Dickens, Inc.

National Labor Relations Board - Board Decisions

May 30, 2008

352 N.L.R.B. 667 (N.L.R.B. 2008)

DICKENS, INC.
352 NLRB No. 84
667
Dickens, Inc. and Wenqing Lin. Case 29–CA–28229
May 30, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On December 4, 2007, Administrative Law Judge Ste-
ven Fish issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,1
findings,2 and conclusions3 and to adopt the recom-
mended Order and notice as modified.4

1 The judge relied on the Respondent’s vice president and owner
James Chou’s affidavit in making his findings. No party excepted to
the judge’s admission of the affidavit as substantive evidence.
2 The Respondent excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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.
3 No party excepted to the judge’s dismissal of the allegation that the
Respondent violated Sec. 8(a)(1) by threatening to discharge employees
if they requested improvements in their pay.
In affirming the judge’s finding that the Respondent violated Sec.
8(a)(1) by instructing its employees not to discuss their bonuses with
other employees, Chairman Schaumber notes that this violation was not
alleged in the complaint. He recognizes, however, that the finding of a
violation is consistent with extant Board law, which he applies for
institutional reasons for the purpose of deciding this case. Thus, he
joins in finding that the unalleged violation is related to the complaint
allegation that the Respondent terminated Lin for engaging in protected
concerted activity.
Member Liebman agrees with the judge that the unalleged violation
is closely connected to the subject matter of the complaint and has been
fully litigated. In her view, the finding that the Respondent instructed
employees not to discuss their bonuses with other employees relates to
the complaint’s allegation that the Respondent terminated employee
Lin because he engaged in protected concerted activity. Both viola-
tions stem from the same set of facts (i.e., the September 29, 2006
conversation between Lin and Chou), and both involve the Respon-
dent’s reaction to Lin’s protected concerted activity during that conver-
sation. Moreover, the issue was fully litigated, as both the General
Counsel and the Respondent presented and cross-examined witnesses
regarding the September 29 conversation. Finally, it is significant that,
as noted by the judge, Chou admitted making the remarks upon which
the violation is based. Under such circumstances, she believes it is
particularly appropriate for the Board to find and remedy the unalleged
violation. See, e.g., Earthgrains Co., 351 NLRB 286, 289 (2007);
Meisner Electric, 316 NLRB 597 (1995).
In affirming the judge’s finding that Wenqing Lin’s termination vio-
lated Sec. 8(a)(1), we find that the Respondent knew that Lin engaged
in concerted activity when he complained to Chou about the bonus rate
he and two coworkers received. The Respondent knew or should have
known that Lin was presenting a group complaint to management be-
cause Lin’s complaint was raised in the same conversation and at the
same time as his coworker’s request to Chou for an increase in bonus
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Dickens,
Inc., Commack, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(c).
“(c) Within 14 days from the date of the Board’s order,
remove from its files any reference to the unlawful dis-
charge of Lin, and within 3 days thereafter notify the
employee in writing that this has been done and that the
discharge will not be used against him in any way.”
2. Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
its Commack, New York facility, copies of the attached
notice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since September 29,
2006.”

