presence of an audio re-
cording in order to protect the identity of Heyward.
up Heyward’s name because of her request not to do so. Ac-
cording to Mitchell, he asked Helms what was going on. He
told Helms that it seemed like she was “burned out,” and that
she may be exhausted. He said that he had been doing this for
10 and 12 years and that the “kids” could wear you down and it
was late the school year and it gets difficult. According to
Mitchell, Helms said “You’re right. I should have left a couple
weeks ago. I can’t take it anymore.” According to Mitchell he
said “Okay, I guess were done here.” Mitchell testified that he
assumed that the conversation was over and that “we agreed
that there was no need for her to work there any longer.”
Mitchell then left the meeting, while Angelia Mitchell and Hen-
ry remained with Helms. Mitchell admitted that he did not
bring up the issue of Helms allegedly not serving an African-
American customer at the meeting. (Tr. 292–293.)
Henry testified that on April 30 he was present in his office
for the meeting between the Mitchells and Helms. On direct
examination, Henry testified that there were some questions
about Helms’ behavior and at one point there was discussion
about “discriminatory acts regarding race.” Henry then testified
“At that point when she was asked about that specific piece
about race, she had agreed that she had, how do I put it, done
that act, I guess.” Henry testified that Helms that the reason for
Helms being discharged “was directly tied to the discriminatory
act.” (Tr. 381.) On cross-examination Henry testified he did not
recall anything more specific about the “discriminatory inci-
dent,” but that he did recall that her termination involved a
discriminatory act based on race Henry did recall, however,
Eugene Mitchell telling Helms that she was fired. Henry did not
recall Helms raising at the meeting that shifts were not sched-
uled correctly and that employees were walking on eggshells
and he did not recall Eugene Mitchell leaving the meeting ear-
ly.
I credit Helms testimony regarding what occurred on the
meeting of April 30 to the extent it conflicts with that of the
Respondent’s witnesses. Helms testimony was detailed and
consistent on both direct and cross-examination and was inher-
ently plausible. Helms demeanor while testifying reflected a
sincere desire to tell the truth.
The testimony of the Respondent’s witnesses is not mutually
corroborative and is replete with other impairments that estab-
lish it as unreliable. In the first instance, both Mitchells admit-
ted that they lied to Helms about having audio recording devic-
es at Kelly’s during her termination meeting. The fact that the
Mitchells created an elaborate fiction regarding the installation
of listening devices at the restaurant is indicative of their un-
trustworthiness as witnesses. I do not accept that the Mitchells
wanted to keep Heyward’s name out of the discharge meeting
as a reasonable explanation for this falsehood. Simply not di-
vulging Heyward’s name was would suffice if that was truly a
concern of the Mitchells. Eugene Mitchell admitted, however,
that he never even brought up the issue of Helms allegedly not
serving an African Americans customer while he was in the
meeting. Based on inferences drawn from the record as a
whole, I find that the Mitchells concocted a false statement
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
regarding surreptitious taping equipment at Kelly’s in order to have
Helms believe that her protected statements to other employees at
work regarding working conditions were secretly recorded.
I find Angelia Mitchell’s testimony to be internally incon-
sistent. Angelia Mitchell initially testified on direct exam that
she could not remember if she told Helms that the customer that
Helms allegedly did not serve because the customer did not tip
was black. Later in her direct testimony, Mitchell testified that
she told Helms that the customer was black and that Helms told
a black coworker that she would not serve the customer. Mitch-
ell then added that she asked Helms what if the black customer
had been the black woman that Mitchell worked with in coor-
dinating parties for Villanova University. On cross examina-
tion, however, Mitchell completely reversed course and testi-
fied that she did not say anything to Helms about the customer
being black, a coworker being black, or a black customer the
Mitchells did business with. Testimony of this type containing
such a fundamental internal inconsistency is not a reliable basis
on which to make factual findings.
