Papa’s Penn Inc. d/b/a Papa John’s

National Labor Relations Board - Administrative Judge Opinions

Aug 18, 2016

29-CA-169864 (N.L.R.B. Aug. 18, 2016)

JD(NY)-31-16
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
PAPA’S PENN INC. d/b/a
PAPA JOHN’S
and Case 29-CA-169864
FAST FOOD WORKERS COMMITTEE
Kimberly A. Walters Esq.,
for the General Counsel.
Jean Morace, President of the
Respondent.
Ceildih B. Gao Esq., counsel for the
the Charging Party.
Decision
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case in Brooklyn, New York,
on July 7, 8, and 11, 2016. The charge was filed on February 17, 2016, and the complaint was
issued on May 20, 2016. In substance, the complaint alleged that on or about February 12,
2016, the Respondent discharged Jesse Scott because he supported the Union and engaged in
concerted activities.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following
Findings and Conclusions
I. Jurisdiction
It is admitted and I find that the Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. The Charging Party is a community
organization that is involved in a variety of social issues. It is not clear to me that it actually
exists for the purpose, in whole or in part, of representing employees in collective bargaining.
Nevertheless, its status as a labor organization is not really critical to this case.
II. The Alleged Unfair Labor Practice
The Respondent’s owner is Jean Morace. He is a franchisee of Papa John’s Pizza and
he operates one store in Brooklyn, New York. His store manager is Juan Otero and as he has
the power to hire and fire, I find that he is a supervisor within the meaning of Section 2(11) of
the Act. The store employs about 8 or 9 drivers and two individuals who make the pizzas.
Jesse Scott was employed at this store on two occasions. On the first occasion he was
discharged in 2013. He was rehired in November 2014 as a driver. In this capacity he worked
JD(NY)-31-16
2
Fridays, Saturdays, and Sundays, either from 6 p.m. to midnight or to 1 a.m. Basically, his job
was to deliver takeout orders, collect the money, and then turn it in at the end of his shift.
Morace’s opinion was that Scott was a reliable employee, but one who had a temper and who
had difficulty getting along with others. Scott acknowledged that he was not very popular.
5
Lisa Delancey is an organizer, who is employed by the New York Committee for
Change, (NYCC). This is a not for profit community organization. She testified that the Charging
Party, the Fast Food Workers Committee is an organization that is allied with the NYCC and
that it is engaged in a variety of actions to promote fair pay for fast food workers. She described
her role as going to different fast food stores in order to speak to workers and inquire about any 10
issues that they might have. She also testified that in 2015, she became involved in a “wage
war” designed to get all fast food workers in New York, $15 per hour. She testified that this
involved holding demonstrations at various restaurants throughout New York State. Jesse Scott
testified that he and two other employees of the Respondent attended a number of these
demonstrations. But none of those demonstrations were at the Respondent. 15
There is no evidence that either the NYCC or the Fast Food Workers Committee has
ever actually represented employees for the purpose of collective bargaining as that phrase is
used in the Act. 1
20
Scott testified that in the summer of 2015, Delancey visited the store, usually around 5
p.m. on Fridays and spoke to employees about various issues. Whatever discussion were had,
they apparently did not involve soliciting employees to authorize the Fast Food Workers
Committee to represent them in collective bargaining.
25
On December 31, 2015, an increase in New York’s minimum wage law became
effective. But on January 8, the first Friday after the law went into effect, the Respondent hadn’t
yet changed its payroll to reflect the increase. So on that day, which is the normal payday for the
employees, Delancey visited the store and started arguing with the store manager about the
employees’ pay being incorrect. Morace was notified of this by phone and he came down to the 30
store and spoke with Delancey. Her testimony was that Morace claimed that he was in
compliance with the law and that she was wrong. Delancey testified that she insisted that
Morace was incorrect and that he said he would check it out later. His testimony was that she
insisted that he was not paying the correct amount and that she threatened to shut down the
store. Morace testified that this batch of checks did not reflect the change because his payroll 35
company hadn’t made the change yet. He testified that he told Delancey that on Monday, the
employees would be made whole for any difference in pay, but that Delaney still kept arguing.
In fact, the employees were paid the difference.
Although there are minor differences in this account, the two versions are essentially the 40
same. By the way, Delancey admits that she threatened to shut down the store. In either
version, Jesse Scott played no role other than being one of the people who got paychecks with
the wrong amounts and observed the altercation between Delaney and Morace.
At the end of January, 2016, Scott was accused by store manager Otero of stealing a 45
soda. After contacting Delancey, they visited the store on the following day and confronted