rates, and his complaint on its face implied group involvement. After
Lin’s coworker asked Chou if a bonus increase was possible, Lin added
that the bonus rate “we” have was only two out of a thousand. Lin then
continued to question Chou about the bonus rates for other employees.
We additionally conclude that the timing of Lin’s termination 2 days
after Lin engaged in protected concerted activity further supports the
judge’s finding that his termination was unlawfully motivated. See,
e.g., American Cyanamid Co., 301 NLRB 253 (1991) (finding that the
timing of the employee’s discharge a week after engaging in protected
concerted activity warranted an inference that the activity was a moti-
vating factor in his discharge).
4 We have modified the judge’s recommended Order and notice to
correct certain inadvertent errors.
Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD668
3. Substitute the attached notice for that of the admin-
istrative law judge.
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 tell our employees not to discuss their
bonuses, wages, or any other terms and conditions of
employment with one another.
WE WILL NOT discharge or refuse to reinstate our em-
ployees, because said employees engaged in protected
concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s
Order, offer Wenqing Lin full reinstatement to his former
job or, if this job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Lin whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against Lin plus interest.
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 Lin, and within 3 days thereafter notify
the employee in writing that this has been done and that
the discharge will not be used against him in any way.
DICKENS, INC.
Henry Powell and Tabitha Boerschinger Esqs., for the General
Counsel.
James Chou, Vice President and Owner, of Commack, New
York, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to charges
filed on March 21, 2007 by Wenqing Lin, an Individual, (called
Lin), the Director for Region 29, issues a Complaint and Notice
of Hearing on July 19, 2007, alleging that Dickens, Inc. (called
Respondent), violated Section 8(a)(1) of the Act, by threatening
employees with discharge if they requested improvements in
their pay, and by discharging Lin, because he engaged in pro-
tected concerted activity.
The trial with respect to the allegations raised in said Com-
plaint was held before me in Brooklyn, New York on August
20 and 21, 2007. Briefs have been filed and have been care-
fully considered. Based upon the entire record, including my
observation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Employer is a corporation, with its principal office and
place of business in Commack, New York, where it is engaged
in the wholesale distribution of greeting cards and social sta-
tionary.
During the past year, Respondent purchased and received at
its Commack facility, goods and products valued in excess of
$50,000 directly from entities located outside the state of New
York.
It is admitted and I so find, that Respondent is and has been
an Employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. FACTS
Respondent, as noted above is engaged in the wholesale dis-
tribution of greeting cards and stationary. James Chou is Re-
spondent’s vice-president and owner.
Wenqing Lin, had been employed by Respondent as a ware-
house employee since August 1, 1998. Qui Shen Liu and
Miaona Wu have been employed by Respondent in a similar
capacity, since 2004 and 2000 respectively. Their job consisted
of filling orders which entails reading orders, carrying and
stocking boxes, and preparing orders to be shipped.
Respondent has for some time employed a system of paying
bonuses to its employees, which is calculated based on a com-
parison of monthly sales figures to the same month, the prior
year. Respondent would then calculate the amounts due based
on different percentages for different employees, ranging from
0.2 percent to 0.5 percent. Lin, Liu and Wu all received the
same percentage, 0.2 percent or $2 per thousand.
In early 2006,1 Respondent’s chief competitor went out of
business. As the major greeting card supplier in the area, Re-
spondent picked up more business, and was able to earn in-
creased monthly profits. This resulted in bonuses for its em-
ployees. In July, Respondent hired three new employees, and
decided not to give bonuses to these new employees, who were
primarily college students.

1 All dates hereafter are in 2006, unless otherwise indicated.
DICKENS, INC. 669
Lin, Liu and Wu, as long-term employees received their bo-
nus, which amounted to over $800 per person. On September
29, Lin, Wu and Liu were cleaning up outside their work area
and preparing to leave for the day. Chou approached the three
employees, and said that business continues to be good, and
that employees should expect to receive a bonus again for this
past month.
He added that employees had received over $800 per month
as a bonus. Wu responded by asking how long this kind of
bonus can last? Chou replied that he didn’t know, but he
thought it should last for a while. Wu then stated that since
business was getting better, at the same time, their work be-
came more busy. Wu then asked if it was possible for the bo-
nus to be increased?
Chou made no response to Wu’s inquiry, but Lin then inter-
jected himself into the conversation. Lin said that the bonus
rate that we2 have was only two out of a thousand. Lin asked
whether new employees would be receiving the bonus. Chou
replied that the new employees would not be receiving any
bonus, and added “do me a favor, you are getting paid much
more than anybody else, please keep silent, don’t have a big
mouth. You are making over $800 per month, in bonuses, and I
cannot afford to pay that to everyone.” Lin then questioned
Chou about the bonus rates for office employees and that of
employee Jian Ping Chiang. Chou explained that everyone has
different nature and scope of work, and that’s why bonuses
vary. Lin asked if Chiang’s rate is four out of a thousand.
Chou confirmed that amount for Chiang, but asked how Lin
had found out about Chiang’s rate? Lin did not answer Chou’s
question. Chou then explained why Chiang received a higher
bonus than Wu, Lin, and Liu, pointing out Chiang’s 18 years’
seniority, and his ability to speak English and drive a truck, and
the fact that Chiang works with clients and sales people. Lin
then asked about the office employees. Chou responded that
the sales manager received a higher bonus, but that the office
staff received the same 0.2 percent as Lin (and Wu and Liu).
Lin then asked Chou if he was telling the truth? Chou an-
swered that this is the truth. Chou conceded that he was getting
annoyed with Lin’s questioning his veracity in front of other
employees. Chou stated, that “Lin was confronting me, but I
kept my temper.”
My findings detailed above, concerning the events of Sep-
tember 29 is based on a compilation of the credible portions of
the testimony of Lin, Wu, and Chou, as well as Chou’s affidavit
and the affidavit submitted by Wu to the Region. With respect
to the latter document, the significant fact continued therein,
which I have credited over Wu’s testimony, was that Wu asked
Chou if the employees’ bonus could be increased, in view of
the increase in business. While Wu did not recall making such
a comment during her testimony, I have, based on the circum-
stances here, credited her affidavit in this respect.
I find that Wu was most reluctant to testify here, was still
employed by Respondent, and felt intimidated to testify on
behalf of Respondent. In this regard the record reveals that in
preparation for filing its answer to the above complaint, Re-