Henry’s testimony was devoid of any details and conflicted
in a substantial way with the testimony of the Mitchells. As
noted above, Henry testified that Helms was discharged by
Eugene Mitchell for a discriminatory act based on race. The
Mitchells referred to the meeting with Helms as resulting in a
“mutual separation” while Henry testified that Helms was dis-
charged by Eugene Mitchell. Henry’s testimony also conflicts
with that of Eugene Mitchell on whether or not the issue of race
came up in the meeting.
I find that the conflicting version of events from the Re-
spondent’s witnesses too unreliable on which to base factual
findings. In addition, based on the record as a whole, I find it
implausible that after weeks of trying to obtain what she be-
lieved to be an appropriate schedule based on her seniority, that
Helms was suddenly state that she agreed with Eugene Mitchell
that she was “burned out,” and that she should have left weeks
and ago and could not take it anymore.
On the basis of the foregoing, I find, based on Helms’ credi-
ble testimony and admissions made by the Mitchells that at the
meeting held on April 30, 2015, Helms was informed by Eu-
gene Mitchell he had listened to recordings regarding what
Helms had said about the Mitchells. Both he and Angelia
Mitchell told Helms that she had been complaining to everyone
“except the two of them” about the work environment and her
job. Eugene Mitchell said that it had hurt their feelings and they
were not going to take it and she was fired.23
After Eugene Mitchell left the office, Angelia Mitchell then
indicated that when the security system was updated, audio
listening devices were also installed and had recorded Helms
complaints and that it had hurt their feelings. Mitchell then told
Helms that they were aware that the entire staff was complain-
ing about working conditions and that Eugene Mitchell wanted
to “clean house” and fire everyone because of it, but she had
talked him out of it. Angelia Mitchell then said that they had
expected friends to come in that night and would be mortified if
their friends overheard the employees talking about their com-

23 The record contains no documents reflecting the reasons for
Helms’ discharge.
plaints regarding working conditions. Helms stated that while
she did complain to coworkers about working conditions, she
had never talked to any of the customers about it.
Helms stated she did not understand why she was being fired
because she always showed up for work, and was very good at
her job. Helms asked why this was happening to her based on
making valid complaints. Angelia Mitchell replied that none of
that mattered to them and that they were a small family busi-
ness and the fact that Helms hurt their feelings meant more than
actual job performance.
Helms then stated that she had made complaints about the
scheduling of shifts and was told that they were not going to be
treated in the way that she want them to be and that she should
keep them to herself. Helms also reiterated her frustration re-
garding the scheduling of shifts, such as not knowing when you
would work and having a scheduled shift allotted to a newly
hired employee. Henry admitted that Helms had complained to
him about scheduling and that he told her that her complaints
were not going to be answered in the way that she wanted.
I also find that there was no mention made by either of the
Mitchells at this meeting of Helms alleged refusal to serve an
African-American customer before the meeting ended. This
finding is supported by Eugene Mitchell’s admission that he did
not bring up the subject at the meeting and Helms’ credible
testimony. I discredit the testimony of Angelia Mitchell that the
subject was raised based upon the substantial conflict between
her testimony on direct examination and her testimony on
cross-examination regarding this point. I also discredit the tes-
timony of Henry that Helms was discharged because of a dis-
criminatory act based on race because of the complete lack of
detail in his testimony and the fact that it is not corroborated by
any other credible evidence. I also rely on the fact that his de-
meanor while testifying reflected substantial uncertainty.
The Contentions of the Parties
The General Counsel contends that the Respondent dis-
charged Helms on April 30, 2015, because she and other em-
ployees complained about shift schedules in violation of Sec-
tion 8(a) and (1) of the Act. The General Counsel argues that
that pursuant to the Board’s decision in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
den. 455 U.S. 989 (1982), approved in NLRB v. Transportation
Corp., 462 U.S. 393 (1983), a prima facie case has been estab-
lished that the motivation for Helms’ discharge was her pro-
tected concerted activity and the Respondent has not rebutted
the prima facie case by establishing that it would have taken the
same action against Helms in the absence of those activities.
