East Buffet Restaurant

National Labor Relations Board - Board Decisions

Jul 31, 2008

352 N.L.R.B. 975 (N.L.R.B. 2008)

EAST BUFFET & RESTAURANT
352 NLRB No. 116
975
East Buffet and Restaurant, Inc. and 318 Restaurant
Workers Union. Cases 29–CA–27114, 29–CA–
27220, 29–CA–27368, and 29–CA–27724
July 31, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On April 3, 2007, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions, a supporting brief, and a reply brief.
The General Counsel and the Union each filed an an-
swering brief to the Respondent’s exceptions.
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, find-
ings,1 and conclusions as modified2 and to adopt the rec-
ommended Order as modified.3

1 The Respondent has excepted to the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance 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 the absence of exceptions, we adopt the judge’s findings that the
Respondent violated Sec. 8(a)(1) of the Act as set out in his Conclu-
sions of Law.
We reverse the judge’s finding that the Respondent violated Sec.
8(a)(3) by criticizing its employees due to their union and other pro-
tected concerted activities. The sole basis for this finding was testi-
mony that the Respondent’s owner, Susan Kong, on one occasion criti-
cized employee Li Feng Liu for his attire and manner of walking after
having stated that she did not approve of her employees’ decision to
join a union. Although the judge found that Liu had not been criticized
in this manner before, we find Kong’s single comment insufficient to
show a change in the Respondent’s employment practices in response
to protected activities.
2 In affirming the judge’s conclusion that the Respondent knew of
employee David Lee’s union activities, we find it unnecessary to pass
on his finding that the captains are the Respondent’s agents. Based on
the captains’ unique duties, and especially the Respondent’s written
rule instructing captains to notify the manager if “anything happens”
and of incidents which are “out of the ordinary,” it is reasonable to infer
that Captain James reported to the Respondent’s officials Liu’s com-
ment that he and Lee had visited the Union and were advised that their
pay was not proper. See Paramount Farms, 334 NLRB 810, 817
(2001).
The Respondent contends that the judge wrongly disregarded two
prior written warnings that Lee had received in concluding that the
Respondent failed to establish under Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), that it would have discharged Lee even absent his union activi-
ties. Even considering those warnings, we find Lee’s discharge unlaw-
ful because we agree with the judge, who found, in essence, that the
stated reason for the discharge was pretextual.
3 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,
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, East
Buffet and Restaurant, Inc., Huntington Station, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(c).
“(c) Directing its employees not to speak to co-
workers while on duty, telling its employees that they
had to eat in two groups and not together, and prohibiting
its employees from making or receiving cell phone calls
while on duty because of their union and other protected
concerted activities.”
2. Substitute the following for paragraph 2(d).
“(d) Within 14 days from the date of the Board’s Or-
der, offer full reinstatement, to the extent that it has not
already done so, to the following unfair labor practice
strikers 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 privi-
leges previously enjoyed, displacing if necessary, any
replacements hired since April 24, 2006:
Hui Ma Yu Zhen Wang
Yu Chuan ChuBi Chen
Ping Zhang Li Feng Liu
Ping Yuan Wu Xiu Zhu Lin”
3. Substitute the attached notice for that of the admin-
istrative law judge.

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.
We find merit in the Respondent’s exception that par. 1(c) of the
judge’s recommended Order is overly broad. We shall modify that
paragraph to conform to the violation found, which is the implementa-
tion of rules in response to employees’ union and other protected con-
certed activities.
In light of the Respondent’s claim that it has already offered rein-
statement to all eligible returning strikers, we shall modify par. 2(d) of
the judge’s recommended order to require that the Respondent make
such offers to the extent it has not already done so. See CNP Mechani-
cal, Inc., 347 NLRB 160 fn. 4 (2006), enfd. 269 Fed Appx. 25 (2d Cir.
2008); Diamond Detective Agency, Inc., 345 NLRB 168, 169 fn. 1
(2005). We shall also delete employee Mei Ying Zou’s name from the
list of discriminatees to be offered reinstatement, because the judge
granted the General Counsel’s motion to amend the complaint to ex-
clude Zou from the list of strikers who made an unconditional offer to
return to work. We shall also substitute a new notice to conform to our
modified Order.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD976
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 coercively question you about your let-
ters of protest, or about your union or protected con-
certed activities.
WE WILL NOT threaten you with transfers to different
assignments, threaten you with closure of the restaurant,
threaten that we will examine your immigration docu-
mentation or tell you that it would be futile to join the
Union because of your union or protected concerted ac-
tivities.
WE WILL NOT direct you not to speak to your co-
workers while on duty, tell you that you have to eat in
two groups and not together, or prohibit you from mak-
ing or receiving cell phone calls while on duty because of
your union and other protected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against you for supporting 318 Restaurant Workers’ Un-
ion or any other union.
WE WILL NOT fail or refuse to reinstate unfair labor
practice strikers.
WE WILL NOT in any like or related manner interfere
with, restrain, 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 David Lee full reinstatement to his former job or, if
that 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 David Lee whole, with interest, for any
loss of earnings and other benefits suffered as a result of
the discrimination against him.
WE WILL within 14 days from the date of the Board’s
Order, offer the following employees full reinstatement,
to the extent that we have not already done so, to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed, displacing if necessary, any replacements hired
since April 24, 2006:
Hui Ma Yu Zhen Wang
Yu Chuan Chu Bi Chen
Ping Zhang Li Feng Liu
Ping Yuan Wu Xiu Zhu Lin
WE WILL make the above-named employees whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, less any net in-
terim earnings, plus interest from April 24, 2006.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of David Lee and the refusal to reinstate the
above-named employees and WE WILL, within 3 days
thereafter, notify each of them in writing that this has
been done and that the discriminatory actions will not be
used against them in any way.
EAST BUFFET AND RESTAURANT, INC.
Sharon Chau, Esq., for the General Counsel.
Lewis Goldberg, Esq. (Goldberg and Weinberger LLP), of
Huntington Station, New York, for the Respondent.
Yvonne Brown, Esq., of Brooklyn, New York, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based upon
charges filed by 318 Restaurant Workers’ Union (Union) in
Case Nos. 29–CA–27114, 29–CA–27220, 29–CA–27368, and
29–CA–27724 on August 12 and October 20, 2005, and on
January 13 and June 2, 2006, respectively, a complaint was
issued on June 30, 2006 against East Buffet and Restaurant,
Inc. (Respondent).1
The complaint alleges that the Respondent unlawfully dis-
charged David Lee and thereafter engaged in numerous viola-
tions of the Act because its employees (a) protested the dis-
charge (b) joined the Union and engaged in union activities and
(c) engaged in other protected concerted activities. Those al-
leged violations included unlawfully interrogating employees,
threatening them, creating the impression of surveillance, in-
forming employees that joining the Union would be futile, sub-
jecting them to closer supervision, complaints and harsh criti-
cism over the performance of their duties, assigning them to
additional and less desirable duties which they had never per-
formed before, reassigning more desirable work from waiter
employees to buspersons, directing employees not to speak to
or eat with other employees or to accept cell phone calls while
on duty, and issuing a disciplinary warning to employee Yu
Chuan Chu. Finally, the complaint alleges that the Respondent

1 The Respondent’s answer denied knowledge or information con-
cerning the filing and service of the charges. My review of the formal
papers in evidence including the affidavits of service of the charges
establishes that they were filed and served as alleged in the complaint.
EAST BUFFET & RESTAURANT, INC. 977
failed to reinstate unfair labor practice strikers upon their un-
conditional offer to return to work.
The Respondent’s answer denied the material allegations of
the complaint and on September 18–21 and October 18–20,
2006, a hearing was held before me in Brooklyn, New York.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a domestic corporation having its office
and place of business at 179 Walt Whitman Road, Huntington
Station, New York, is engaged in the operation of a buffet res-
taurant. During the past year it derived gross annual revenues in
excess of $500,000 and purchased and received goods and sup-
plies valued in excess of $5,000 directly from suppliers located
outside New York State. The Respondent admits and I find that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The Respondent also ad-
mits and I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent was opened in 1988 by its owners Sauman
(Susan) Kong and her husband Kan Pat Kong. Their son, Kevin
Kong, is the general manager.2 The restaurant, which serves a
Chinese food cuisine, employs two captains, James and Evelyn,
a cashier/hostess and about 20 dining room employees, includ-
ing waiters, waitresses and buspersons.3 There is also a kitchen
staff and one cleaning person who cleaned the bathrooms and
washed the tables and floors. The restaurant is buffet-style with
the customers being shown to a table by the hostess and then
obtaining their food at various buffet tables.
Each member of the wait staff is assigned to certain tables.4
They take special food orders, bring drinks, clear the tables of
dirty dishes, and also bring the check to the table. Customers
may pay their bill to the waiter or at the cashier’s desk. Kevin
Kong stated that the waiter must keep his area clean, count the
number of customers at the table and enter that amount in the
computer, and ensure that customers pay their bills. Tables for
the customers are designated by letter and number and are lo-
cated in different sections of the restaurant. There is also an
eleven table “party room” where customers can eat, and where
the employees eat their meals.
Employees arrive at work at 11:00 a.m. at which time they
prepare the restaurant for its opening to customers at 12:00 p.m.
The restaurant is closed to new customers at 3:00 p.m., but of

2 The Respondent stipulated that all three Kongs are statutory super-
visors of the Respondent.
3 The buspersons were referred to as busgirls and busboys and where
necessary, such designations will be used herein.
4 Employees’ Chinese and English names were used interchangeably
at the hearing. Their names are listed here: Ping Zhang (Ivy); Bi Chen
(Becky); Jenny, Yu Chuan Chu (Michael); David Lee; Xiu Zhu Lin
(Sammy); Li Feng Liu (Tommy); Hui Ma (Mark); Yu Zhen Wang
(Amy).
course customers who are still eating are permitted to stay. The
restaurant reopens at 4:30 p.m. for dinner. New customers are
denied entry at 9:00 p.m. on weekdays and 10:00 p.m. on Sat-
urday and Sunday. On weekdays the restaurant closes at 10:00
p.m.
From Monday through Thursday, there are generally four
waiters and three busgirls assigned to the dining room.5 On
Friday through Sunday, the busiest nights of the week, seven
waiters and one part-time waiter, four busgirls, seven or eight
busboys, two captains and two hostesses are present during
dinner.6 The busboys’ morning duties include sweeping and
mopping the floor and making ice, but during dinner they assist
the waiters by bringing drinks to customers’ tables and remov-
ing dirty dishes. The busgirls worked as dish transporters and
also maintained and cleaned the buffet tables and surrounding
floor area. They are not responsible for the tables assigned to
the wait staff.
The employees eat their lunch and dinner meals at the restau-
rant with food provided by the Respondent. The lunch meal is
usually taken at 3:00 p.m. and the dinner meal at 9:00 p.m.
They eat their meals in two, fifteen-minute shifts, with some of
them eating while others serve the customers. After eating their
meals, the wait staff continues to serve their customers.
After the employees’ lunch meal they have much “side
work” to do including cutting vegetables and fruit. After the
dinner meal they continue to work cleaning the restaurant and
returning food to the refrigerator until about 10:00 p.m when
the restaurant closes and they leave. The Respondent provides
vans which take a number of employees from their homes in
Queens to the restaurant in Suffolk County, Long Island. Other
employees drive their own vehicles to work.
B. The Captains
Prior to April, 2005, only one captain, James, was employed
at the restaurant. In March or April, Evelyn, a former waitress,
was appointed as an additional captain.7 Kevin Kong stated
that both captains have the same authority and responsibilities.8
The captain reports to work each day arriving at 11:00 a.m. at
which time he unlocks the restaurant door. At those times
Kevin Kong may or may not be there. Kevin usually arrives at
3:00 or 4:00 p.m. three or four times per week. When the cap-
tain is at the restaurant alone with the waiters and buspersons,
he has the highest authority of anyone in the restaurant. How-
ever, Kevin Kong stated that if any problem arose the captain
contacted Kevin by phone. For example, when an employee
came to work sick James called Kevin who told him to send the
worker home. If a worker called in sick, James called Kevin
who volunteered to try to find another employee. In addition,