2 When using the term we, Lin testified that he was referring to him-
self, Wu, and Liu.
spondent by Chou obtained affidavits from Wu and Liu in a
group setting. In fact the affidavits of Wu and Liu submitted by
Respondent along with its answer, were identical concerning
the events of September 29th. I find that the affidavit supplied
by Wu to the Board to be more reliable, than her testimony, and
I rely on said affidavit as substantive evidence. L.S.F. Trans-
portation, 330 NLRB 1054, 1065 (2000); Three Sisters Sports-
wear Co., 312 NLRB 853, 865 (1993); New Life Bakery, 301
NLRB 421, 426 (1991); Snaider Syrup, 220 NLRB 238, 238
fn.1, 245 (1975); Starlite Mfg., 172 NLRB 68, 72 (1968).
Respondent argues that Wu’s affidavit should not be relied
upon, because of the circumstances that motivated her to give
such an affidavit to the Region. In that regard, in February of
2007, Chou asked Wu to clean the toilets, because the em-
ployee who usually performed that task was on vacation. Wu
refused to do so, because she wanted to go to lunch. Chou also
asked Liu to perform this job, but he also refused, claiming that
he had allergies. These refusals angered Chou, and 2 days later
he informed Liu and Wu that Respondent would be eliminating
their holiday pay and vacation benefits. Neither employee
received holiday pay for President’s day on February 19. Wu
took a vacation from March 16 to April 9, and was not paid for
her vacation, as she had been in the past. Wu was quite upset
about Respondent’s decision to cancel these benefits for her.
Lin filed his charge in the instant case on March 21, 2007.
Thereafter Lin had a conversation with Wu. Lin told her that
he had filed a complaint with the NLRB, and she told him that
she was unhappy that Respondent had canceled her vacation
and holiday benefits. As a result of this conversation, Wu went
to the NLRB to furnish an affidavit on May 22, 2007. The
affidavit consisted of 4 pages. The first five paragraphs of the
affidavit dealt with Lin’s charge, and detailed her version of the
events of September 29th and thereafter. The remainder of the
affidavit, consisting of 7 paragraphs dealt with her complaints
about the cancelling of her vacation and holiday benefits.
Respondent argues in effect that this affidavit should not be
credited, because Wu was unhappy with Respondent at the
time, and presumably gave false testimony in the affidavit,
because she was displeased with Respondent. I do not agree.
To the contrary, I believe that these facts further support my
conclusion to credit the affidavit over her testimony with re-
spect to the issues in dispute. In my view, the fact is Wu was
unhappy with Respondent, and that she went to the Region
primarily to register her own complaint about the cancellation
of her benefits, do not indicate that her affidavit was likely to
be false. Further, since she was there primarily to register her
own complaint,3 her version of the events relating to Lin’s case
was merely incidental, and not likely to be fabricated. Further,
I am persuaded that the fact that Respondent would cancel her
vacation and holiday benefits (whether this action is unlawful
or not), because she refused to clean toilets, supports my con-
clusion that Wu was intimidated by Respondent, and gave her
affidavit to Respondent and testified as she did, in fear of fur-