The Respondent principal argument is that any complaints
that Helms raised involved only her own “position and inter-
ests” and did not constitute protected concerted activity under
the Act and that consequently her discharge was lawful. In
support of its position the Respondent relies principally on
MCPc, Inc. v. NLRB, 813 F.3d 475 (2016), vacating and re-
manding 360 NLRB No. 39 (2014).
The Respondent also contends that assuming that Helms en-
gaged in protected concerted activity, the General Counsel has
not established a prima facie case that such activity was a moti-
vating factor for Helms’ discharge under the test set forth in
MID-ATLANTIC RESTAURANT GROUP, LLC D/B/A KELLY’S TAPROOM 11
Wright Line, supra. In this connection, the Respondent contends
that many employees have contacted Angelia Mitchell regard-
ing scheduling issues without being subject to retaliation. Final-
ly, the Respondent contends that even if the General Counsel
has established a prima facie case under Wright Line, it pre-
sented evidence that it would have taken the same action to-
ward Helms in the absence of such activity. The Respondent
contends that it lawfully discharged Helms because she made
“racist statements and refused to serve African-American cus-
tomers” and that she displayed a “negative attitude” that ad-
versely affected other employees. (R. br., pp. 28–29.)
Analysis
In order to be protected under Section 7 of the Act, employee
conduct must be both “concerted” and engaged in for the pur-
pose of “mutual aid or protection.” Fresh & Easy Neighbor-
hood Market, Inc., 361 NLRB No. 12, slip op. at 3 (2014).
In Meyers Industries, 268 NLRB 493, 497 (1984) (Meyers I),
remanded sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir.
1987), cert denied 487 U.S. 1205 (1988), the Board explained
held that “to find an employee’s activity to be ‘concerted’ we
shall require that it be engaged in with or on the authority of
other employees, and not solely by and on behalf of the em-
ployee himself.” Following the remand from the United States
Court of Appeals for the District of Columbia Circuit, in Mey-
ers Industries, 281 NLRB 882, 887 (1986) (Meyers II), enfd.
sub nom. 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S.
1205 (1988), the Board reaffirmed the standard regarding con-
certed activity that it set forth in Meyers I but clarified that it
“encompasses those circumstances where individual employees
seek to initiate or to induce or to prepare for group action, as
well as individual employees bringing truly group complaints
to the attention of management.”
It is also clearly established that concerted activity is not de-
pendent on a shared objective by the employees involved, or on
the agreement of one’s coworkers with what is proposed. In
addition, an employee may act partly from self-interested moti-
vation and still be engaged in concerted activity. Fresh & Easy
Neighborhood Market, supra, slip op. at 4, and cases cited
therein. In Worldmark by Wyndham, 356 NLRB 765, 766
(2011), the Board held that any doubt about whether an em-
ployee’s discussion of employment conditions with an employ-
er is concerted is removed when other employees join in that
discussion At that point, the employee’s actions become “in-
controvertibly concerted” under Meyers because at that point
the actions are undertaken “with . . . other employees.” (268
NLRB at 497.)
In Fresh & Easy Neighborhood Market, supra, slip op. at 3,
the Board noted that “The concept of ‘mutual aid or protec-
tion,” focuses on the goal (emphasis in the original) of concert-
ed activity; chiefly whether the employee or employees in-
volved seek to “improve terms and conditions of employment
or otherwise improve their lot as employees.” Eastex, Inc. v.
NLRB 437 U.S. 556, 565 (1978). In Fresh & Easy Neighbor-
hood Market, the Board noted that it had found a broad range of
employee activities regarding terms and conditions of employ-
ment to fall in the scope of mutual aid or protection. In this
regard, the Board noted that it “has found that an employee
who asked for help from coworkers in addressing an issue with
management, does, indeed, act for the purpose of mutual aid or
protection, even where the issue appears to concern only the
soliciting employee, the soliciting employee would receive the
most immediate benefit from a favorable resolution of the is-
sue, and the soliciting employee does not make explicit the
employees’ mutuality of interests.” Id. slip. op. at 5 and cases
cited therein.