5 The three busgirls were Yu Zhen Wang, Ping Yuan Wu, and Ping
Zhang.
6 On weekdays one waiter is assigned to each section of the restau-
rant, and on weekends two waiters and two busboys are assigned to
each section.
7 At the time of the hearing, James and Raymond Moi were captains.
Evelyn was no longer a captain, having left that position in September,
2005 and returned to her unit position as a waitress.
8 Page 834, lines 2-3 of the transcript is hereby corrected to read that
“Evelyn” not “everyone” has the same authority as James.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD978
when an employee told James that he needed time off James
asked Kevin since James has no authority to release the worker.
Kevin Kong stated that the captain’s duties included bartend-
ing and occasionally acting as cashier and host. He assigns
waiters and busboys to the section of the restaurant in which
they will work. In making such assignments he simply looks at
the prior day’s assignment and rotates the employees to a dif-
ferent section than the one they worked in the day before. The
skills of the employee played no part in the assignment. Kevin
Kong told the captains to rotate the waiters and busboys among
the various table sections. The captain also helps clear tables
occasionally, helps clean food spills and obtains drinks for
customers.
Mrs. Kong testified that new waiters are trained by the more
senior waiters and not by the captain. Kevin Kong testified that
the captains have no authority to hire, fire, discipline, or warn
employees and no captain has disciplined or recommended the
discipline of any worker. However, the captain notifies Kevin
Kong if there is an altercation among employees, or if an em-
ployee is not working properly. In those instances Kevin Kong
does an “independent investigation.” Kong cited two instances
where James informed him that a waitress was not cleaning
tables when customers were waiting and that a busboy was
drinking beer on duty. Kong spoke to the employees in question
and corrected their work performance.
The captain has no authority to send a worker home before
the end of his shift because of a violation of the restaurant’s
rules. He cannot assign overtime work, grant an employee’s
request for time off, and does not direct the waiter’s routine
duties. If overtime work is needed, James has no authority to
authorize such work, and instead contacts Kevin. Written rules
provide that the employees must listen to the instructions of the
manager and the captain, and that “if anything happens the
manager or the captain must be notified immediately so that
they can take care of those matters.” In addition, another rule
provides that any difficulty regarding a customer must be im-
mediately reported by the wait staff to the captain so that he can
resolve it. The wait staff was directed not to try to resolve the
problem by themselves.
Kevin Kong stated that when the Kongs were not present, the
captain has the authority to tell a busboy that a customer has
left and the table should be cleaned, and if a customer has a
complaint or needed to make a reservation James would handle
those matters. However, the captain is expected to inform
Kevin regarding matters which are “out of the ordinary.”
Employee Li Feng Liu testified as to the captain’s duties. He
stated that when the workers arrive at work James or Kevin
Kong posts a sheet of paper listing the table assignments of the
wait staff for that day. Liu stated that the captain corrects errors
made by the wait staff in customers’ bills. The wait staff re-
ported any incidents that required reporting to the captains.
Kevin Kong’s basement office consists of an outer room
containing linens, mints and tablecloths. The captain has the
key to that office so that he can obtain those supplies as needed.
However, the captain does not have the key to Kong’s inner
office which contains personnel files. The captain also has a
key to the cash register because he occasionally acts as cashier.
In this respect, Kevin Kong stated that only management per-
sonnel, the captains or the cashier/host is permitted to touch the
cash register. The captain may make changes in the computer
such as correcting the number of customers at a table thereby
changing a figure entered by a waiter. However, the captain
cannot cancel a check but he can give a discount to a customer
who complained of poor service. The latter instance never came
to the attention of Kevin Kong. Captains share in the tips left by
customers.
Kevin Kong stated that his parents were out of the country in
May and June, 2005, and returned in mid July. He was away
from the restaurant for the first half of July. During their ab-
sence, captains James and Evelyn worked in the restaurant, and
Kevin’s brother Jim Kong acted as manager.
C. The Visit by the Department of Labor
Mrs. Kong testified that she first learned by letter received
prior to March, 2005 that the Department of Labor (DOL)
would be conducting an investigation of the Respondent. The
letter advised that the DOL would be inquiring into the hours of
work and pay rate of the Respondent’s employees. Mrs. Kong
hired an attorney. In response to the investigation, the Respon-
dent thereafter listed the number of hours worked on employee
pay stubs.
The day before the visit by DOL agents in March, 2005, the
employees were told by manager Kevin Kong and captain
James that on the following day the DOL would visit the res-
taurant to “check on us.” The workers were instructed to wait
outside the restaurant during the visit and not enter until they
were called.
Employee Liu entered the restaurant at about 10:45 a.m. and
was told by Susan Kong that the DOL agents were still present
and that he should not come in.
Liu phoned David Lee and told him that since he was a
documented worker he was entitled to enter the restaurant be-
fore being told to do so. Accordingly, Lee entered the restau-
rant at his usual work time, 11:00 a.m., because he did not be-
lieve that he was included in the exclusion order and because he
wanted to meet the DOL agents, one of whom immediately
waved him over upon his arrival. He approached the table
where the agent was speaking to Mrs. Kong. The agent asked
him his position, and when he said that he was a waiter, the
agent asked him to be seated and asked Mrs. Kong to leave. Mr.
and Mrs. Kong stood behind him nearby at the cashier’s desk.
The agent asked how he was being paid, and Lee answered that
his wages were partly in cash and partly by check. Lee asked
the agent if he could ask a question and she gestured that he
could call her and gave him business cards under the table.
After the agents left, Mrs. Kong told Lee that although he
had been working in the restaurant for such a long time (one
year) how could he have told the agent that he was paid in cash
and by check? Lee answered that Mrs. Kong did not tell him
how to answer the questions, and that if he said he was paid by
cash or by check she would have found fault with those an-
swers, so he just told the truth. Mrs. Kong told him that in the
future the income of the wait staff “will be reported fully.”9

9 Counsel for the General Counsel stated that she is not seeking a
finding that that statement is an unfair labor practice.
EAST BUFFET & RESTAURANT, INC. 979
Shortly before 1:00 p.m. Liu received a phone call telling
him to enter the restaurant and he did so immediately. About
one hour later Lee gave him and employee Bi Chen business
cards of the DOL agent, and told them that they could call the
agent if they had any questions. Lee testified that he gave cap-
tain James a card, and Liu testified that when Lee distributed
the cards Susan Kong and her husband were at a nearby table
facing them.
Liu stated that that day he heard captain Raymond tell Kan
Pat Kong and also heard captain James tell Raymond essen-
tially that Lee was “playing games with us” by intentionally
entering the restaurant during the DOL visit when he was told
not to. James did not testify. Mrs. Kong stated that he was on
his honeymoon in China during the period of this hearing.
D. The Requirement that the Wait Staff Pay Bills
Unpaid by Customers
Prior to March, 2005, it was the Respondent’s policy to ask
waiters to pay the bills of their customers who left the restau-
rant without paying. Kevin Kong testified that prior to March,
2005, if a customer failed to pay his check, he investigated the
matter by asking the captains and the waiter what happened. If
the customer did not pay the bill because of the inattentiveness
of the waiter, he asked but did not require the waiter to pay the
bill. All of the waiters who were asked to pay did so. If Kong
concluded that the customer’s failure to pay was not the
waiter’s fault, he did not ask him to pay. However, Liu testified
to one instance in about early March, 2005 in which James told
him that a customer left James’ table without paying but Kevin
did not require him to pay the customer’s bill.
The employees were unhappy with this policy and following
an instance in January or February, 2005 when Liu was asked
to pay the check of his customer who left the restaurant without
paying his bill, he met in mid to late March, 2005 with other
members of the wait staff including Lee, Ma, Liu, Jenny, Bi
Chen and Evelyn who was later promoted to captain. They
discussed at lunch that it was unfair that they were required to
pay such bills, adding that if they had to do so the money
should come from the tip pool because management personnel
share in that pool. They also discussed other terms of their em-
ployment that they believed were unfair.
Mrs. Kong testified that in response to advice from counsel,
but following the visit by the DOL in March, 2005, she
changed the Respondent’s policy concerning unpaid customer
checks. She decided that rather than ask the waiters to pay for
unpaid customer checks if it was deemed to be the waiter’s
fault, they would thereafter give the waiter a written warning
and not ask for payment of the unpaid bill. Susan Kong stated
that she announced this new policy to the workers but it was
not put in writing. Kevin Kong stated that prior to March, 2005,
the Respondent did not have a policy of issuing written warning
letters for any offense to employees. At the time of the change,
Kong did not notify his captains or the employees that the pol-
icy had changed and that warning notices would be given in-
stead of asking employees to pay the unpaid customers’ bills.
This change to written warnings was testified to by Lee. On
April 20, 2005, Lee incorrectly gave a bill for a table of three to
a table containing two patrons. That two-customer table errone-
ously paid the bill. Thus the two-customer table overpaid their
bill. Lee testified that Kevin Kong asked him to pay that bill.
Lee refused because the bill was not unpaid. Rather, Lee told
Kong that there was no loss to the restaurant since the customer
overpaid his bill. Lee further told Kong that he had discussed
this matter with his co-workers and they decided not to pay for
an unpaid customer’s bill, but that if Kong insisted, he would
have to discuss the matter further with his fellow employees.
Lee further told Kong that if the waiters had to pay such bills
the captains should contribute to the payment because they
share in the tips.
Kevin Kong testified that two days after this incident he told
Lee to be more careful about his bills. Lee responded with a
“very nasty attitude” saying “if you feel there’s a problem why
don’t you just write me a warning letter.” Lee did so. The letter,
written on April 22, stated that Lee’s work performance was
“unsatisfactory, unprofessional and unacceptable.” The letter
noted that he had made a similar error “a few times before.”
The letter also stated that if there was no improvement in his
performance the Respondent would consider terminating him.
Kong testified that he did not ask Lee to pay because the cus-
tomer was overcharged with no loss to the restaurant, and gave
him a warning letter instead.
Counsel for the General Counsel argues that although this
warning letter is not alleged as a violation of the Act, it demon-
strated management’s hostility towards Lee because he refused
Kevin Kong’s request that he pay the customer’s bill.
On April 22, 2005, Bi Chen received a written warning be-
cause her customers left without paying their bill. Kevin Kong
stated that Chen admitted to him that the customers’ failure to
pay was her fault. The letter threatened termination unless
“immediate correction” occurred. Kevin Kong stated that he
orally warned Chen for a similar offense prior to that but had
no written record of that oral warning. The two letters to Lee
and Chen, both written on April 22, were the first written warn-
ings of any type issued by the Respondent.
On July 16, Lee received a written warning which stated that
his work performance was “unsatisfactory” because customers
at his table left without paying their bill. The letter noted that
“this is your second and final warning. We expect immediate
correction of the problem otherwise we shall have no alterna-
tive but [sic] consider the termination of your employment.”
The letter advised that his immediate supervisor was available
to answer questions about the letter and “help to improve your
performance or correct the difficulties. . . .”
Mrs. Kong testified that regarding this incident the table in
question was empty for about 30 minutes and she was then told
by Lee that the customer had not paid. She accused Lee of not
being attentive to the table inasmuch as 30 minutes passed be-
fore he realized that the customers had not paid their bill. Lee
explained that the patrons went to the bathroom and did not
return. He was preoccupied for only about five minutes with
helping other customers pay their bill at the cashier’s table and
did not notice that they had left the restaurant without paying
their bill. Mrs. Kong stated that if a waiter leaves his immediate
area to go to the cashier he is still responsible for his table.
It should be noted that the Regional Director dismissed the
Union’s allegation that the issuance of the April 22 and the July
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD980
16 warnings violated the Act, and the General Counsel con-
ceded that she did not seek a finding that those warnings vio-
lated the Act. Nevertheless, the Union agues that based on the
facts adduced at this hearing a violation should be found, but if
not, such evidence constitutes evidence of the Respondent’s
animus toward Lee.
E. The Union
Mr. and Mrs. Kong were out of the United States during May
and June and returned in mid-July. Their son Kevin joined them
in China in the first half of July.
Liu testified that in July, 2005, he discussed with Lee a DOL
notice posted in the restaurant which set forth the legal mini-
mum wage and overtime rates. Lee told him that the wait staff
was not earning the legal minimum wage and that they should
try to be compensated for their lost wages. Liu stated that cap-
tain Evelyn overheard them and asked if they were trying to
“overthrow” the restaurant, noting that she did not believe that
they would remain employed by the Respondent if they were
not receiving the proper pay. Lee answered “yes” and walked
away. Evelyn then told Liu that she would wait for Susan Kong
to return to determine whether Lee would be discharged. Eve-
lyn did not testify.
In mid July, 2005, Liu and Lee were told by employee Yu
Chuan Chu that the previous day he went to the Union and
learned that he should be protesting many aspects of his work.
Chu suggested that they visit the Union together. On about July
14 or 15, Liu and Lee visited the Union and presented their
paystubs and a warning letter that Lee had received for refusing
to pay an unpaid customer check.10 The Union agent said that
the paystubs improperly omitted the number of hours worked
and the hourly rate.11 The following day, Liu and Lee told their
co-workers what they were told by the Union agent, and what
steps they should take to correct what they considered the Re-
spondent’s improper actions.
Liu stated that he told captain James that he visited the Un-
ion with Lee and learned that the information on the paystubs
were wrong. James used the Respondent’s computer to calcu-
late how many hours they worked and how much pay they re-
ceived and agreed with Liu that “there was a big different”
[sic]. On about July 20, at least eight employees, including Lee,
Ping Yuan Wu, Yu Zhen Wang and Yu Chuan Chu visited the
Union. Eleven days later Lee was discharged.
The Respondent argues that Liu’s testimony that he told
James that he and Lee visited the Union is not credible because
Liu had no reason to volunteer that information to someone he
believed was associated with management. In making this ar-
gument, the Respondent overlooks Liu’s detailed testimony that
he and Lee brought their paystubs to the Union and were told
that the stubs improperly omitted certain information and then