3 It does not appear that Wu filed a charge on her own behalf with
regard to the cancellation of her benefits. There is no evidence that the
Region solicited a charge from her. The Region did not allege in the
complaint that the cancellation of her benefits was unlawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD670
ther retaliation by Respondent. I therefore find, for the reasons
detailed above, that her affidavit given to the Board is more
reliable, than her testimony, with respect to whether she asked
Chou for an increase in the bonus rate on September 29th.
L.S.F. Transportation, supra; Three Sisters, supra and cases
cited therein.
Finally, I also note that Wu was somewhat equivocal in her
testimony that she did not make such a request. Thus she ad-
mitted that she did not recall clearly what she said on Septem-
ber 29, and when confronted with her affidavit by General
Counsel, Wu finally conceded that she might have made such a
comment, but she was kidding around. Her response was as
follows: “I would say that at that time since we were like jok-
ing around in a happy manner and then I might have said some-
thing like maybe you can give us more bonus, but it was like. . .
like kidding around in a very informal manner.”
Accordingly, based on the foregoing, I find that Wu did, as
detailed above, ask Chou for an increase in the bonus rate for
employees, before Lin interjected himself into the conversation,
and gave his comments and asked his questions concerning the
bonus issue.
Lin testified that on the next workday, Monday, October 2,
after a general meeting of employees, Chou spoke to Liu, Lin,
and Wu. According to Lin, Wu spoke first, and said that busi-
ness is getting better, we have a lot of orders and that is why we
wanted to increase our bonus. Lin further asserts that Chou did
not respond, but as he was walking out of the room, Chou al-
legedly said “whoever talks about increasing the bonus would
be fired.” Lin further testified that he (Lin) then said “you
should just fire me.”
Lin also testified that later in the day, at about 5:20 p.m.
Chou called him into his office, with no one else present. Lin
asserts that Chou told him that if he wants higher income, he
should look for another job, and added that “whoever asks for
an increase in wages or with benefits would be fired.” Accord-
ing to Lin, later in the conversation, Chou told Lin that Re-
spondent was going to fire him, and instructed Lin to go home
and think through it.
I do not credit Lin’s testimony concerning these conversa-
tions on October 2. I note that unlike the September 29 conver-
sation detailed above, Lin received no corroboration from Wu
or from her affidavit with respect to October 2 conversations, or
to Lin’s assertion that Chou threatened to discharge employees
who talk about bonuses. I also rely on the fact that both Wu
and Liu although allegedly present when Chou made this threat,
credibly denied hearing Chou make such a statement.4
Furthermore, Chou testified credibly and passionately that he
did not and would not threaten employees with termination
with discharge if they discussed or complained about wages or
benefits. Chou testified further, credibly and without any con-
tradictory evidence, that numerous employees including Lin
have complained to him in the past about their wages, and he

4 I again note the affidavit given to the Board by Wu, which I have
relied on in connection with the September 29 incident, does not cor-
roborate Lin’s testimony as to October 2, and specifically states that
Wu never heard Chou threaten employees with discharge if they dis-
cussed pay or benefits with the other employees.
has not fired anyone for such conduct. Chou also credibly testi-
fied, corroborated by testimony from Kenneth Wagner, Re-
spondent’s Director of Marketing, that Wagner on two prior
occasions, including in July of 2006, had proposed to Chou that
Respondent institute a rule that employees be prohibited from
discussing their pay or bonus.5 Chou vetoed Wagner’s sugges-
tions on both occasions, telling Wagner that such a rule would
violate a 25-year open door policy that Respondent has had
with its employees.
For the above reasons, I do not credit Lin’s testimony con-
cerning the events of October 2, and find that Chou did not
threaten to terminate or discharge employees, if they com-
plained about or discussed their pay or bonuses.
On October 3, at the end of the day, Chou called Lin into his
office and told him that he was being fired because he and
Chou “could not get along well.” Lin replied that this was the
first time he had heard about this and asked for specifics. Chou
made no reply, and Lin insisted on something in writing ex-
plaining the termination. Chou agreed and typed up a letter
which stated that Lin was terminated “because of a personality
conflict with the undersigned.”
Chou explained what he meant by “personality conflict” in
his affidavit. His affidavit states “I believe that Lin is an a—
hole and has an a—hole attitude. He questioned my honesty
and integrity in front of other employees.” Chou admitted that
the questioning of his honesty and integrity by Lin was in con-
nection with the issue of bonus rates of employees.
Chou further admitted in his testimony that the primary fac-
tor in his decision to fire Lin was Lin’s “a—hole attitude” about
the bonus. Chou added later in his testimony that he was un-
happy with Lin, because the “bonus is really the highest time I
ever had in this past ten years. Okay? And even if $800 bonus
I cannot please him and he’s still not happy, how I can . . . !”
While admitting that Lin’s conduct during the September 29
discussion, was the precipitating factor, in his decision to ter-
minate Lin, Chou testified that there were also other reasons
that contributed to his decision. Chou asserts that Lin’s work
performance was poor and that he had previous conflicts with
fellow workers. Chou claims that Lin’s capacity was limited,
in that he was able only to pick up small pieces, and was not
physically able to move large boxes. Chou adds that at times,
Lin refused to do some work, and had several disputes with
supervisors and employees. Respondent adduced evidence
from Chiang, that at some undefined time in the past, Lin had a
loud argument with fellow employee Liu Bo during which,
“they almost fight each other.” Neither employee was disci-
plined for this loud argument. Wu testified to an incident
“many years ago,” when Lin refused to clean the bathroom, and
had a loud argument with a supervisor at the time about that
work assignment. According to Wu, at the time, employees
would rotate cleaning the bathroom, on a monthly basis, and it
was Lin’s turn to clean the bathroom, when Lin refused to per-