In Aroostook County Regional Ophthalmology Center, 317
NLRB 218, 220 (1995), enf. denied in relevant part on other
grounds, 81 F.3d 209 (D.C. Cir. 1996), the Board held that the
discussions and complaints of four employees regarding
schedule changes constituted protected concerted activity and
their discharge for engaging in such conduct violated Section
8(a)(1) of the Act.24 In finding the employees discussions and
complaints to be protected concerted activity, the Board noted
that changes in work schedules are directly linked to hours and
conditions of work - vital conditions of employment- and em-
ployee discussion of such issues were likely to lead to collec-
tive action.
Applying these principles to the instant case, it is clear that
Helms was engaged in protected concerted activity when she
discussed the schedule and shift changes with other employees
and with the Respondent’s acknowledged supervisors.
In mid-April 2015, Bevevino’s announced departure and the
hiring of new bartenders spurred additional concerns about
scheduling among the existing bartenders. In this connection,
Helms, Flood, and Clark discussed what they viewed as incon-
sistent scheduling and what they could do about it. The three
employees specifically discussed concerns that the new em-
ployees would be assigned the prime shifts starting at 5 p.m. on
Thursday, Friday, and Saturday. The three employees discussed
the effect this would have on their ability to obtain as many
hours as possible on the prime shifts before the busy season at
Kelly’s ended after the first week of June.
In mid-April 2015, Helms and Flood met with Henry in the
manager’s office at the basement of Kelly’s and jointly present-
ed their concerns about the scheduling of shifts. Both employ-
ees specifically noted that with the changes in the schedule that
were going to occur after Bevevino left, they wanted to make
sure that senior bartenders, including the two of them would
receive the prime shifts starting at 5 p.m. on Thursday, Friday,
and Saturday night. Also in April 2015, Helms and Healy met
with Henry in the bar area on the second floor of Kelly’s and
again raised issues regarding the schedule. Healy told Henry
that since he had more seniority as a bartender, he wanted to be
given more bartending shifts before they were given to the
newly hired bartenders. Helms noted a general feeling of frus-
tration among the more senior bartenders and the concern that
the new hires would receive the prime shifts, or be put on the
shift that more senior bartenders had been working, causing
them to be removed from the schedule.
In addition to the meetings that she had with other employ-

24 In denying enforcement of this portion of the Board's order the
court found that, assuming arguendo, the employees were engaged in a
form of concerted activity, their conduct was not protected under the
Act because it occurred in in the presence of patients. 81 F.3d at 214.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
ees and Henry, Helms had approximately four other discussions
with Henry about the scheduling of bartenders. In each of these
conversations, she told Henry that concerns about scheduling
was not hers alone but that other bartenders were unsure of
their positions and it was causing anxiety among them.
It is clear that Helms discussions with Flood and Clark re-
garding scheduling is concerted protected activity pursuant to
the Board’s decision in Aroostook, supra. The meetings that
Helms had with Lang and Henry at which other employees
were present and concerns were raised by the employees re-
garding the scheduling of shifts constituted “incontrovertibly
concerted” activity pursuant to the principles expressed in Mey-
ers I and Worldmark by Wyndham.
The fact that at the meetings that Helms, Fairley, and Healy
held with Lang in October 20, 2014, and the meeting that
Helms and Healy had with Ryan in mid-April 2015 the em-
ployees raised individual issues regarding scheduling does not
detract from the fact that, on a collective basis, they were rais-
ing concerns about working condition and thus were engaged in
protected concerted activity. Fresh & Easy Neighborhood Mar-
ket, supra slip op. at 4.