10 The only authorization card received in evidence was one signed
by Lee and dated August 3, three days after his discharge.
11 Liu’s pre-trial affidavit makes no mention of a July, 2005 union
meeting but his testimony is corroborated by Lee who stated that he
went to the Union with Liu. In this regard Lee’s testimony was some-
what confused about the dates he visited the Union and with whom he
went, but his testimony was credible in that he visited the Union on two
separate occasions and was corroborated by Liu.
sought to verify with James their suspicions that they were not
being paid properly. James then accessed the Respondent’s
computer, and agreed with them that there was a difference
between the hours they worked and the amount they were paid.
Accordingly, Liu testified to precise reasons why he told James
they visited the Union. The employees’ belief that they were
underpaid and then advising James of their belief is supported
by the fact that they later brought a lawsuit against the Respon-
dent alleging such underpayment.
F. The Employees’ Request that they be Permitted to Take
Food from the Buffet Tables
Liu testified that when the wait staff and busgirls ate their
meals, they were not permitted to take food from the buffet
tables used by the customers. Rather, the kitchen prepared two
dishes which they ate. Liu noted, however, that other workers,
including the kitchen employees and cooks, busboys, the host-
ess, cashier and captains took food from the buffet.
Liu stated that on about July 19, he and his co-workers in-
cluding Lee were eating their meal together when Susan Kong
walked past them. The co-workers agreed that Lee would speak
in their behalf. Also present were Kan Pat Kong and Evelyn.
Lee testified that he asked Mrs. Kong that the wait staff and
busgirls be permitted to take food from the buffet for their din-
ner. She replied that they could only take such food when cus-
tomers were no longer in the restaurant when it was about to
close. Lee replied that the employees would not have enough
time to eat at that time because customers did not leave until
9:30 p.m., and the workers had much work to do before the
restaurant closed at 10:00 p.m. He noted that the managers,
captains, busboys, cashiers and part of the kitchen staff were
permitted to take food from the buffet at any time. Liu quoted
Lee as telling Mrs. Kong that management did not respect them
as “human beings.” Mrs. Kong then asked chef Tak who was
also at the meeting to cook different types of food if the wait
staff requested it so they would not get bored with what was
given to them. Liu stated that Susan Kong said that the wait
staff could follow these rules or eat at home, adding that begin-
ning the following day, the wait staff dinner time would be 9:15
p.m. instead of 9:00.
Lee noticed Evelyn standing behind him when he spoke and
noticed that a co-worker gestured to him that she was pointing
at his head.12 Liu stated that Evelyn stood behind Lee and
pointed her finger at his head, saying softly that he (Lee) was a
“shit stirring stick” which in the Chinese dialect means that he
is a “troublemaker.”
Ping Yuan Wu testified that after the meeting Susan Kong
drove her home during which Mrs. Kong told her that the three
busgirls including her were good workers, but that Lee was old
and it would not be easy for him to obtain employment outside
the restaurant13—adding “how come he’s still stir up so much
trouble in our restaurant, and complaining about the food, and
not taste good, things like that?” [sic]
Susan Kong testified that she initiated the meeting while the
employees were dining by asking them how they liked the food.

12 Lee’s pre-trial affidavit makes no mention of Evelyn’s gesture.
13 Lee was 58 years old at the time.
EAST BUFFET & RESTAURANT, INC. 981
She stated that she inquires of her employees more than once
per month whether they liked the food because it was important
that they are happy, which she believed would cause them to
serve the customers in a pleasant way. Accordingly, she was
“very happy” when they complained about the food that was
available for them. Notwithstanding that Mrs. Kong stated that
she welcomed such complaints, as set forth above Wu stated
that during the ride home that night she criticized Lee for com-
plaining about the food and causing trouble in the restaurant.
Mrs. Kong admitted that Lee and other employees com-
plained that evening that they were tiring of the food the
kitchen made for them, and asked why they could not eat from
the buffet. She replied that they could eat from the buffet after
9:30 p.m. on weekdays, adding that they could also leave the
restaurant to have their meals. That hour was selected because
by that time most customers no longer took food from the buf-
fet. She ordered chef Tak to make the food that the workers
requested. Mrs. Kong did not recall whether anyone pointed to
Lee’s head or called him an obscene name.
It should be noted, as set forth above, the employees who at-
tended this meeting visited the Union the next day, July 20.
G. The Discharge of Lee
1. The events of Sunday, July 31
David Lee was employed as a waiter from March, 2004 to
July 31, 2005.
Lee stated that on July 31 he was the only waiter assigned to
his section whereas usually two waiters work in that area. At
about 9:45 p.m. there were no customers in his section and he
prepared to have his dinner. As he obtained a dish he heard a
plate drop and break. He turned to see where the noise came
from but did not see anything. In fact, a girl about 5 years old
dropped a plate at the buffet table. Lee then “rushed” to clean
his plate and “rushed” to eat. He encountered Susan Kong who
said that “something was broken, why didn’t you take care of
it?” Lee answered “where?” Mrs. Kong pointed to the area. Lee
replied that someone was already cleaning it up, and anyway he
had to “rush” to eat his meal, adding that he was the last worker
to eat that night. He then went to eat his meal. Busgirl Zhang
immediately picked up the plate and cleaned the area.
At hearing, Lee gave various reasons for not attending to the
matter: (a) although he heard a plate break he did not see any-
thing and had no idea “what was going on” (b) the broken plate
was not in the direction he was going to obtain food for his
meal (c) he had to have his meal and (d) it was not his job to
clean a broken plate.
Susan Kong testified that she was seated, dining with her
friend Melissa Chiu when she heard a plate break. She stood
and noticed that the noise came from the ice cream machine
area, and at the same time noticed a girl standing there who
appeared frightened. Mrs. Kong turned around and saw Lee
taking a plate from the buffet area. That evening, Lee was as-
signed to the “a,b,c” section which was one or two aisles away
from where the plate dropped. Mrs. Kong did not see any other
employees at that time. She then saw Lee look at the girl, and
Mrs. Kong then sat down, believing that Lee would attend to
the situation. After two or three seconds elapsed, Mrs. Kong
saw Lee look away from the girl. Mrs. Kong stood, saw Lee
leave the area, and she went to the girl. When Mrs. Kong ar-
rived in the area she saw the girl attempt to pick up the broken
plate. She told her not to touch it and the girl left the area. Mrs.
Kong raised and waved her hand, a gesture meaning that she
needed help.
Busgirl Ping Zhang14 had just finished her dinner and was
walking near that area. She immediately picked up the plate and
cleaned its contents from the floor. She saw no one next to the
plate. She stated that she picked up the plate without being
asked to do so because she was responsible for that area. She
did so quickly because she was anxious to go home. She did not
notice whether any busboys were in the area.
Mrs. Kong testified that she approached Lee who was return-
ing from washing his plate, and asked him why he did not help
the girl. At that time, Zhang was still cleaning the plate. Lee
replied that “someone will do it.” Mrs. Kong answered that
there was no one there at that time. In this respect her testimony
is suspect since she later testified that someone was cleaning
the plate before she approached Lee. Lee responded that he had
to eat his dinner before all the food was gone. Mrs. Kong re-
turned to her seat, resumed her dinner and Lee went to the party
room to eat his meal. Melissa Chiu, a friend of Mrs. Kong who
dined with her that night and who followed Mrs. Kong to the
scene of the broken plate because she was “nosy” corroborated
Mrs. Kong’s testimony regarding her warning to the girl and
her conversation with Lee. Curiously, Chiu denied that the plate
was being cleaned while Mrs. Kong spoke with Lee although
Mrs. Kong said the plate was being cleaned at that time.
Chiu testified that the conversation between Lee and Mrs.
Kong took place in the Mandarin dialect. Mrs. Kong stated that
Lee spoke in Cantonese, and that she spoke in either Mandarin,
Cantonese or both. Other employees stated that they both spoke
in Cantonese.
Within the next thirty minutes, Mrs. Kong thought about the
incident and concluded that Lee’s actions were irresponsible.
She was concerned about the girl’s safety in attempting to pick
up the plate and was offended by Lee’s attitude in ignoring that
patron, telling Mrs. Kong that someone would take care of it
and that he had to eat, and not accepting responsibility for his
wrongdoing. She conceded that ordinarily two waiters are as-
signed to the “a,b,c” section on a Sunday night and did not
know why Lee did not take his break earlier, but only saw him
in the area and thus blamed him for not going to the girl’s aid.
She emphasized that she did not expect Lee to pick up the plate
or clean the floor, but to stand by the girl and call someone to
clean the area. Mrs. Kong stated that a waiter’s first responsi-
bility is to serve the customer and ensure her safety.
Mrs. Kong stated that in deciding whether to fire Lee, she
considered the fact that she had previously orally warned Lee
about customer complaints, and that he had prior written warn-
ings.15 In this regard, Mrs. Kong testified that prior to March,

14 Ping Zhang was sometimes referred to as Ping Chang or Ping
Zang. Hereafter, she will be referred to as Ping Zhang, the name she
gave when she testified and the name in which an offer of reinstatement
was made.
15 The fact that Mrs. Kong’s pre-trial affidavit did not mention that
customer complaints were a reason for firing him does not contradict
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD982
2005, she received a number of complaints from customers
about Lee’s service. For example, she received more than two
complaints that Lee spoke with customers he liked and ignored
other customers, disregarding their requests for more bever-
ages. She also received two or more additional complaints that
if the customer left a poor tip or no tip, Lee would not provide
good service when they returned to the restaurant.16 Mrs. Kong
orally reprimanded Lee for such complaints. His excuse was
that he was busy. She did not make a written record of the
complaints or her reprimands, but she stated that she told two
or three employees, without naming Lee, that she did not want
such practices to continue. She did not recall who she spoke to.
Kevin Kong also testified that he received more than five
customer complaints about Lee’s service which constituted
slightly more complaints about him than he received concern-
ing the service of other waiters. Such complaints included that
he was absent when the customer was ready to pay his bill.
Kong stated that he orally warned Lee at least once when he
received a complaint but did not make a written record of any
of those oral warnings. Kong also stated that Lee had trouble
reading customer bills but that did not result in any unpaid bills
or bills delivered to the wrong table. Lee testified that he was
never told that customers complained about his service, and he
does not believe that he was orally warned about any customer
complaints.
Shortly after the incident on July 31, Mrs. Kong told Kevin
Kong what happened and said she wanted to terminate Lee, and
also told captain James to advise Lee that he was discharged.17]
James told Lee that Mrs. Kong said that he could finish his
meal and not return to work the next day. Li Feng Liu stated
that he was eating with Lee at that time and heard James tell
him that Mrs. Kong said that Lee did not help clean the broken
plate and he was fired. Lee then asked Mrs. Kong why she fired
him. She said that something was broken and he was irrespon-
sible in not attending to it. Lee replied that he had to rush to
have his meal and someone was already cleaning it up.
Employee Liu heard the plate drop. He took a brief look and
saw the girl, who appeared to be frightened, stand there “a very
short moment. After the plate was dropped on the ground and it
seems she quickly walk away.” The implication of his testi-
mony was that he did not see her attempting to pick up the plate
before she left the area, and he did not see Mrs. Kong approach
or speak to her. Liu saw the girl drop the plate, stand at the
scene a moment and then leave. This is supported by Mrs.
Kong’s testimony that when she heard the plate break she stood
up, looked, and then sat down. She then got up and walked over
to the area. Clearly, in that period of time, if Liu is credited, the
girl would have left the area before Mrs. Kong arrived at the
scene.