5 Wagner had previously worked for a store that had such a rule in
its handbook. Wagner felt that such a rule would be advisable for
Respondent, because employees talking about these issues could “cause
problems.”
DICKENS, INC. 671
form that work. Lin was not terminated or disciplined for this
conduct.
Chou testified that sometime in 2002, he terminated Lin, be-
cause of his alleged limited capacity and his refusal to perform
work. Chou claims that at that time, Lin’s wife telephoned
Chou, and begged him not to fire her husband. According to
Chou, Lin’s wife asked him to do her a favor, and rehire Lin
and let him stay “for a few more years, so he can retire and get
his social security.” Chou testified that he relented and rehired
Lin in 2002.6
Chou also testified that another reason for his decision to
terminate Lin, was cost savings issues, since he could hire
younger employees, who could speak English fluently, at lower
salaries, who could perform tasks, such as lifting heavy boxes,
that Lin was allegedly unable to perform.7
In this regard the evidence, discloses that Liu ($8.50) and
Wu ($9.25), had higher salaries than Lin, and also had the same
limited capacity (i.e. inability to lift heavy boxes, and limited
capacity to speak English).
Finally, Respondent notes that Lin filed a charge with the
EEOC, which asserts that he was terminated by Respondent
because of his age. With Lin’s charge filed with the EEOC on
December 6, 2006 he submitted a letter of Complaint, which
included Lin’s belief that he was fired because of his age. The
letter made no reference to the events of September 29, 2006,
or any claim that he was fired for the exercise of protected con-
certed activity.
Further in connection with this EEOC charge, Chou submit-
ted a response. In this response, which related to why he ter-
minated Lin, Chou explained that Lin had questioned him about
bonuses of other employees and related that Lin “started ques-
tioning me in front of other associates if I was telling the truth.”
Chou added that he was “angry,” because of this conduct by
Lin, and added, “The next day I called Mr. Lin in my office and
told him that I can never please or satisfy some people like him
regardless how hard I try, and the longer he works for this
company, the more he feels I owe him, we had a ‘serious per-
sonality conflict,’ and I decided to let him go.”
III. ANALYSIS
A. The Alleged Threat to Discharge
The complaint alleges that Respondent violated Section
8(a)(1) of the Act, by Chou threatening to discharge employees,
if they requested improvements in their pay.
Since I have not credited the testimony of Lin that Chou
made such threats, I shall recommend dismissal of this allega-
tion of the complaint.
However, I have found above, and Chou admitted in both his
testimony and his affidavit, that he instructed employees not to
discuss their bonus with other, recently hired employees, who