I do not agree with the Respondent’s position that the deci-
sion of the United States Court of Appeals for the Third Circuit
in in MCPc, Inc., supra, requires a finding that Helms was not
engaged in protected concerted activity. In MPCc, Inc., 360
NLRB No. 39 (2014), the Board found that the respondent
violated Section 8(a)(1) of the Act by discharging an employee
for engaging in protected concerted activity. In that case during
a group meeting conducted by a respondent supervisor, the
participants discussed the employees’ heavy workload and one
employee, Galanter, urged the respondent to hire additional
engineers to alleviate the work load. In support of this point, the
Galanter mentioned that the respondent had hired a corporate
executive at a $400,000 salary that could have been used to
hire additional engineers. Two other employees present at the
meeting expressed agreement with Galanter. The Board found
that Galanter engaged in protected concerted activity when
discussing with other employees terms a condition of employ-
ment, pursuant to the principles set forth in Meyers II and
Worldmark of Wyndham. In doing so, the Board noted that it
had consistently found activity concerted when a single em-
ployee protests changes to employment terms common to all
employees in front of the coworkers. The Board also noted that
the discussion about employee workload’s occurred at a meet-
ing involving team building and that two other employees par-
ticipated in the discussion by expressing agreement with the
latter’s comments. Id.at slip op. 1.
In its decision, the Third Circuit, after considering its own
relevant precedent, including Mushroom Transportation Co. v.
NLRB, 330 F.2d 683 (3d Cir. 1964), and that of the Board, con-
cluded, in agreement with the Board, that Galanter had engaged
in concerted protected activity. (813 F.3d 482–487.) However,
the court vacated the Board’s decision and remanded it to the
Board for further consideration of the Respondent’s defenses
under Wright Line.
I am, of course, obligated to apply Board precedent in decid-
ing the allegations of the complaint, Pathmark Stores, Inc. 342
NLRB 378, 378 fn. 1 (2004); Waco, Inc. 273 NLRB 746, 749
fn. 14 (1984). Thus, I must apply the rationale of the Board’s
decision in MPCc in resolving the issues presented by the in-
stant case. Since in its decision In MPCc, the Third Circuit
agreed with the Board’s analysis of whether Galanter engaged
in protected concerted activity, I do not find that the court’s
decision in any way supports the Respondent’s contention in
the instant case that Helms did not engage in concerted protect-
ed activity. Accordingly, on the basis of all of the foregoing, I
find that Helms was engaged in protected concerted activity
when she presented employee concerns to the Respondent’s
supervisors regarding the scheduling of bartenders’ shifts.
The Board applies the analysis of Wright Line, supra, to
8(a)(1) allegations that turn on motive. Ferguson Enterprises,
supra, at 1121 fn. 3; State Plaza Hotel, 347 NLRB 755 (2006).
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), the Board established a framework for deciding cases
turning on employer motivation regarding an adverse employ-
ment action taken against an employee. To prove an employer’s
action is discriminatorily motivated and violative of the Act,
the General Counsel must first establish, by a preponderance of
the evidence, an employee’s protected conduct was a motivat-
ing factor in the employer’s decision. The elements commonly
required to support such a showing are union activity by the
employee, employer knowledge of the activity, and antiunion
animus on the part of the employer. If the General Counsel is
able to establish a prima facie case of discriminatory motiva-
tion, the burden of persuasion shifts “to the employer to
demonstrate the same action would have taken place even in
the absence of the protected conduct.” Wright Line, supra at
1089. Accord: Mesker Door, Inc., 357 NLRB 591, 592 (2011).
In the instant case, as discussed in detail above, Helms clear-
ly engaged in protected concerted activity when she raised
complaints about scheduling with, and on behalf of, other em-
ployees to admitted Supervisors Lang and Henry.
With regard to whether the Respondent had knowledge of
the protected concerted complaints made by Helms regarding
the scheduling of the employees at Kelly’s, Helms credited
testimony establishes that, along with other employees, she
presented scheduling complaints to both Lang and Henry.
Board law is clear that a supervisor’s knowledge of protected
activity is imputed to the Respondent, absent credible evidence
to the contrary. State Plaza Hotel, supra, at 755–757 (2006);
Dobbs International Services, 335 NLRB 972, 972–973 (2001).
As noted above, Lang did not testify in this matter. Henry’s
testimony regarding his meetings with Helms in which she
presented scheduling complaints was vague and I do not credit
it. In this regard, Henry testified that he recalled on at least one
occurrence Helms raised concerns about her scheduling and
wanted a particular schedule but he did not recall she raised
concerns about the schedules of other employees. Accordingly,
there is no credible evidence that Lang and Henry did not con-
vey that Helms’ complaints about scheduling were raised with,
and on behalf of, other employees.
