Wallingford's Favorite Chicken, LLC d/b/a Popeye's Chicken and Biscuits

National Labor Relations Board - Board Decisions

Nov 8, 2012

359 NLRB No. 16 (N.L.R.B. 2012)

359 NLRB No. 16
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.
Wallingford’s Favorite Chicken, LLC d/b/a Popeye’s
Chicken and Biscuits and Krystal Jones. Case
34–CA–084087
November 8, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HAYES
AND GRIFFIN
The Acting General Counsel seeks a default judgment
in this case on the ground that the Respondent has failed
to file an answer to the complaint. Upon a charge and an
amended charge filed by Krystal Jones, the Charging
Party, on June 27 and August 30, 2012, respectively, the
Acting General Counsel issued a complaint and notice of
hearing on August 31, 2012, against Wallingford’s Fa-
vorite Chicken, LLC d/b/a Popeye’s Chicken and Bis-
cuits, the Respondent, alleging that it has violated Sec-
tion 8(a)(1) of the Act. The Respondent failed to file an
answer.
On October 3, 2012, the Acting General Counsel filed
a Motion for Default Judgment and memorandum in
support with the Board. Thereafter, on October 5, 2012,
the Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed no re-
sponse. The allegations in the motion are therefore un-
disputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively stated
that unless an answer was received by September 14,
2012, the Board may find, pursuant to a motion for de-
fault judgment, that the allegations in the complaint are
true. Further, the undisputed allegations in the Acting
General Counsel’s motion disclose that the Region, by
fax and email dated September 18, 2012, notified the
Respondent that unless an answer were received by Sep-
tember 25, 2012, a motion for default judgment would be
filed. In addition, on October 1, 2012, at the Respon-
dent’s request, the Acting General Counsel faxed the
Respondent an additional copy of the complaint and no-
tice of hearing. Nevertheless, the Respondent failed to
file an answer.
In the absence of good cause being shown for the fail-
ure to file an answer, we grant the Acting General Coun-
sel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been en-
gaged in the preparation and retail sale of food, and has a
facility located in Wallingford, Connecticut (the Wal-
lingford facility). During the 12-month period ending
July 31, 2012, the Respondent, in conducting its opera-
tions described above, purchased and received at the
Wallingford facility goods valued in excess of $50,000
directly from points located outside the State of Con-
necticut.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times the following individuals held the
positions set forth opposite their respective names and
have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act, and agents of the
Respondent with the meaning of Section 2(13) of the
Act:
Miguel Rios Owner/Manager
Elizabeth Rosario1 General Manager, Walling-
ford Facility
At all material times, Krystal Jones and Sheena
Woodall have been employees of the Respondent at the
Wallingford facility.
About June 15, 2012, Jones was informed by Rosario
that she was discharged for work related reasons, and
shortly thereafter she was told by Rosario that she was
not discharged and thereafter, continued working for the
Respondent at the Wallingford facility.
About June 15, 2012, Woodall learned through a co-
worker that she had been discharged from the Walling-
ford facility for work-related reasons.
About June 16, 2012, Woodall contacted the Respon-
dent by telephone to complain about her discharge as
well as other matters involving the terms and conditions
of the Respondent’s employees at the Wallingford facil-
ity, including Rosario’s conduct towards employees at
the Wallingford facility.

1 Rosario’s name is misspelled in the complaint. We correct the er-
ror.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
About June 16, 2012, the Respondent, through
Rosario, by telephone, informed Jones that Woodall and
Jones were discharged because of Woodall’s complaint
described above.
About June 16, 2012, the Respondent discharged
Jones.
About June 16, 2012, the Respondent refused to re-
employ Woodall.
The Respondent discharged Jones and refused to re-
employ Woodall because the Respondent mistakenly
believed that Jones and Woodall had engaged in pro-
tected concerted activities, and to prevent Jones and
Woodall from engaging in similar conduct in the future,
and to discourage employees from engaging in these ac-
tivities.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been interfering with, restraining, and coercing employ-
ees in exercise of the rights guaranteed them by Section 7
of the Act in violation of Section 8(a)(1) of the Act. The
Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(1) of
the Act by discharging Krystal Jones and refusing to re-
employ Sheena Woodall, because the Respondent mis-
takenly believed that they had engaged in protected con-
certed activities and to prevent them from engaging in
such activities in the future, and to discourage employees
from engaging in these activities, we shall order the Re-
spondent to offer Jones and Woodall full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed and to make Jones and Woodall whole for any loss
of earnings and other benefits suffered as a result of the
Respondent’s unlawful actions against them. Backpay
shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB No. 8 (2010). The Respondent
shall also be required to remove from its files any refer-
ence to the unlawful discharge of Jones and the unlawful
refusal to re-employ Woodall, and to notify them in writ-
ing that this has been done and that the discharge and
refusal to rehire will not be used against them in any
way.
ORDER
The National Labor Relations Board orders that the
Respondent, Wallingford’s Favorite Chicken, LLC d/b/a
Popeye’s Chicken and Biscuits, Wallingford, Connecti-
cut, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Informing employees that they are discharged be-
cause employees complained to the Respondent about
terms and conditions of employment.
(b) Discharging or refusing to re-employ employees
because the Respondent believes they have engaged in
protected concerted activities and to prevent them from
engaging in similar conduct in the future, and to discour-
age employees from engaging in these activities.
(c) 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
Krystal Jones and Sheena Woodall full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Krystal Jones and Sheena Woodall whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge of Krystal Jones and the unlawful refusal to re-
employ Sheena Woodall, and within 3 days thereafter,
notify them in writing that this has been done and that
the unlawful discrimination will not be used against them
in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.
(e) Within 14 days after service by the Region, post at
its facility in Wallingford, Connecticut, copies of the
POPEYE’S CHICKEN & BISCUITS 3
attached notice marked “Appendix.”2 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 34, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily 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.3 Reasonable steps shall be taken by the Respon-
dent 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 involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 16, 2012.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. November 8, 2012
Mark Gaston Pearce, Chairman
Brian E. Hayes, Member
Richard F. Griffin, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

2 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.”
3 For the reasons stated in his dissenting opinion decision in J.
Picini Flooring, 356 NLRB No. 9 (2010), Member Hayes would not
require electronic distribution of the notice.
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT inform you that you are discharged be-
cause employees complained to us about terms and con-
ditions of employment.
WE WILL NOT discharge or refuse to re-employ you be-
cause we believe you have engaged in protected con-
certed activities, or to prevent you from engaging in
similar conduct in the future, or to discourage other em-
ployees from engaging in these 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 this Order,
offer Krystal Jones and Sheena Woodall full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
WE WILL make Krystal Jones and Sheena Woodall
whole for any loss of earnings and other benefits suffered
as a result of our discrimination against them, with inter-
est.
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 Krystal Jones and the unlawful refusal to
re-employ Sheena Woodall, and WE WILL, within 3 days
thereafter, notify them in writing that this has been done
and that the unlawful discrimination will not be used
against them in any way.
WALLINGFORD’S FAVORITE CHICKEN, LLC
D/B/A POPEYE’S CHICKEN AND BISCUITS