6 Lin denied that he had been terminated by Respondent in 2002.
Lin did recall that in 2002, while he was out sick, Chou called and told
him not to return to work, and that Chou planned to retain younger
workers. Lin conceded that his wife had called Chou, and persuaded
Chou to allow Lin to return to work after he recovered from his illness.
7 The new employees could be hired according to Chou at $8 per
hour. Lin’s salary was $8.25 per hour.
would not be receiving such a bonus. Such comments reasona-
bly tend to coerce employees in the exercise of Section 7 rights,
(to discuss their terms and conditions of employment with fel-
low employees), and absent a substantial and legitimate busi-
ness justification, is violative of Section 8(a)(1)) of the Act.
Radisson Plaza Minneapolis, 307 NLRB 94 (1992); Heck’s
Inc., 293 NLRB 1111, 1119 (1989); Waco Inc., 273 NLRB 746,
748 (1984); see also, Scientific Atlanta, Inc., 278 NLRB 622,
625 (1986); Miller Electric Pump, 334 NLRB 824, 825 (2001).
Here Respondent has adduced no evidence of a substantial
business justification, for Chou’s instruction to its employees.
Chou’s belief that there could be dissension if the new employ-
ees who did not receive the bonus found out about the bonus, is
not a substantial or sufficient business justification. That ar-
gument could be made in any case, where employees are pro-
hibited from discussing wages. Cf., IBM Co., 265 NLRB 638
(1982) (Substantial business justification shown, for rule pro-
hibiting distribution of wage data, complied by Employer but
which did not prohibit employees from discussion their wages
with other employees); Jeannette Corp. v. NLRB, 532 F.2d 916,
919 (3d Cir. 1976) (Possibility that ordinary speech and discus-
sion over wages on an employee’s own time may cause jeal-
ousy and strife among employees is not a justifiable business
reason to inhibit opportunity to exercise Section 7 rights). Ac-
cord: Scientific, supra.
I recognize that the complaint did not allege that Respondent
violated the Act by such conduct of Chou. However, it did
allege that Chou violated Section 8(a)(1) of the Act, by threat-
ening to discharge employees, who discussed wages and bene-
fits with fellow employees. Moreover, the testimony concern-
ing this statement made by Chou, come from Chou’s own tes-
timony, and appeared in his affidavit. In these circumstances, I
find that the issue is closely connected to the subject matter of
the complaint and has been fully litigated. Trim Corp. of Amer-
ica, 349 NLRB 608, 609 (2007); Golden State Foods, 340
NLRB 382 (2003). In that regard, this rule has been applied
with particular force, where, the finding of violation is estab-
lished by the testimonial admissions of the Respondent’s own
witnesses. Transpersonnel Inc., 336 NLRB 484, 485 (2001);
Letter Carriers Local 3825 (Postal Service), 333 NLRB 343,
fn. 3 (2001); Meisner Electric Inc., 316 NLRB 597 (1995);
Pergament United States, 296 NLRB 333, 334 (1989), enfd.
920 F.2d 130 (2d Cir. 1990).
Accordingly, I find that by Chou’s conduct in instructing
employees not to discuss their bonuses with other employees,
Respondent has violated Section 8(a)(1) of the Act.
B. The Termination of Lin
The standards for assessing the legality of Lin’s termination
is detailed in Meyers Industries, 268 NLRB 493, 497 (1984)
(Meyers I).
In general, to find an employee’s activity to be “con-
certed,” 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 employee himself. Once the activity is found
to be concerted, an 8(a)(1) violation will be found if, in
addition, the Employer knew of the concerted nature of the
employee’s activity, the concerted activity was protected
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD672
by the Act, and the adverse employment action at issue
(e.g., discharge) was motivated by the employee’s pro-
tected concerted activity. [Footnotes deleted].
And as clarified in Meyers Industries, 281 NLRB 882, 887
(1986) (Meyers II).
We reiterate, our definition of concerted activity in
Meyers I encompasses those circumstances where individ-
ual 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.
Thus the determinative issue here is whether Lin engaged in
concerted activity, during the discussions of September 29th. I
have found above that Chou approached Lin, Wu, and Liu,
three primarily Chinese speaking warehouse employees, all of
whom had received the same 0.2 percent bonus from Respon-
dent. Chou began the conversation by informing the three em-
ployees that business continues to be good, they had received a
bonus of $800 per month and they should expect to receive a
bonus again for the next month. Wu after asking how long the
bonus can last, stated the employees work became more busy,
and asked if it was possible for the bonus to be increased.
Lin, at that point, interjected himself into the conversation,
and said that the bonus rate that we (emphasis added) get was
only two out of a thousand. Lin continued to press Chou for an
increase in the bonus rate, and inquired about the bonus rates of
other employees, including office workers. Although Chou
responded to Lin’s persistent inquiries, Lin asked if Chou was
telling the truth in his responses to Lin concerning the rates for
other employees. Chou considered that Lin was questioning his
veracity in front of other employees, and terminated Lin, pri-
marily , if not solely for Lin’s conduct on September 29.
I conclude that there is little doubt, that by Lin’s conduct in
supporting Wu’s request for a raise in the bonus rate, he was
engaged in protected concerted activity. Hahmer Foreman &
Harness, 343 NLRB 1423, 1424 (2004) (Two employees pro-
tested loss of benefits); Bowling Transportation, 336 NLRB
393, 400–401 (2001) (Two employees requested increase in
safety bonus); Avery Leasing, 315 NLRB 576, 580 (1994) (Two
employees complained about seniority system); Morton Inter-
national, 315 NLRB 564, 566 (1994) (Two employees com-
plained about smoking policy); E.L. Gran Combo, 284 NLRB
1115, 1117 (1987) (Two employees complaints about wages);
Churchill’s Catering, 276 NLRB 775, 776 (1985) (One em-
ployee complained about reduction in insurance coverage.
Second employee supported first employee’s complaint and
accused Employer of prejudice against Mexicans).
Further, where as here, the Employer initiates a discussion
about a term and condition of employment with its employees,
an employee who comments concerning that issue, particularly
where he or she uses the first person plural in making their
complaint, is engaged in concerted activity. Whittaker Corp.,
289 NLRB 933, 934 (1988) (Employee complaint at group
meeting about wage increases, phrased in terms of “us” and
“we”); Bergensons Property Services, 338 NLRB 883, 886
(2003) (employee complaints at group meeting); CKS Tool &
Engineering, 332 NLRB 1578, 1583–1585 (2000) (Employee,
at group meeting, complained about Employer’s demand for
increased production, using the term “we”); Air Contact Trans-
port, 340 NLRB 688 (2003) (employee at group meeting, stated
that they had “some questions on behalf of myself and other co-
workers.”); Grimmway Farms, 315 NLRB 1276, 1279–1280
(1995) (Employee complained at a group meeting about how
Employer treated fellow employee used the term “we” wanted
to know); Colders Furniture, 292 NLRB 941, 944–945 (1989)
enfd. 907 F.2d 765, 768 (7th Cir. 1990) (Salesman in complain-
ing about hours, used “we”, several times).
Here, Chou initiated the discussion about bonuses with the
three employees, and when Lin made his initial complaint to
Chou about the size of the bonus, Lin said the bonus rate that
we had (emphasis supplied) was only two out of a thousand.8
Accordingly, based on the above analysis and precedent, I
conclude that Lin was engaged in concerted activity on Sep-
tember 29, in his discussions with Chou about bonus rates.
Having found that Lin engaged in concerted activity during
the September 29 meeting, I still must determine whether it was
protected by the Act. In this regard, the Board has held that
there are limits as to how far an employee can go in the course
of exercising their concerted activity, in order to retain the
Act’s protection. However, it is well settled that an “em-
ployee’s right to engage in concerted activity may permit some
leeway for impulsive behavior which must be balanced against
the employer’s right to maintain order and respect. NLRB v.
Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965); Mast
Advertising Co., 304 NLRB 819, 820 (1991); Neff Perkins Co.,
315 NLRB 1229, 1233–1234 (1994); Bergenson’s Property,
supra at 884. The test is whether the conduct of the employee
was so egregious that it renders him “unfit for further service.”
Chromolloy Gas Turbine Corp., 331 NLRB 858, 863 (2000),
enfd. 168 LRRM 2180 (2d Cir. 2001); Thor Power, supra; Ci-
bao Meat Products, 338 NLRB 934, 935 (2003).
Here the alleged misconduct by Lin, which so angered Chou,
consisted merely of Lin’s persistent questioning of Chou about
the bonus rates of other employees, and Lin’s asking Chou if he
was telling the truth about such rates, which Chou deemed as
insulting, and “questioning his veracity in front of other em-
ployees.” Such comments by Lin do not come close to meeting
the stringent standard of egregious conduct, rendering Lin unfit
for service, which would remove Lin’s concerted conduct from
the Act’s protection. Indeed, far more insulting or profane
comments have been found not to be unprotected. Neff Per-
kins, supra, at 1233 (employee told supervisor to “shut up and
sit down,” and made profane comments such as “shitty”);
Chromolloy Gas, supra (employee argumentative and confron-
tational and according to company “disparaged company offi-
cial in front of other employees,” and made official “look like a
fool”.); Stanford N.Y., 344 NLRB 558, 559 (2005) (employee
called boss a “f—ing son of a bitch.”); United Enviro Systems,
301 NLRB 942, 944 (1991) (profanity used by salesman in
complaining about work assignments); CKS Tool, supra, at
1583, 1585–1586 (employee made several profane and insult-
ing comments to management official at meeting); Churchill’s