As noted above, Eugene Mitchell admitted that around the
time that the new bartenders were hired in mid April 2015, he
was informed by Henry that Helms was complaining about shift
MID-ATLANTIC RESTAURANT GROUP, LLC D/B/A KELLY’S TAPROOM 13
scheduling to other employees and that she had complained
about shift scheduling to him. Eugene Mitchell denied, howev-
er, being aware of concerns that Helms raised to management
about other employees’ shifts. Angelia Mitchell admitted that
she was aware of the concerns that Helms and Flood had re-
garding the shifts they would be assigned because of the hiring
of the new bartenders in mid-April 2015 and that both employ-
ees had expressed those concerns to Henry. Angelia Mitchell
also admitted that she received an email from Henry at this time
reflecting that Helms and Flood were concerned about their
shifts. Angelia Mitchell also denied that she was aware that the
concerns were anything more than each employee’s complaint
about their individual schedule.
I find that the Mitchells had knowledge of the protected con-
certed nature of Helms complaints about the scheduling of bar-
tenders at Kelly’s before she was discharged. Based on the
admissions discussed above alone, I believe that there is suffi-
cient evidence to establish the Mitchells knowledge of the con-
certed nature of Helms’ complaints about the scheduling of
shifts at Kelly’s. The Board’s decisions in Meyers I, supra, and
Worldmark by Wyndham, establish that an employee’s actions
are concerted when they are undertaken with other employees.
In the instant case both Mitchells admitted that they were aware
that Helms undertook her activities regarding complaints about
the schedule with other employees. In addition, I specifically do
not credit the denials of both Mitchells that they were unaware
of the concerted nature of Helms’ complaints regarding the
scheduling of bartenders at Kelly’s as I find it implausible
when I consider it in conjunction with the other evidence dis-
cussed above on this issue. In reaching this conclusion, I specif-
ically note that the credited testimony of Helms establishes that
at the April 30 meeting with Helms, Angelia Mitchell stated
that she and her husband were aware that the entire staff was
complaining about working conditions and that they would be
mortified if their friends overheard the employees talking about
their complaints regarding working conditions.
There is evidence to establish that the Respondent harbored
animus regarding protected concerted complaints regarding
working conditions at Kelly’s. In this regard, Lang told Helms
and two other employees in October 2014, when they com-
plained to her as a group about scheduling issues, that com-
plaining about scheduling was not going to get the employees
anywhere and that Eugene Mitchell, “would lose his shit” if
employees brought scheduling issues to him. In December 2014
Lang told Helms that if she complained to the Mitchells about
the schedule, Lang would be told to take shifts away from
Helms. In mid-April 2015, Henry told Helms and Flood that
bringing their complaints regarding the scheduling of bartend-
ers to the attention of the Mitchells would result in the loss of
shift hours and a loss of shifts altogether. Also in mid-April, in
a meeting that Henry had with Helms and Healy, Henry told
Helms that sending an email to Eugene Mitchell indicating that
she had earned better shifts because of her good work would
not get her anywhere and was just going to anger Eugene
Mitchell. Finally, at the April 30 meeting at which Helms was
discharged, Angelia Mitchell told Helms that Eugene Mitchell
wanted to “clean house” and fire all of the employees because
of their complaints about working conditions but she had talked
him out of it.
In addition to the explicit evidence regarding animus toward
concerted employee complaints regarding working conditions, I
note that the Respondent’s handbook displays an antipathy to
employee complaints about working conditions. The handbook
states that an employee can be disciplined, up to and including
discharge, for conduct “which adversely affects the reputation
or business activities, of the restaurant. The handbook specifi-
cally lists as an example of such conduct “Criticizing, con-
demning, or complaining in a manner that affects employee
morale.”