1
To the extent that this organization purports to act on behalf of employees, if it is not a labor
organization then it would not be subject to the Sec. 8(b) provisions of the Act. On the other hand, it
would also not be afforded the protections given to labor organizations under the Norris-LaGuardia Act or
the exemptions in the Antitrust laws.
JD(NY)-31-16
3
Otero about the accusation. After some discussion, Morace came in and Delancey asked why
Scott had been taken off the schedule. Morace essentially refused to respond and asked her to
leave the premises. She refused. After some more give and take, Morace called the police and
after getting both sides of the story, they told Delancey that she had to leave. Delancey agrees
that the police mentioned the word trespass. 5
After this transaction, Scott resumed working on his normal schedule. Morace testified
that he didn’t do anything about the “stolen soda” as he felt the whole matter was too trivial to
warrant any kind of discipline.
10
On Friday, February 12, 2016, the paychecks were brought to the store and Scott
discovered that his check was missing. This apparently was not the only time that this had
happened to other employees. And in this respect, the payroll company had notified Morace that
when this does happen, he should first contact them before paying cash so that they can
investigate and if necessary, stop payment on the missing check. 15
In any event, when the shift ended at around 1 a.m., Scott insisted that Otero pay him in
cash and he refused to leave or turn in the day’s receipts until he was paid. Otero said he could
not do that without Morace’s permission and Scott still insisted on being paid. By both
accounts, Scott and Otero got into a loud argument. Otero then contacted the police and they 20
arrived. After some discussion, in which Scott still refused to leave or turn in his receipts, Otero
contacted Morace at home and was told to pay Scott in cash and to tell him not to return to
work. At this point, Otero gave Scott his wages in cash. Scott then turned over the receipts and
Otero told him that he was fired.
25
During the following week, Delancey led a silent demonstration that took place on the
premises of the store. This lasted for a short time.
About a week later, Scott visited the store and spoke to Otero. He asked for his job back
and states that Otero told him that he had been given several chances in the past and that he30
would not rehire Scott because he had brought Delancey into the store.
III. Analysis
The complaint alleges that the Respondent discharged Scott on February 12, 2016,35
because of his union and concerted activities.
Firstly, I doubt that the charging party can be defined as a labor organization. And even
if it could be, there is no evidence that it sought to organize the Respondent’s employees for the
purpose of collective bargaining. Neither Scott, nor any other employees, were ever asked to 40
sign any kind of form authorizing the charging party to represent them or to bargain on their
behalf. I simply do not think that Scott was involved in union activity; albeit it might be argued
that he was engaged in concerted activity as defined by Section 7 of the Act.
In my opinion, the only plausible concerted activity, vis a vis, this employer was the time 45
that Scott and other employees were present when Delancey got into an argument with Morace
about the increase in the minimum wage law. And in this regard, I don’t see Scott as being
particularly involved beyond being present. Moreover, this was basically much ado about
nothing inasmuch as the company promptly complied with the minimum wage law and almost
immediately paid its employees the difference. 50
JD(NY)-31-16
4
The incident involving the alleged stolen soda was not concerted activity because Scott’s
protest, with the assistance of Delancey, was only about himself. Moreover, the employer
essentially disregarded this incident and from what I can see, it had nothing to do with Scott’s
discharge.
5
To the extent that Scott may have participated in demonstrations at other companies in
New York State, this had nothing to do with the Respondent and I can’t imagine that this could
have been a reason for his discharge.
In my opinion, the only reason for Scott’s discharge was the argument that he had with 10
Otero when his paycheck was missing on February 12, 2016. As noted above, when his
paycheck wasn’t there, Scott understandably was annoyed. Scott then refused to turn over the
receipts he received that evening and he refused to leave the premises until he was paid in
cash. The testimony of both Otero and Scott shows that this was a heated argument that took
place at one in the morning and that the police were called to calm things down. After Otero 15
called Morace, the latter told Otero to pay him in cash. At this point, Otero paid Scott and told
him that he couldn’t return to work.
The General Counsel and the Charging Party argue that the true reason for Scott’s
discharge was revealed about a week later when he asked Otero to rehire him. Nevertheless, 20
Otero credibly denied Scott’s version of this conversation.2 And in my opinion, it is totally
implausible, given the events on February 12, that the company would have decided to
discharge Scott because of his involvement with the charging party or because he happened to
witness an argument about minimum wages back in December of 2015.
25
I therefore shall recommend that the complaint be dismissed.
Dated at Washington, D.C. August 18, 2016
30
________________________
Raymond P. Green
Administrative Law Judge35

2
Even if Otero did say that he was refusing to rehire Scott because Scott brought Delancey into the store,
this would have referred to the demonstration that she led in the store’s premises during the week after
Scott had been discharged. It therefore cannot be asserted that this event had anything to do with Scott’s
discharge.