her testimony that she considered them in making the decision to ter-
minate him.
16 The tips are shared by the wait staff, busboys, busgirls, host and
captains.
17 The testimony of Mrs. Kong and Kevin Kong were somewhat con-
tradictory on this point. Mrs. Kong stated that she told her son that she
wanted to fire Lee, but Kevin stated that she told him that she had al-
ready discharged him.
Liu stated that he pretended not to have seen the incident but
believed that Susan Kong saw him as he was walking in her
direction. He proceeded to the kitchen to obtain some food for
his meal. He believed that the matter was not his responsibility
since cleaning a dropped plate was the responsibility of the
busboy (and in fact he saw two busboys in the area at that time,
but no other waiters other than Lee) or the cleaning person, and
anyway he was late for his meal, which was usually at 9:00
p.m.18 The Respondent argues that his testimony about the
presence of the busboys is not credible since Liu also stated that
generally the busboys leave the dining room at 9:30 p.m. to
change their clothes and prepare to leave the restaurant. He
explained, however, that after changing they resume their ser-
vice in the dining room awaiting the “last call” which is the
final opportunity for customers to obtain food from the buffet.
On his way out of the kitchen Liu overheard Susan Kong ask
Lee in a “very loud and very rude” voice why he did not clean
up the area with the broken plate to which Lee responded that it
was not his job and he was on his way to have his dinner. At
that moment, Liu saw a busgirl cleaning up the broken plate.
Liu denied seeing Melissa Chu standing behind Mrs. Kong
when Mrs. Kong spoke to Lee.
Ping Yuan Wu testified that when she heard the plate drop
she saw Lee on his way to wash his plate. She did not stop what
she was doing which was cleaning the salad bar. She heard
Susan Kong say “David, the plate just dropped right there, how
come you didn’t come to clean it up?” Lee replied that he was
not in the immediate area and only heard the noise and had to
eat his dinner. During that conversation, Wu noticed that bus-
girl Zhang was cleaning up the broken plate.
Thus all of the General Counsel’s witnesses testified that
Mrs. Kong criticized Lee for not cleaning the broken plate and
did not mention his alleged failure to protect the customer from
harm. Lee said that when he asked Mrs. Kong why he was fired
she only mentioned the fact that he did not clean up the broken
plate. No mention was made of the child.
An incident report written by Kevin Kong and dated July 31
stated the following:
A customer (who appeared to be 5 or 6 years old) dropped
and shattered a plate in David’s section of charge. Rather than
protect the customer from the broken plate, David simply
looked and walked away. When asked why he did not help
the customer, David replied that someone else would have
helped the customer. When it was pointed out to him that no-
body else was around to see the incident, David said that
should he stay and help the customer, there may not have
been enough food left for him for his dinner meal.
Due to his lack of responsibility and concern for the customer,
and a record of prior incidences, David was terminated from
his position.
Mrs. Kong testified that at the time she decided to discharge
Lee she had no knowledge that he engaged in any activities in

18 His pre-trial affidavit states that there were a “few other waiters in
that area.” By that he meant that there were other waiters in the restau-
rant but not where the plate was dropped.
EAST BUFFET & RESTAURANT, INC. 983
behalf of the Union and she had not formed an opinion as to
whether any employee had complained to the DOL.
Mrs. Kong testified that she terminated more than ten em-
ployees from the time the restaurant opened in 1998 to July 31,
2005. The reasons for such discharges included laziness, steal-
ing tips, and being impolite to customers. Kevin Kong testified
that he has fired workers before and after Lee was discharged
because they were not skilled enough to do the work, and be-
cause they were not working effectively. However, he could not
recall a specific instance of such a discharge. Significantly, no
explanation was given for the failure to discharge Lee for simi-
lar instances of misconduct prior to July 31.
Kevin Kong testified that at the time of Lee’s discharge he
was not aware that any employees had engaged in any union
activity, nor was he aware that Lee had signed a card for the
Union or whether any employees met with the Union.
At hearing, Lee conceded that a patron could be hurt if a
broken plate remained on the floor. However, since he did not
see it and did not know what happened he did not investigate to
see what the problem was. He stated that customers frequently
drop plates in the restaurant, but it is the responsibility of the
busboys or the cleaning person to pick up the plate and clean
the area. On July 31, he did not do so because two busboys
were in the immediate area, he was late for dinner and thereaf-
ter had to finish his work and go home. He testified that he does
not have to ask a busboy to do such work because he knows his
job, and that if he is the only person in the area he would report
the spill and ask a busboy to clean the area. Yu Chuan Chu
testified that although a broken plate may cause a dangerous
condition it was not the wait staff’s responsibility to make sure
that the area was cleaned or the dangerous condition rectified.
Chu added that he would not pick up anything from the floor or
clean the floor because of concern that his hands would be in
contact with contaminated items and he would then have to
serve customers. He stated that such a matter was the job of the
busboys and the cleaning person. However, he conceded that if
he saw a broken plate he would bring it to the attention of
someone who could attend to it.
Kevin Kong stated that it is the waiter’s job to make sure his
assigned area was clean by picking up food debris or spills on
the floor or at their tables or adjacent to the tables they are as-
signed. He noted that the waiters have the authority to ask a
busboy or the cleaning person to help them. Kong added that he
did not expect the waiter to do heavy cleaning or scrubbing, but
did expect him to pick up dropped food. After doing so the
waiter is expected to clean his hands. Kong has instructed wait-
ers to clean the area to which they were assigned before and
after the Union petition was filed on August 4, 2005.
2. The meeting
Immediately after Lee’s discharge Mrs. Kong asked James to
assemble all the workers for a meeting. Liu said that Kan Pat
Kong was also there. Mrs. Kong stated that her purpose in
meeting was to explain why she fired Lee so that the mistake he
made would not be repeated. Lee was present for only the first
part of the meeting which continued for about 1½ hours.
Such a meeting was unprecedented in that no employee
meeting was held when any of the ten or more workers were
terminated prior to July 31 for laziness, stealing or impoliteness
because, as stated by Mrs. Kong, it was obvious that workers
cannot engage in such conduct. Mrs. Kong stated that she held
the meeting upon Lee’s discharge because she wanted to em-
phasize the waiters’ responsibility for customer safety, impress-
ing upon them that they should not leave broken plates on the
floor and that she did not want this to occur again. Another
reason for her holding the meeting was that she heard employ-
ees speaking among themselves, angrily opposing her decision
to fire Lee. In the past no one questioned her decision to fire a
worker and the fact that her employees were upset regarding
Lee’s termination played a “big role” in her decision to have
the meeting and explain why she fired Lee and in consideration
for her employees’ feelings on the matter.
Mrs. Kong testified that she told the workers that Lee saw
the child who broke the plate but was not willing to help her.
She explained that she did not expect him to clean up the plate,
just to stand with the customer to protect her and prevent her
from touching the broken plate. She accused Lee of irresponsi-
bility in ignoring the situation and saying that it was not his job.
Kevin Kong quoted his mother as saying that the waiter’s high-
est priority is the safety of the customers, and that instead of
helping the girl he walked away and went to get his dinner.
A number of the employees argued that Lee was a good
worker who assisted his customers, and that his discharge was
unfair and that he should be reinstated. Mrs. Kong testified
however, that some employees said that he was “unlucky” be-
cause Mrs. Kong saw him ignoring the girl.19 Susan Kong
insisted that he was irresponsible, and that he had already re-
ceived two warning letters—one for refusing to pay an unpaid
bill, and therefore she could no longer keep him in the Respon-
dent’s employ. Chu said that it was not fair to fire him for such
a “minor incident” and that Lee would sue the Respondent.
Susan Kong said he could sue her if he wanted.
Liu testified that Mrs. Kong asked that Lee return the follow-
ing day to explain to her what happened. Mrs. Kong, however,
testified that since her main purpose in meeting was to empha-
size that such misconduct should not happen again and because
some employees said that Lee was a good worker, she told
those assembled that if Lee apologized for his conduct and
promised not to repeat it, she would consider reinstating him.
At hearing, Mrs. Kong stated that she told the employees to tell
Lee to call her. Kevin Kong stated that his mother said that she
would consider reinstating Lee if he came to her and apolo-
gized for his actions. Liu stated that at the end of the meeting,
Susan Kong agreed to have Lee return the following day to
explain to her what had happened, and then return to work. He
did not hear Mrs. Kong say that Lee had to call her, and did not
recall her require that Lee apologize.
The testimony of Mrs. Kong and her son are contradicted by
James’ actions in telling Lee later that night that he spoke to
Mrs. Kong and she directed that Lee not return to work. Even if
Mrs. Kong expressed a wish that Lee speak to her the following
day, such an alleged desire was not sincere since captain James