I also draw the inference that Helms’ discharge was discrim-
inatorily motivated based on the timing of Helms precipitous
discharge shortly after her series of protected concerted com-
plaints to Henry regarding the scheduling of employees. The
Board has clearly held that circumstantial evidence, such as the
timing of an adverse action, supports an inference of unlawful
motivation. Mesker Door Inc., 357 NLRB 591, 592 (2011);
Sears, Roebuck & Co., 337 NLRB 443, 445 (2002).
The Respondent contends, however, that many other em-
ployees have contacted Angelia Mitchell and Eugene Mitchell
about scheduling and have not been disciplined or retaliated
against for doing so. In this regard, the Respondent introduced
into evidence a substantial number of the emails (R. Exh. 3)
from employees for the period from May 1, 2014 through the
end of May 2015, that were primarily sent to Angelia Mitchell.
A few were sent to Eugene Mitchell. These communications
involve, for the most part, routine requests for days off, and the
responses from the Mitchells. There is one email dated October
22, 2014, from Eugene Mitchell to “Kris Ale House” that in-
volves a scheduling issue but this email involves scheduling at
the “Ale house” and makes no reference to Kelly’s. (R. Exh. 3.
p. 61).
The Respondent also introduced into evidence a number of
text messages that were sent to Angelia Mitchell’s phone and
her replies to those messages for the period from May 20, 2015,
to March 20, 2016. (R. Exh. 4.) These messages involved mat-
ters involving the everyday operations at Kelly’s. To the extent
that they involve scheduling, the messages from employees
reflect routine notifications such as being late work or covering
the shift of another employee.
None of the emails or text messages introduced by the Re-
spondent involved concerted protected complaints by employ-
ees regarding perceived problems regarding the manner in
which the Respondent scheduled employees at Kelly’s. I find
that the Respondent’s evidence establishing that employees sent
emails an text messages to the Mitchells regarding routine mat-
ters at Kelly’s is insufficient to rebut the evidence discussed
above establishing the Respondent’s animus toward the lodging
of protected concerted complaints about scheduling.
Based on the foregoing, I find that the General Counsel has
met his initial burden of persuasion and established a prima
facie case of discriminatory motivation as required under
Wright Line. I now consider whether the Respondent has met
its burden to establish that it would have taken the same action
against Helms, in the absence of her protected concerted activi-
ty.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
In its brief the Respondent asserted that it had a lawful basis
on which to discharge Helms because she made racist state-
ments and refused to serve an African-American patron. As I
have found above, there is no credible evidence that the Re-
spondent questioned Helms about her conduct regarding that
incident or that it notified her that such conduct was the basis
for her discharge on April 30, 2015. In fact, Eugene Mitchell
admitted that he never raised the issue of race at this meeting,
let alone told Helms that this was the basis for discharge
Under all circumstances present in this case, I find that the
Respondent’s reliance on Helms alleged racist comment and
refusal to serve an African Americans customer is pretextual.
As noted above, the credited testimony establishes that Helms
merely pointed out a customer and informed Hayward that the
customer, who was an African-American female, was known
not to tip. Helms did not indicate that she would not serve the
customer. After Heyward served that customer and her com-
panion, another African-American female, Helms asked Hey-
ward if she had received a tip and when Heyward indicated that
she did and that it was a good one, Helms replied that it must be
because Heyward is also black.
Rather than investigate the circumstances of this incident re-
garding the service to the African-American customer and
comments made by Helms to Heyward about the tip that he
would receive, the credited evidence establishes that the Re-
spondent abruptly terminated Helms and never raised this inci-
dent with Helms when she was terminated. As further support
for my conclusion that this asserted reason for Helms discharge
is pretextual. I note the record clearly establishes that the prac-
tice of not serving a customer quickly because the customer
was known not to tip was well known to the Mitchells. In addi-
tion, the manner in which, Eugene Mitchell addressed the cus-
tomer complaint that bartender Sarah Clark refused to serve the
customer because he failed to tip, establishes that the Respond-
ents normal approach to such a situation is to give the employ-
ee involved an opportunity to give an explanation regarding
the circumstances of such an incident.