8 By we, Lin meant himself, Liu and Wu, who were the three em-
ployees that were approached by Chou to discuss bonuses, and who all
had the same bonus rate.
DICKENS, INC. 673
Restaurant, supra at 777 (employee accused boss of being
“prejudiced against Mexicans”).
Therefore having found that Lin was engaged in protected
concerted activity on September 29, the next issue becomes
whether Respondent terminated him for that conduct. In that
regard, the General Counsel must first establish that this con-
duct of Lin was a motivating factor in Respondent’s decision to
discharge him. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
There can be no doubt that General Counsel has met that bur-
den. Indeed, Respondent has virtually admitted in the testi-
mony of Chou, as well as in his affidavit, that Lin’s protected
conduct was at least a factor, if not the primary factor, in Re-
spondent’s decision. Thus Chou admitted that his decision to
terminate Lin because of “personality conflicts,” was based
primarily on Lin’s conduct on September 29th, particularly
Lin’s questioning Chou’s veracity or honesty in front of other
employees. Since the questioning of Chou’s veracity was in
connection with Lin’s concerted complaint about bonus rates,
this conduct is part and parcel of Lin’s protected conduct.
Moreover, Chou also admitted that Lin had an “a—hole atti-
tude” about the bonus, since even with an $800 bonus, “I can-
not please him,” thereby demonstrating Chou’s annoyance that
Lin would have the temerity to request a raise in the bonus rate
for employees.
Since I have found that General Counsel has established that
a motivating factor in Respondent’s decision to discharge Lin,
was Lin’s protected conduct,9 the burden shifts to Respondent
to establish by a preponderance of the evidence that it would
have terminated Lin, absent such protected conduct. Wright
Line, supra, Respondent has fallen far short of meeting its bur-
den in this regard.
Indeed while Chou did testify concerning several other al-
leged reasons for his decision to discharge Lin, he did not tes-
tify, nor does the record establish, that any of these reasons,
singly or collectively, would have been sufficient to persuade
Respondent to terminate Lin, absent his protected conduct. See
St. Barnabas Hospital, 334 NLRB 1000, 1015 (2001) (Respon-
dent must establish that it would have terminated employees
absent their protected conduct. Insufficient to establish that
“primary” reason was unprotected conduct).
Further the other reasons given by Chou, which allegedly
caused him to terminate Lin, do not withstand scrutiny. Chou
asserts that Lin had previous conflicts with fellow workers.
While Respondent did adduce some evidence of this conduct,
Lin was never warned or disciplined for any of these incidents,
which I might add, took place years ago. Chou also testified
that he terminated Lin in 2002, for these incidents, as well as a
general inability to perform work, and was persuaded to take
Lin back, after a plea from Lin’s wife. Whether or not this