19 Li Feng Liu denied hearing any employee say that Lee was
unlucky by being observed by Mrs. Kong ignoring the girl.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD984
told Lee later that night that Mrs. Kong did not want him to
return to work.
Lee testified that at the meeting he told Mrs. Kong that if he
actually saw the broken plate he would attend to it, but since he
did not know what happened on the other side of the buffet he
did not. Lee quoted Jenny as telling Mrs. Kong that he always
attends to the needs of the patrons. Lee left the meeting before
it ended, and was called later that night by his co-workers and
told that he could return to work the next day. However, Lee
later testified that after he left the meeting he remained in the
parking lot and was told by his fellow employees that Mrs.
Kong expected him to contact her the following day.
Later however, captain James called Lee at home and told
him that he had spoken to Mrs. Kong, and Lee could not return
to work. Lee protested that his co-workers told him that he was
supposed to meet with Mrs. Kong the following day. James
called later and said he spoke to Mrs. Kong who said that he
could not return to work the next day. Lee replied that Liu said
that Mrs. Kong agreed that Lee could meet with her the follow-
ing day and explain what happened.
3. The events of August 1
Lee returned to the restaurant the following morning, August
1. Kevin Kong told him that he need not have come back to
work since his mother fired him the previous evening. Lee
asked for a letter of discharge and was told that, on advice of
counsel, a letter need not be given.
Lee later testified that Kong refused to permit him to work,
telling him that “‘you claim your brothers and sisters told you
to come back to work. In fact, this restaurant doesn’t belong to
your brothers and sisters. . . .” From the parking lot Lee phoned
the restaurant, telling James that he was told by Liu that at the
meeting the prior night it was agreed that he could return to
work, but he was not permitted to do so. Accordingly, he told
James that he wanted to speak to Mrs. Kong. James gave Lee
her phone number. Lee stated that he called Mrs. Kong at 11:30
a.m. and left a message with his name and phone number. No
one returned his message. Lee called four or five times thereaf-
ter, each time leaving a message but he received no return call.
Lee’s co-workers Bi Chen, Lin, and Liu arrived at work that
morning and told Kevin Kong that Mrs. Kong said she would
reinstate Lee, and they said they would protest the denial of his
reinstatement saying that they feared that they could also be
discharged at any time without an explanation. They protested
by sitting down first in the dining room, and then leaving and
sitting down outside the restaurant in the parking lot. Liu testi-
fied that Kevin told them that if they did not return to work
immediately they would be fired. Lee first testified that Kong
told them that if they did not return to work immediately they
were fired, but then testified that he said that if they did not
return he would consider that they quit. Lee added that the
workers then said that they are not refusing to work “just sitting
down to demand an answer.” Shortly thereafter, Kevin Kong,
accompanied by the cook, asked them if they wanted to work.
They decided to return to work and walked inside at about
11:40 a.m.
Kevin Kong testified that he saw Lee arrive at 11:00 a.m.
with waiters Chu, Liu and Bi Chen. He asked Lee why he was
there, but testified that he thought that Lee came to apologize.
However, Lee replied that the “brotherhood” told him to return
to work, according to Kong, “as if he owns the place.” Kong
responded that his mother did not tell him to return to work. In
this connection, it is odd that Kevin asked Lee why he was
present since he testified that his mother said the previous eve-
ning that she would consider reinstating him if he came to her
and apologized.
Kevin further stated that the other waiters told him that if he
did not reinstate Lee they would quit. Kong said that if they
quit he would be unable to do anything about it, denying that he
threatened them with discharge if they did not return to work.
That testimony is corroborated by Lee, set forth above. They all
left the restaurant and went into the parking lot. Kong went
outside and asked what they wanted. They said they wanted
Lee reinstated. Kong said that his mother did not say that she
would reinstate Lee and he could not overrule that decision.
The waiters other than Lee then returned to work at about 11:30
a.m.
Mrs. Kong testified that Kevin told her that Lee came to the
restaurant and said that his “brotherhood” told him to return to
work. Mrs. Kong told Kevin that she told his co-workers that he
“had to call me” to apologize and she would then reinstate him,
and if he did not she would not reinstate him. She did not con-
sider Lee’s statement that his “brotherhood” told him to return
as an apology, and refused to reinstate him. I note, however,
that even before Lee’s return to the restaurant the next day he
was told by captain James that Mrs. Kong did not want him to
come back to work. In addition, upon his arrival, Kevin Kong
told Lee that his mother did not want to reinstate him. Accord-
ingly, I cannot credit Mrs. Kong’s testimony that Lee’s apology
would have caused Mrs. Kong to reinstate him.
H. The Letter of Protest and the Events of August 2 and 3
The workers prepared a “letter of protest” which Liu and
Chu presented to Kevin Kong and captain James on August 2.
James translated the letter for Kevin Kong who said that he
would call his mother.
The letter said, essentially, that all the waiters protested the
firing of Lee, adding that they were also protesting the Respon-
dent’s “unreasonable, unfair and unlawful” practice of requir-
ing them to pay bills unpaid by customers. The letter noted that
three months before, Lee protested this practice “for all of us”
and that the Respondent at that time began a “series of warning
measures and procedures” pursuant to which he was picked on
and suffered “retaliation” until his discharge. According to the
letter, such discipline included warning letters given to Lee on
April 20 and in July because his customers failed to pay their
bills. The letter noted that “under the leadership of David Lee
the entire wait staff met with Susan Kong to ask” that they be
permitted to take their meals from the buffet, which it termed
the “most basic benefit for us.” Finally, the letter stated the
workers’ belief that Lee was discharged for “fighting” for the
security of the workers, and not because of the “so-called rea-
son” that he did not attend to the girl who dropped the plate.
The letter concluded that the workers do not feel secure and
have no job security. It was signed by employees including Yu
EAST BUFFET & RESTAURANT, INC. 985
Zhen Wang, Liu, Jenny, Bi Chen, Lee, Yu Chuan Chu, Ping
Zhang, Hui Ma, Liu, and busboys Eloy Hernandez and Raul.20
Mrs. Kong conceded that after receiving the letter she initi-
ated and held separate, private conversations with her workers
that day and the next day. She testified that she spoke to her
workers, first to explain why she fired Lee, and then to ask
them whether she should reinstate him. At hearing, she stated
that she had been on vacation from late May to July 10 and was
therefore was not familiar with the restaurant’s operation or
Lee’s performance during that time. She therefore wanted to
learn what was happening in the restaurant during her absence
and if anything was “wrong.” Mrs. Kong stated that this was
the first time she received a protest letter following the dis-
charge of a worker. She believed that perhaps she did some-
thing wrong and wanted to find out more about it.
She asked her employees if she should reinstate Lee. She
first stated that in the past she asked her employees what they
would do if they were her, but later denied asking them that
question. According to Mrs. Kong, all the employees except
Wang, Ping Yuan Wu and Chu said that she was justified in
firing Lee. Those three workers said that he should be rein-
stated. Liu expressed his fear that he and other workers would
be fired because of the “way you fired David Lee.” Mrs. Kong
attempted to reassure him by saying that as long as the workers
did their jobs well they would not be fired without cause.
Mrs. Kong asked the workers during their meetings whether
Lee was performing his job well when she was away. She
quoted Ping Zhang as saying that occasionally he was lazy and
that she would not reinstate him. Zhang denied making those
comments to her.21
The employees’ versions of those meetings follow:
Liu testified that Susan Kong asked him who wrote the letter
of protest. Liu answered that the identity of the person who
wrote it “does not matter as long as the letter is factual.” Kan
Pat Kong who was at the meeting told Liu that when captain
Raymond left the restaurant he intended to promote Liu to his
position but instead promoted Evelyn because she had been
employed longer. Liu directed the conversation back to the
letter and said that these are our “ground rules”—the Respon-
dent should not have fired Lee for such a “minor” reason. Liu
argued that Lee was not irresponsible and had been employed
by the Respondent for more than one year and no one com-
plained that he was irresponsible. He cited a case involving
Evelyn’s alleged irresponsibility. Liu told Susan Kong that
Lee’s firing made the workers feel “very insecure” because if
Lee could be fired for that reason they feared that they would
be similarly treated.
Ping Yuan Wu testified that on August 2, Mrs. Kong said
that she had heard from Kevin that Wu signed the protest letter.

20 Li Feng Liu adequately explained that he told the Spanish speak-
ing busboys in English what the letter said and asked them to sign.
21 Mrs. Kong conceded that it was “odd” that Zhang would say nega-
tive things about Lee yet sign a letter asking that he be reinstated. I
cannot credit Mrs. Kong’s testimony that Zhang told her that she did
not know that Lee was discharged when Zhang signed the letter asking
for his reinstatement since it is obvious that in requesting his reinstate-
ment she must have known that he was terminated.
Wu admitting signing the letter. Kong asked that they speak as
friends and asked for her opinion of the decision to fire Lee.
Wu answered that the decision was wrong since the patron
dropped the plate and Lee was not nearby. She cited an instance
where Lee helped a child who burned his hands, and said that
his customers liked him. Kong replied that Lee was old, some-
one accused him of stealing tips and captain Raymond had once
suggested that she fire him but she “still gave him a chance”
but now regretted not discharging him earlier. Wu called
Kong’s complaints about Lee “minor” and asked that he be
reinstated.
Wu further testified that she asked Mrs. Kong whether she
asked Lee to return to work the previous day, and Mrs. Kong
replied that Lee told James that his brothers and sisters wanted
him to return to work “and because of that. . . I just don’t want
him to come back.”
Kong then said that she did not want Lee to return to work
“because once he’s back, there would be more troubles,” add-
ing that since her son Kevin was an adult he could easily obtain
employment elsewhere and she could “just close down this
business.” She also said that even if she had to close the restau-
rant she would not allow Lee to return to work.
Zhang was asked by Mrs. Kong why she signed the protest
letter. Zhang replied that she signed in order to protest the dis-
charge of Lee. Mrs. Kong told her that Raymond wanted to fire
Lee prior to this incident but she did not because Lee was old
and she believed that she would just keep him employed. Susan
Kong asked what she thought of Lee as a worker and Zhang
responded that employees are sometimes good and sometimes
make mistakes. Zhang testified that Mrs. Kong also told her
that Lee “stirred up” many things including complaining about
meals for the staff and by addressing the boss at that time.
On August 3, Lee and Yu Chuan Chu signed cards applying
for membership in the Union. That day, Mrs. Kong asked Chu
if he signed the letter of protest and whether anyone forced him
to sign. He admitted signing it but denied that anyone forced
him to do so. She said that she wanted to find out who forced
employees to sign the letter. She asked why he signed it and
Chu explained that Lee was discharged without cause.22 Kong
then asked what he would do if he were she. Chu said that he
would reinstate Lee. Kong replied that Lee was “irresponsible.”
I. The Events of August 4 through 8
On August 4, the Union filed a petition for representation
seeking a unit of dining room employees, wait staff and busper-
sons. That day, Yu Chuan Chu gave a copy of the Union’s peti-
tion to captain James.23 James called Kevin Kong and told him
that a union petition was faxed to the restaurant. Kevin in-
formed Mrs. Kong who was with him at the time. Mrs. Kong
instructed that it be faxed to their attorney. Kevin testified that
he and his mother spoke about why he believed that the waiters
wanted union representation, but they did not try to identify
which workers they thought sought the union’s representation.