The Respondent also argues that it lawfully discharged
Helms because she displayed a “negative attitude” that adverse-
ly affected other employees. I also find that the Respondent’s
reliance on this asserted reason for Helms discharge is pre-
textual. There is again no credible evidence that the Respondent
ever advised Helms of any complaints that other employees had
made about working with her prior to her discharge in order to
give her an opportunity to address such complaints.. There is
also no credible evidence that she was advised that a complaint
by coworkers about her was a reason for her discharge on April
30.
The Board has held that the failure to tell an employee the
asserted reason for an adverse employment action is a factor to
be considered in determining whether an employer has estab-
lished a valid defense under Wright Line. D & F Industries,
339 NLRB 618, 622 (2003). The Board has also found that an
employer’s failure to conduct a fair and full investigation and
give an employee the opportunity to explain his or her actions
before imposing discipline is a significant factor in finding
discriminatory motivation. Publishers Printing Co., 317 NLRB
933, 938 (1995), enfd. 106 F.3d 41 (6th Cir. 1996).
In the instant case, the evidence convinces me that the inci-
dent involving the service to the African-American female
customer and the comments made by Helms to Heyward re-
garding why Helms believed that Heyward received a tip
played no role in the decision to discharge Helms. Rather, it is a
pretext designed to mask the Respondent’s discriminatory mo-
tive. I further find that the Respondent’s claim that it lawfully
discharged Helms because she displayed a negative attitude that
adversely affected other employees is also pretextual. On the
basis of the foregoing, I find that the Respondent has not met its
burden to establish under Wright Line that it would have dis-
charged Helms if she had not engaged in protected concerted
activity. Accordingly, I find that the Respondent discharged
Helms because of her protected concerted activities in violation
of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. By discharging Robin Helms on April 30, 2015, the Re-
spondent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, having discriminatorily discharged Robin
Helms, must offer her reinstatement and make her whole for
any loss of earnings and other benefits. Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
Additionally, the Respondent must compensate Helms for
the adverse tax consequences, if any, of receiving a lump-sum
backpay award and file with the Regional Director for Region
4, within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar year(s). AdvoServ
of New Jersey, Inc., 363 NLRB No. 143 (2016).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended25
ORDER
The Respondent, Mid-Atlantic Restaurant Group LLC d/b/a
Kelly’s Taproom, Bryn Mawr, Pennsylvania, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against employ-
ees because they engage in protected concerted activity in order
to discourage employees from exercising their rights under the
Act.

25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
MID-ATLANTIC RESTAURANT GROUP, LLC D/B/A KELLY’S TAPROOM 15
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
employee Robin Helms full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any other rights or
privileges previously enjoyed.
(b) Make Robin Helms whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
her in the manner set forth in the remedy section of the deci-
sion.
(c) Compensate Robin Helms for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and
file with the Regional Director for Region 4, within 21 days of
the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the ap-
propriate calendar year
(d) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge, and
within 3 days thereafter, notify Robin Helms in writing that this
has been done and that the discharge will not be used against
her in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Bryn Mawr, Pennsylvania, copies of the attached no-
tice marked “Appendix.”26 Copies of the notice, on forms pro-
vided by the Regional Director for Region 4, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. In addition to physical posting
of paper notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at

26 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
any time since April 30, 2015.
(g)Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. June 13, 2016.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge or otherwise discriminate against
any of you for engaging in activities on behalf of, or in support
of, your fellow employees regarding wages, hours, and other
terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Robin Helms 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 pre-
viously enjoyed.
WE WILL make Robin Helms whole for any loss of earnings
and other benefits resulting from her discharge, less any net
interim earnings, plus interest compounded daily.
WE WILL compensate Robin Helms for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay award, and
file with the Regional Director for Region 4, within 21 days of
the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the ap-
propriate calendar year.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Robin
Helms, 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.
MID-ATLANTIC RESTAURANT GROUP LLC
KELLY’S TAPROOM
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
The Administrative Law Judge's decision can be found at
www.nlrb.gov/case/04-CA-162385 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.