9 Respondent’s reliance on Lin’s EEOC charge misplaced. Although
Lin may have alleged different reasons (age discrimination) in that
charge, that does not mean that there may not have been other unlawful
reasons, i.e. his protected concerted activity for the discharge. Further,
Chou’s response to that EEOC further establishes the unlawfulness of
Respondent’s conduct. Chou admitted therein that Respondent fired
Lin for questioning him about bonuses in front of other employees.
incident took place as testified to by Chou,10 it cannot justify
terminating Lin 4 years later.
Chou also testified that part of his decision was “cost sav-
ings,” inasmuch as Lin cannot lift heavy boxes, and did not
speak English, and Chou could hire college students at $8 per
hour, who could speak English and were capable of lifting
heavy boxes. However, I note initially that Lin’s salary was
$8.25 per hour, only a 25-cent-per-hour difference from what
Respondent was paying the college students. This is hardly a
significant difference, and I find that this assertion by Respon-
dent is clearly pretextual. I note that Liu and Wu had higher
salaries than Lin, and also speak limited English. More impor-
tantly, Respondent could have enjoyed cost saving at any time,
by hiring more college students, and terminating Lin, but it did
not do so, until Lin engaged in protected conduct on September
29. In my view, it is clear that Lin’s protected conduct was the
sole and only reason for Respondent’s decision to terminate
him. In any event, it is even clearer, that Respondent has failed
to show that it would have discharged Lin, absent his protected
concerted activity, and has therefore violated Section 8(a)(1) of
the Act. I so find.
CONCLUSIONS OF LAW
1. Respondent, Dickens Inc., is an employer engaged in
commerce within the meaning of Section 2(2) and (6) of the
Act.
2. Respondent, by ordering, instructing, and requesting its
employees to refrain from discussing bonuses with other em-
ployees, has violated Section 8(a)(1) of the Act.
3. Respondent, by terminating the employment of Wenqing
Lin, because he engaged in protected concerted activities, has
violated Section 8(a)(1) of the Act.
4. The aforesaid 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 certain un-
fair labor practices, I find that it must be ordered to cease and
desist and refrain and to take certain affirmative action de-
signed to effectuate the policies of the Act.
I shall recommend that Respondent offer reinstatement to
Wenqing Lin to his former position of employment and make
him whole for the discrimination against him, plus interest, as
computed in F.W. Woolworth, 90 NLRB 289 (1950), and New
Horizons for the Retarded, 283 NRLB 1173 (1987).
Based on the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following recom-
mended11
ORDER
The Respondent, Dickens Inc., Commack, New York, its of-

10 Lin had a different version as related above. I need not resolve
this credibility dispute.
11 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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD674
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees not to discuss their bonuses, wages, or
any other term and condition of employment, with one another.
(b) Discharging or refusing to reinstate their employees, be-
cause said employees engaged in protected concerted activities.
(c) 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
Wenqing Lin full reinstatement to his former job or, if this job
no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Lin whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him in the
manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge of
Lin, and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the discharges will not be
used against them in any way.
(d) 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 re-
cords, 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.
(e) Within 14 days after service by the Region, post at its fa-
cility in Commack, New York, copies of the attached notice
marked “Appendix.”12 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. 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 involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since September
29, 2006.

12 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.”