22 Pursuant to the General Counsel’s unopposed motion, page 370,
line 6 is corrected to state that Mrs. Kong “fired” Lee.
23 Chu testified that he gave James the petition on August 1 which
could not be correct since it was filed on August 4.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD986
During the lunch hour, a meeting was held with waiters Liu,
Chu, Wang, Jenny, Liu, Bi Chen, Lin, Ma, and owners Susan
Kong and her husband. Kevin Kong testified that he also at-
tended the meeting, and stated that he began the meeting by
asking Liu “why are you guys doing this?” He asked Liu that
question because he believed that he was one of the employees
who “wanted to . . . start a union.” However, Kevin Kong later
testified that he did not know or suspect who was responsible
for the Union’s petition. Kevin Kong further stated that before
receiving the petition on August 5, he was not aware that any
employees had contacted a union or had engaged in activities in
behalf of a union.
Liu testified that Mrs. Kong asked the same question—why
did they join the Union. Liu replied that they wanted to protect
their jobs and to obtain Lee’s reinstatement. Kevin replied that
the restaurant would not fire them and asked why they were
frightened. Liu answered that they wanted to make sure that
their jobs are protected and to have Lee return to work. Accord-
ing to Kevin, his mother said that she would rather close the
restaurant than reinstate someone as irresponsible as Lee. Kevin
denied hearing any other reference by Mrs. Kong to closing the
restaurant.
Liu testified that Susan Kong told them, “you guys were
planning to organize a union. We will absolutely disagree for
you guys to do that.” Chu asked what was wrong with a union,
adding that unions are “everywhere” in the United States and
the restaurant could continue to operate with a union. Kan Pat
Kong answered that he had consulted his attorney, and “if you
guys have a union, then we will have to handle everything ac-
cording to the law”—”in the future we have to report to the tax
for every penny you made and you guys would be required to
have legal status.” Mr. Kong then told Wang that she would
have to provide a social security card. Susan Kong added that
“we’d then have to have many new rules regarding the work in
the restaurant.” Liu stated that either Mr. or Mrs. Kong then
said that the “worst case would be just let us close down the
business.” Mr. Kong did not testify.
Yu Chuan Chu testified that Susan Kong opened the meeting
by saying that she received a Union letter, asking “why did you
join the Union?” The employees answered that they joined
because of the way in which she fired Lee and in order to ob-
tain job protection. Mrs. Kong told them that she “would not
allow us to create a union or supporting a union.” [sic] Mr.
Kong said that if they join the Union he would have to obtain
immigration documentation of the workers and those who did
not possess such papers would be fired. Mrs. Kong said that if
they joined the Union she “was going to have to close the res-
taurant.” Mrs. Kong then asked if she reinstated Lee “what else
do you want?” They replied that they just wanted Lee to be
rehired. Mrs. Kong said that they would meet later.
Mrs. Kong testified that prior to the company’s receipt of the
petition on August 5, she was not aware that the employees
sought to join a union, nor did she know which workers sup-
ported the union. She described the meeting that afternoon. It
began with Kevin Kong speaking to Liu. She joined the conver-
sation and soon more employees participated in the discussion
at their lunch break. The main point was the demand for Lee’s
reinstatement, with some employees saying that if he was not
reinstated she will be sued and get in trouble. Mrs. Kong ac-
cused those workers of threatening her and stated that she
would rather close the restaurant than rehire Lee because it
would be “totally destroyed.” Mrs. Kong denied that there was
any mention of the Union because she did not want to speak
about that subject. She also denied that the workers told her that
one reason they wanted a union was to obtain Lee’s reinstate-
ment.
Susan Kong denied hearing Kevin or her husband ask the
workers if they joined the Union. She denied saying that joining
the Union would be futile or would not help them. She further
denied threatening the workers that if they joined the Union she
would have to examine their documentation, or that she would
close the restaurant if they became union members. Mrs. Kong
also denied asking Wang or Ping Yuan Wu any questions con-
cerning the Union or whether they supported the Union. I can-
not credit this last denial concerning Ping Yuan Wu because
Mrs. Kong conceded asking Wu if anything was wrong with
her because many of her workers wanted to join a union.
Kevin Kong similarly denied saying and did not hear his
mother say that it would be futile to join the union. He also
denied that any management official said that the Respondent
would have to obtain documentation of legal immigration status
if the Union was successful in organizing it.
Mrs. Kong conceded calling several employees, including
Ping Yuan Wu, Chang Ping and Wang into her basement office
where she held individual meetings with them. Mrs. Kong ex-
plained that since she was absent from the restaurant for two
months she tried to learn if there was something wrong or
whether something happened while she was away. Wu told her
that everything was all right. She asked Wu what she thought of
her (Mrs. Kong) “because since the petition, that lot of people
want to join a union, I was wondering, is maybe something
wrong with me?” She also asked Wu if there was anything
wrong in the restaurant. Wu replied that nothing was wrong.
Yu Zhen Wang testified that she was asked to report to
Susan Kong’s office where they met alone. Kong asked her if
she signed the protest letter and if so why she signed. Wang
answered that she signed the letter so that Lee would be rein-
stated. Mrs. Kong asked her what Lee was like “as a person”
and Wang answered that many customers liked his service.
Mrs. Kong then asked Wang if she joined the Union and Wang
denied doing so. Mrs. Kong then said that if Wang joined the
Union she would have to treat her “according to all the rules
and regulations” including requiring that she present a social
security number, but adding that if she did not have one she
could have someone obtain a number for her. Mrs. Kong ad-
vised her to go home and “think through” what she told her.
Busgirl Ping Yuan Wu testified that on August 4, Susan
Kong spoke to her in her office, asking “did you join the union
also?” Wu denied joining the union. Kong asked her what the
benefits of union membership were. Wu replied that in China
union members who were sick were paid by the union. Kong
answered that she “don’t [sic] like you guys to join the union.”
Mrs. Kong then said that she wanted to assign her to work at
the salad bar. Wu, who had the most experience at the salad
bar, told her that she did not want to work there because her
health did not permit her to walk up and down the stairs to the
EAST BUFFET & RESTAURANT, INC. 987
basement where the food was prepared and bring it to the salad
bar on the dining room floor. She also said that she did not get
along with the two chefs in the basement. She remained in her
position which was at the hot bar. Mrs. Kong stated that for a
long time, even before the petition was filed, none of the bus-
girls wanted to work as the main salad bar assistant. Wu further
testified that Mrs. Kong told her that her past practice of paying
taxes for Wu would cease since she joined the Union, and
henceforth she would have to pay her own taxes.24
Wang testified that on August 8, Susan Kong told her that
her lawyer or the DOL required her to supply the social security
numbers of her workers and that therefore she was asking
Wang for that document. Wang replied that she does not yet
have it and does not know where she can obtain it. Kong told
her to borrow it from the “amigos,” an apparent reference to the
Hispanic busboys, adding that it could be a “fake social security
card”—”as long as you show it to me it would be fine.” Kong
then asked her if she joined the Union. Wang denied doing so,
and Kong told her that joining the Union would not be good for
her since she is not documented, and Mrs. Kong would have to
“process everything according to the rules.” Wang replied that
in China “everyone” was a member of a union which helped
them obtain benefits and welfare. Kong answered that if she did
not join the Union she (Kong) would “no longer need to proc-
ess everything strictly according to the rules and then that
means I can just work as usual.”
Mrs. Kong testified that although she received legal advice
from March to August, 2005 that immigration forms should be
obtained from her employees, she nevertheless did not begin
requesting such documentation until August, 2005. She stated
that on August 5, 2005 she asked her employees for documen-
tation of their immigration status, and beginning at that time
she began examining more closely the documentation of her
employees to determine whether they were lawfully permitted
to work in the United States. She conceded asking Wang on
two separate occasions for documentation, and that Wang re-
plied that she had not obtained such papers but would get them
as soon as possible. Mrs. Kong denied asking Wang if she
joined or supported the Union, and did not threaten her with
more closely examining her documentation if the Union organ-
ized the employees.
The above indicates that although Mrs. Kong was advised to
check immigration documents as early as March, she did not do
so until August, following Lee’s discharge, her receipt of the
employees’ protest letter and the Union’s petition.
J. Changes in Treatment of the Wait Staff
1. Congregating with each other
Busgirl Yu Zhen Wang testified that in about mid August,
she stood and spoke with co-workers Ping Yuan Wu and John
Ping at the buffet tables where they were assigned. She noted
that when she engaged in such conduct there were few or no
customers to be served. Susan Kong approached and told them
that “from now on you are no longer supposed to stand together

24 Wu’s pre-trial affidavit did not mention Mrs. Kong’s alleged com-
ment about the payment of taxes although she said she told the Board
agent about it.
or to talk to each other.” Prior to that time Wang was never
criticized for standing with or speaking to her fellow workers,
and in fact Mrs. Kong would occasionally join their conversa-
tion. Ping Yuan Wu testified that Mrs. Kong first gave them
that instruction on August 2. She conceded that she had a dis-
pute with co-worker Jenny that day and Mrs. Kong asked them
to separate themselves and stop arguing, and indeed Wu stated
that on each occasion that she told them not to speak to each
other she said they had to stop arguing. Wu stated that prior to
August 2 she was permitted to speak with her co-workers dur-
ing work hours and was never told that they could not do so.
Wu also testified that on August 4, Mrs. Kong told the workers
that they could not sit or stand in groups or have their meals
together for thirty minutes as they had previously.25 Rather,
they had to eat in two groups, with each group taking fifteen
minutes for their meal.
Mrs. Kong stated that employees are not permitted to con-
gregate in groups during work hours because in doing so the
employees are not at their assigned sections and would not be
able to serve the customers in those sections. She testified that
she warned them about such conduct before and after the peti-
tion was filed, but found that after its filing employees congre-
gated more frequently. She did not know what they spoke
about.
Kevin Kong stated that restaurant policy permitted employ-
ees to eat in groups during their meal or break time, but work-
ers are not permitted to congregate together during work time
in the dining room area. That practice was in effect before the
petition was filed and was enforced after that time also. Kong
denied that any policy permitted all the waiters to take their
afternoon meal at the same time because customers remaining
in the dining room must be served. The restaurant stops serving
food at 3:00 p.m., at which time food is no longer replenished
at the buffet tables, but customers stay beyond 3:00 and some-
times until 4:00 p.m. Kong said that usually the busgirls eat
their afternoon meal at about 3:00 p.m. and usually eat their
meals together.
2. Picking up food and keeping their area clean
Wang testified that on August 6, Kevin Kong asked her to
clean a small piece of dirt on the floor which she did. She testi-
fied that cleaning the floor was not her responsibility and she
would not ordinarily perform that job since she was a busgirl in
charge of the buffet tables. In contrast, busgirl Ping Yuan Wu
testified that it was her responsibility to pick up small food
items which fall on the floor, but she was not responsible to
clean large items such as ice cream or a water spill which is the
job of the busboys or cleaning person. Mrs. Kong and Kevin
stated that busgirls must clean the area around the buffet table
and the floor under it including picking up dropped food. In
fact, they have instructed the busgirls to do such work before
and after the petition was filed.
Mrs. Kong stated that employees were always responsible
for keeping their assigned section clean which includes picking
up food dropped on the floor. If a small amount fell on the floor

25 Wu’s pre-trial affidavit did not mention these orders by Mrs.
Kong.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD988
the waiter was expected to clean it. If it was a larger amount he
calls the busboy to help.
She instructed waiters regarding such responsibility before
and after the petition was filed, and the frequency of such in-
structions did not change.
3. General criticism, cell phone use and leaving
the Restaurant
Liu testified that after August 5, immediately after he and
others were told by Mrs. Kong that she did not agree with their
decision to join a Union and the Respondent would close the
restaurant and that new rules would be instituted, he was criti-
cized by Susan Kong. For example, when he walked with his
hands behind his back while on duty she told him to put his
hands in front of his body. He was also told by Susan Kong that
he was not dressed neatly. He stated that prior to that time he
was never criticized for such things.
Mrs. Kong also told Liu that he should not speak to co-
worker Ma while on duty. In that instance, she told him that if
he wanted to speak to Ma he should wait until he went home. In
this respect, it should be noted that, according to the Respon-
dent’s written rule, “employees are not allowed to gather to-
gether in small groups, such as three to five people and chatting
each other, nor to talk loudly.” Apparently, therefore, the pro-
hibition against speaking in groups referred only to three or
more people, and not to groups of two, such as Liu and Ma.
Susan Kong also criticized Liu for making a cell phone call
while on duty, telling him that he could not do so. Liu testified
that prior to August 5 he was not criticized for making such
calls. Regarding his cell phone use, when he was spoken to by
Mrs. Kong, the restaurant was not busy, and that other workers,
including the captain, hostess and cashier made cell phone calls
while on duty.
Mrs. Kong testified that certain written rules were posted in
the restaurant since its opening.26 One of the rules was “proper
attire, dress neatly.” She warned those workers who wore wrin-
kled or soiled shirts that they must wear a clean and pressed
shirt. She also told the employees that they must stand erect, in
a professional way. She instructed the workers in this manner
before and after the petition was filed. Kevin Kong gave similar
testimony. He stated that he instructed employees concerning
their posture and having unclean hands. Such a policy has al-
ways been in effect and it was enforced to the same extent be-
fore and after the petition was filed. He stated that the Respon-
dent required its employees to wear clean, white shirts, have a
presentable posture, and also warned them about how they
stood.
Another rule was that workers should stay at their work
posts. Mrs. Kong interpreted this as meaning that the workers
must remain in their assigned section and could not go to an-
other section and speak with workers there; nor could they
leave the building while on duty. Mrs. Kong stated that before
and after the petition was filed she warned employees that they
should not leave the restaurant during work hours. She specifi-
cally recalled that she warned two waiters, Liu, and Ma or Chu,

26 Other more elaborate and detailed rules were first put in writing in
September, 2005, after the strike began.
a few days after the petition was filed. She saw them standing
outside the restaurant at about 1:00 p.m. during work hours
making phone calls or speaking with each other for a long time.
She stated that the frequency of her warnings to employees for
such conduct was the same before and after the petition was
filed. She did not give them a written warning because they
immediately returned to the restaurant.
Mrs. Kong also told Chu and Ma that they could not leave
the restaurant together for a break. At that time they stood out-
side the door to the restaurant during their afternoon break.
Mrs. Kong told them that their job is inside, not outside, and
that she did not hire them to watch the parking lot. Although
Chu did not recall what day of the week that was, he conceded
that if it was a weekday, four waiters were assigned that day,
and thus only two of the four were then available to serve cus-
tomers while he and Ma were outside. Prior to that time Chu
had been permitted to go outside during work hours for a short
break, to make a phone call, or during their meal break when no
customers had to be served and when all the customer bills had
been paid.
Kevin Kong also stated that it is the Respondent’s policy that
employees may not leave the building while they are on duty
while customers are in their section. Such a policy was en-
forced both before and after the petition was filed, and about
once per month he had to remind workers who violated this
policy. He further stated that during the period of time that
employees are not on duty—between 3:15 p.m. and 4:15 or
4:30, and during their dinner meal after 9:15 p.m., until closing
time they are permitted to leave the restaurant unless customers
remain in their assigned section.
Cell phone use was prohibited while on duty. However, in an
emergency Mrs. Kong permitted the workers to make a cell
phone call but they should try not to do so during work hours.
She also prohibited them from making such calls inside the
restaurant or when customers were present in the restaurant.
Mrs. Kong admitted that she spoke to Liu about his cell phone
use after the petition was filed. She saw him making a call in-
side the restaurant while on duty. She motioned to him to put
the phone away and he did so. Susan Kong told Chu that he
was no longer permitted to use his cell phone in the restaurant
during work hours.
In this respect, the Respondent’s written work rules first
posted in September, 2005, states that employees “must stay at
our working post. Absolutely no one will be allowed to read
magazines, newspaper or watching television or frequently
making cell phone calls during the work hours. On the other
hand, employees are not allowed to gather together in small
groups, such as three to five people and chatting each other, nor
to talk loudly.”
Chu stated that his cell phone use and meetings with other
employee took place during their lunch break when everyone
leaves the restaurant but at staggered times. Chu first stated that
during the employees’ lunch break there are no customers in
the restaurant, but then conceded that although it is closed to
new customers at 3:00 p.m. some customers remain and con-
tinue eating. He recognized his responsibility to those custom-
ers who are still in his section. Only when he finishes his work
and no customers remain in his section and their bills are paid,
EAST BUFFET & RESTAURANT, INC. 989
can the employees have lunch and leave the restaurant, as de-
scribed. He stated that the employees take turns leaving the
restaurant, smoking and making cell phone calls.
Kevin Kong stated that the Respondent’s policy prohibited
the wait staff and busboys from making personal cell phone
calls while on duty. They could make such calls while on their
meal break. A few times per month prior to August 5 he warned
employees when he noticed them using their phones that they
must finish their call immediately, and they did so. He enforced
this policy with equal frequency before and after the petition
was filed. He further stated that the chefs and cooks are permit-
ted to use cell phones during work hours to order supplies, but
not to make personal calls. They make such calls outside the
restaurant or in the dining area. In addition, kitchen workers are
also permitted to go outside for a short break during work time.
Such an accommodation is given to them when they are not
currently needed in the kitchen and the temperature in the
kitchen is usually very hot. If they are needed in the kitchen a
loudspeaker can be heard outside the restaurant. Kevin Kong
testified inconsistently first that there was no limit on the num-
ber of kitchen workers who can leave the restaurant at such
times, but then testified that they are not all permitted to leave
at the same time.
4. Reassignment of the “Side Work” from the wait staff
Yu Chuan Chu testified that after the August 5 meeting, the
wait staff was no longer assigned to do “side work” such as
cleaning the vegetables. Instead, the busboys performed that
task and the wait staff had to continue to serve customers. Chu
testified that he did not complain about doing side work and did
not tell Mrs. Kong that he did not want to perform such work.
In fact he called such work a “break” from his normal duties
and said that Mrs. Kong “stopped” them from having such a
break by assigning such work to the buspersons. However, Chu
also stated inconsistently that he complained about doing such
work because he believed that, as a waiter, he should not have
to do such work.
Mrs. Kong testified that side work was performed by the
waiters when the restaurant was closed for lunch, which period
of time was taken by the waiters as their lunch break. However,
although the restaurant was closed during lunch, customers who
remained there and continued eating would still have to be
serviced by the wait staff. The practice was that the waiters
would punch out during their meal break but would be asked if
they wanted to do side work. If they did they punched in and
were paid for that time. Chu and other waiters told Mrs. Kong
that they did not like doing side work, complaining that they
performed such work during their break time. She told them
that if they did not want to do the side work they could punch
out at lunch time and leave, but that she thought she was doing
them a “favor” since she paid them for their lunch break when
they did such side work. Accordingly, Mrs. Kong told the wait-
ers that they would no longer perform side work. Thereafter,
the busboys did such work. She could not recall if that change
was made before or after the union petition was filed. She also
noted that they would be paid overtime if they worked more
than 40 hours per week, including the extra time during which
they did the side work.
K. The Warning Notice to Yu Chuan Chu
On August 12, a customer that Chu was serving left a tip on
the table and then left the restaurant without paying his bill.
Chu checked the computer and learned that the bill had not
been paid. He and captain Evelyn looked for the customer but
could not find him. He stated that Evelyn told him that when
the customer left the restaurant she asked if he had paid his bill.
The customer said he did and she took no further action. Chu
told Kevin Kong what Evelyn told him. At the end of the work
day, Kevin Kong gave Chu a written warning which stated that
his customer left the restaurant without paying his bill. The
notice stated that the company policy was that “waiters are
responsible to make sure their customers pay their bills,” and
directed that Chu pay more attention to his customers and make
sure that they pay their bills before leaving the premises.
When Chu received the letter he told Kevin that the cus-
tomer’s failing to pay his bill was not his fault since he looked
for the customer and Evelyn let the customer go even though
she knew that they were looking for him. Chu offered to pay
the amount of the unpaid check, but Kong replied that he did
not have to, but that he would be given the warning letter in-
stead. Chu told him that he (Kong) was just “playing games”
with him and that he would be “in trouble” for doing so.
Kevin Kong stated that Chu made no explanation as to why
the customer’s failing to pay the bill was not his responsibility.
Kong did not recall whether he asked anyone at the front desk
or cashier what happened, and also stated that at that time he
did not know whether Chu had signed a card for the Union or
was involved in any efforts in behalf of the Union. In addition,
Kong testified that prior to that time he spoke to Chu more than
five times regarding customer complaints about his service.
Chu testified that he was unaware of any circumstance in
which an employee did not receive a warning when a customer
he was serving left without paying his check.
L. The August 20 Strike
1. The reasons for the strike
Liu stated that on about August 17, the workers met and
spoke about the Kongs’ proposed changes announced on Au-
gust 5—that they would report their cash income for tax pur-
poses, requests for immigration documentation, and their threat
to close the restaurant if, according to Liu, they “create more
trouble.” They also spoke about Yu Zhen Wang’s August 5
warning from Susan Kong that she must produce immigration
documentation immediately or she would not be permitted to
work.
Liu and the workers thought that they would “compromise”
with the Respondent since the workers had not, in the past,
been asked to provide documentation and he and Hui Ma met
with Mr. and Mrs. Kong and Kevin on Thursday, August 18. At
the meeting, Mrs. Kong announced the following changes,
effective the following Monday: (a) the workers would no
longer receive tips (b) pay would be changed to $13.00 per
hour (c) the employees would only work five days per week
and would punch in at 11:30 a.m. instead of 11:00 and (d) the
workers would now pay $1.50 per meal provided by the Re-
spondent. The Respondent’s attorney noted at the hearing that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD990
all these alleged changes were the subject of charges which
were dismissed by the Regional Office. Counsel for the General
Counsel did not dispute that statement.
Liu testified that Mrs. Kong also said that she would give a
final warning to Yu Zhen Wang that day—that if she did not
provide a social security card by the following day she would
not be permitted to work. Hui Ma asked Mrs. Kong to explain
the figures on his pay stub because the numbers did not seem
correct. Mrs. Kong replied that the Respondent’s accountant
made the computations. She added that the workers must begin
work at once and if not, they could leave immediately. Liu
stated that as he left the meeting Mr. Kong told him that “since
you guys are causing all this trouble, I may just have to close
down the business.”
The following day, August 19, at about 3:00 p.m., Liu and
other workers approached Mrs. Kong and told her that they did
not agree with her statement the previous day that they would
be paid $13.00 without tips because they earned the tips they
received. They also said that they did not agree to a reduction
of work hours. They told her that her requirement that Yu Zhen
Wang produce a social security card was wrong since she was a
long-term employee, Mrs. Kong never required documentation
from other workers, and the workers would “not accept” such a
requirement now.
On about August 19 or 20, the employees engaged in a strike
and picketing. They distributed flyers during the strike. Two
flyers were distributed, both of which complained of their low
wages and loss of tips.
One flyer stated that the actions of the employees was a
“strike against unfair labor practices.” It further stated that after
the Union filed its petition, the workers were interrogated and
threatened that “if we stick with the union they will change our
working conditions for the worst, and they threatened to close
the restaurant.” It also stated that “our boss. . . constantly
threatened to fire those of us who supported the union. Workers
who supported the union were yelled at even if we conducted
day-to-day conversation [sic] with co-workers.” It concluded
that “we will strike for our job back, free from harassment!”
The other flyer stated, in relevant part as follows:
We are on STRIKE because the restaurant violated Federal
and State laws.
The restaurant:
• Fired the worker who stood up for labor rights
• Stole the workers’ tips
• Retaliated against workers who support the union
• Made illegal house rules and regulations
. . . .
We demand East Buffet immediately:
1. Stop all unfair labor practices.
2. Stop stealing tips.
3. Stop the harassment and retaliation against workers
who support the union. Reinstate the workers who were
fired for standing up for their rights.
4. Reimburse all stolen tips, wages and withheld taxes
to all employees.
[Emphasis in original]
Chu testified that the strike was, in part, to protest Lee’s dis-
charge. Liu testified consistently that the main reason for the
strike was not the discharge of Lee. Rather, it was because of
Mrs. Kong’s announcement of the changes in working condi-
tions, as set forth above, on August 18 and her comments that
Wang would have to present a social security card in order to
remain employed and that because of all the trouble the work-
ers caused she may just close the restaurant.
2. The offer to return and the offers of reinstatement
On April 24, 2006, the Union sent a letter to the Respondent
which stated: “On behalf of the following individuals, the 318
Restaurant Workers Union makes an unconditional offer to
return to work: David Lee, Yu Chuan Chu, Bi Chen, Li Feng
Liu, Xiu Zhu Lin, Hui Ma, Yu Zhen Wang, Mei Ying Zou,
Ping Zhang, and Ping Yuan Wu.”
On August 22, 2006, the Respondent sent letters to all of the
above workers except David Lee and Mei Ying Zou. The let-
ters, signed by Kevin Kong, stated that the Respondent “hereby
offers you reinstatement to your position with the Restaurant. If
you wish to accept this offer, please report to the Restaurant
within ten (10) days after receipt of this offer and ask to see
Kevin Kong. If you need additional time to accept this offer,
please contact me at (917) 939–9579.
In separate letters dated September 9, Kevin Kong informed
Yu Chuan Chu, Bi Chen, Li Feng Liu, Xiu Zhu Lin, and Yu
Zhen Wang that at a meeting held with restaurant management
and the respective employee on September 6 (September 15 for
Liu), the employee was “unable to present documents necessary
to complete Form I-9.” The letter included a blank I-9 form and
asked that it be provided to Kevin Kong by October 13, and
that “upon doing so, you will be permitted to commence work.”
The letter noted that if additional time was needed, the em-
ployee must contact Kevin Kong no later than October 13, at
which time the matter would be discussed by the employee and
Kong and “based upon your particular circumstance, how
much, if any, additional time you will be provided to present a
completed Form I-9.” The letter concluded by stating that if the
employee failed to present a completed I-9 form by October 13
or request additional time to do so by October 13, “we will
consider you to have waived any right to reinstatement.”
On October 13, the Union by letter requested additional time
for the following employees to present a completed I-9 form:
Bi Chen, Li Feng Liu, Xiu Zhu Lin, Hui Ma, and Yu Zhen
Wang.
Kevin Kong stated that offers of reinstatement were not
made to Lee or Ms. Zou. Ping Zhang returned to work because
she presented proof of legal documentation. Chu and Ping Wu
were reinstated effective October 4.
3. The replacement of the strikers
Mrs. Kong testified that the Respondent replaced certain em-
ployees who struck on August 20. She met with some of the
applicants and Kevin met with others. They followed the same
procedure and used the same criteria that she used when hiring
regular employees. The replacement workers were not told that
they would be employed only for the duration of the strike.
Three busgirls and five waitresses were hired as replacements.
EAST BUFFET & RESTAURANT, INC. 991
Thereafter, three strikers were rehired. In order to accommo-
date them, one took the place of a replacement employee who
had quit, and one took the position of a replacement worker
who was laid off.
Analysis and Discussion
M. The Supervisory or Agency Status of the Captains
The complaint alleges that the captains are supervisors or
agents of the Respondent.
1. The supervisory status of the captains
Section 2(11) of the Act defines a supervisor as:
Any individual having the authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
The burden of proving supervisory authority is on the party
asserting it, and such proof must be established by a preponder-
ance of the evidence. Oakwood Healthcare, Inc., 348 NLRB
686, 688 (2006); Dean & Deluca, 338 NLRB 1046, 1047
(2003). Purely conclusory evidence is not sufficient to establish
supervisory status. The Board requires evidence that the em-
ployee actually possesses the Section 2(11) authority at issue.
Golden Crest Healthcare Center, 348 NLRB 727, 731 (2006).
The legislative history of this section establishes that the
term “responsibly to direct” sought to distinguish two classes of
workers: true supervisors vested with “genuine management
prerogatives,” and employees such as “straw bosses, lead men,
and set-up men” who are protected by the Act even though they
perform “minor supervisory duties.” NLRB v. Bell Aerospace
Co., 416 U.S. 267, 280–281 (1974) (quoting S. Rep. No. 105,
80th Cong., 1st Sess., 4 (1947). The Board has used caution
“not to construe supervisory status too broadly because the
employee who is deemed a supervisor is denied rights which
the Act is intended to protect.” Chevron Shipping Co., 317
NLRB 379, 381 (1995).
The evidence establishes that the only arguable supervisory
authority possessed and/or exercised by the captains includes
the assignment and responsible direction of employees. In
Oakwood Healthcare, above, the Board adopted definitions for
the terms “assign,” “responsibly to direct,” and “independent
judgment.” Under each of those definitions it is clear that the
captains do not exercise supervisory authority using independ-
ent judgment and cannot be considered statutory supervisors.
“The authority to assign refers to the ‘act of designating an
employee to a place (such as a location, department, or wing),
appointing an employee to a time (such as a shift or overtime
period), or giving significant overall duties, i.e., tasks to an
employee . . . . In sum, to ‘assign’ for purposes of Section
2(11) refers to the . . . designation of significant overall duties
to an employee, not to the . . . ad hoc instruction that the em-
ployee perform a discrete task.’” Oakwood Healthcare, supra at
689.
In order to find that a person responsibly directs employees,
it must be shown that he has the authority to direct the work—
to decide ‘what job shall be undertaken next or who shall do it’
. . . provided that the direction is both ‘responsible’ . . . and
carried out with independent judgment.’” It must also be shown
that the person directing has the authority to take corrective
action, and that the putative supervisor is “accountable for the
performance of the task by the employee, meaning that “some
adverse consequence may befall the one providing the over-
sight if the tasks performed by the employee are not performed
properly.” Oakwood Healthcare, supra at 691, 692.
The above criteria for the finding of supervisory status, as-
signment of workers and responsibly directing them must be
exercised with the use of independent judgment and not be
merely routine or clerical in nature. The use of independent
judgment involves acting or recommending action “free of the
control of others” by the use of forming an opinion or evalua-
tion by discerning and comparing data. Oakwood Healthcare,
supra at 693. Such judgment must involve a degree off discre-
tion that rises above the “routine or clerical.”
Even assuming that the captains assigned and directed the
workers to perform certain tasks such as which section to work
at, such direction to employees who regularly performed such
work constituted “routine” assignments and direction not in-
volving the use of independent judgment. The captain assigned
different tables to different employees on a rotational basis
based on the previous day’s chart. He simply moved workers to
a different table on each succeeding day. Such a task is clearly
routine and does not involve the use of independent judgment.
Croft Metals, Inc., 348 NLRB 717 (2006).
I accordingly find that the captains are not supervisors within
the meaning of the Act. However, the General Counsel and the
Union argue that they were the Respondent’s agents, and that it
is responsible for their statements.
2. The agency status of the captains
In California Gas Transport, 347 NLRB 1314, 1317 (2006),
the Board set forth the standard for determining agency status
of an individual:
The Board applies common law principles of agency in de-
termining whether persons are acting with apparent authority
on behalf of the employer. Apparent authority will result from
a manifestation by the employer to a third party that creates a
reasonable basis for the employee to believe that the employer
authorized the action of the alleged agent. Either the principal
must intend to cause the third person to believe the agent is
authorized to act for him, or the principal should realize that
its conduct is likely to create such a belief. The test for deter-
mining whether a person is an agent of the employer is
whether, under all the circumstances, employees would rea-
sonably believe that the alleged agent was acting on behalf of
management when he took the action in question.
The evidence supports a finding that the captains are agents
of the Respondent. They work each day even in the absence of
the owners or manager Kevin Kong. The captains are the high-
est ranking person when the Respondent’s officials are not
present which is a frequent and regular occurrence. During the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD992
first half of July, 2005, neither the Kongs nor Kevin was pre-
sent. During that time, the captains were in charge of the restau-
rant with a relative who acted as manager. There was no evi-
dence as to how often that manager was present in the restau-
rant.
The captain was expected to notify Kevin Kong if there were
problems with an employee and to report instances of poor
work, and according to a written rule, the employees are di-
rected to follow the instructions of the captains. In addition, a
written rule requires the captain to notify the manager if “any-
thing happens” and of incidents which are “out of the ordi-
nary.”
Based on the above, it is clear and I find that the Respondent
placed its captains in a position which created a reasonable
basis for its employees to believe that the captains were author-
ized to act for it, and that the employees could reasonably be-
lieve that the captains would transmit important information
concerning the activities of the employees to management.
The captains acted as conduits of information from manage-
ment to the employees, and from the employees to manage-
ment. If an employee came to work sick or requested time off,
he asked the captain who communicated with Kevin Kong and
Kong’s instructions were then transmitted by the captain to the
employees. Einhorn Enterprises, 279 NLRB 576, 576 (1986).
The workers were told to listen to the captains’ instructions.
The assignment of work to the wait staff, monitoring the em-
ployees’ work and informing the manager of employee wrong-
doing illustrate that the captains are conduits of information and
therefore agents. Quality Mechanical Insulation, 340 NLRB
798, 802 (2003).
Accordingly, Lee’s answer to captain Evelyn that he could
be expected to “overthrow” the restaurant and Liu’s comment
to captain James that he and Lee visited the Union and were
advised that their pay was not proper are matters which could
be expected to be reported to the Respondent’s officials by its
agents who acted as conduits of information to management.
These are events which are out of the ordinary and would cer-
tainly be considered as matters in which the Respondent’s offi-
cials would be vitally concerned.
Evelyn’s statement that upon Mrs. Kong’s return she would
decide how long Lee would remain employed reflected her
belief in the Respondent’s attitude toward Lee. This finding is
reinforced by Evelyn’s later pointing at Lee and calling him a
troublemaker at a meeting with his co-workers and Mrs. Kong
in which he protested their working conditions. It is important
to note that she made this statement within hearing distance of
Mrs. Kong who did not disavow that comment. In this regard,
Evelyn was part of the Respondent’s management team, and
although not a supervisor her comment reflected her belief that
Lee was causing problems for the Respondent. These incidents
shed light on the Respondent’s motivation for discharging Lee
and demonstrate its animus toward him.
III. CREDIBILITY DETERMINATIONS
Employees Ping Zhang and Li Feng Liu are plaintiffs in a
lawsuit against the Respondent, the Kongs, and captains Ray-
mond, James and Evelyn in which they seek more than $1 mil-
lion in damages for underpayment of wages and other claims.
Ping Zhang said she was very angry at the Kongs but would not
lie under oath in this proceeding. I have taken those matters
into consideration in making the credibility findings herein.
The General Counsel’s witnesses were mutually corrobora-
tive and testified consistently with each other as to the major
events at issue. They testified in a forthright manner. Employee
Zhang is still employed by the Respondent, having been rein-
stated. Her testimony was in distinct contrast to the Respon-
dent’s interest, particularly where she stated that Mrs. Kong
told her that Lee “stirred up” many things including complain-
ing to the boss about meals for the staff. See Mar-Jam Supply,
337 NLRB 337, 346 (2001), citing Shop-Rite Supermarket, 231
NLRB 500 fn. 22 (1977).
I was not impressed with Mrs. Kong’s credibility. She stated
that she inquired of her employees more than once per month
whether they liked the food because it was important that they
be happy, which she believed would lead to them serving the
customers in a pleasant way. Accordingly, she was “very
happy” when they complained about the food that was available
for them. Notwithstanding that Mrs. Kong stated that she wel-
comed such complaints, as set forth above employee Wu stated
that during the ride home that night after the employee meeting
at which they objected to the food, she criticized Lee for com-
plaining about the food and causing trouble in the restaurant.
Mrs. Kong also told employee Zhang that she believed that Lee
was causing trouble by raising the issue of staff food with her.
Mrs. Kong also inconsistently denied asking Wu any ques-
tions regarding the Union, but admitted asking if anything was
wrong with her (Mrs. Kong) because many employees wanted
Union representation.
Kevin Kong was equally unimpressive. He testified inconsis-
tently that immediately after he learned that the petition was
filed he asked Liu “why are you guys doing this?” because he
believed that he was one of the employees who “wanted to . . .
start a union” but then testified that he did not know or suspect
who was responsible for the Union’s petition. Kevin Kong also
testified inconsistently that there was no limit on the number of
kitchen workers who could leave the restaurant for a short
break, but then stated that not all of them could leave at the
same time.
I was not impressed with Melissa Chiu’s testimony. She was
a long-time friend of Mrs. Kong, having gone to high school
with her, and someone who dined at the restaurant frequently.
Indeed, they had gone shopping together on July 31 and then
ate dinner at the restaurant. Notwithstanding that she followed
Mrs. Kong to the area where the plate was dropped because she
was “nosy,” she testified that thereafter she did not inquire of
Mrs. Kong whether Lee was fired that night, only learning that
information three weeks later, at the start of the strike, that Lee
had been discharged.
Further, Chiu denied that anyone cleaned the plate while
Mrs. Kong spoke with Lee despite the fact that Mrs. Kong testi-
fied that the plate was being cleaned during her conversation
with Lee. Indeed, if Chiu was in a position to overhear the con-
versation between Mrs. Kong and Lee, she should also have
been able to notice that the plate was being cleaned as Mrs.
Kong observed. In this respect I credit the testimony of em-
EAST BUFFET & RESTAURANT, INC. 993
ployee Liu who denied seeing Chiu standing behind Mrs. Kong
when she spoke to Lee.
Chiu further incredibly testified that she left the restaurant at
about 10:00 p.m. denying knowing that Mrs. Kong met with
employees that evening. In fact, the meeting with numerous
employees was held, as testified by Mrs. Kong, in the bar area,
which was adjacent to the table at which Chiu was seated. I can
infer that the meeting was loud and noisy and could not have
been missed by Chiu. The meeting, according to Liu’s credited
testimony continued until about 1:00 a.m. Contradicting her
testimony that she left at about 10:00 p.m. and did not know
that Mrs. Kong met with employees that night, Mrs. Kong
stated that Chiu was “very polite” and stayed “very late” wait-
ing for her. Employee Liu also stated that Chiu was at the res-
taurant until the end of the meeting, close to 1:00 a.m. In this
respect I cannot credit Chiu’s testimony that she did not learn
that Lee was fired that night since that was the topic of the
lengthy meeting held near her table.
There was also some discrepancy in the language spoken by
Mrs. Kong and Lee. Chiu was the only alleged observer who
stated that their discussion was in Mandarin. Other employee
witnesses stated that they spoke in the Cantonese dialect.
I accordingly have credited the employee witnesses where
their testimony differs from that of the Respondent’s witnesses.
IV. THE VIOLATIONS OF SECTION 8(A)(1) OF THE ACT.
A. The Interrogation of Employees
The complaint alleges that the Respondent interrogated its
employees concerning (a) whether they joined the Union and
their reasons for doing so (b) what benefits they expected from
the Union and (c) whether they signed the letter protesting
Lee’s discharge.
Section 8(a)(1) of the Act provides that “It shall be an unfair
labor practice for an employer . . . to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in
Section 7.” In considering communications from an employer
to employees, the Board applies the “objective standard of
whether the remark tends to interfere with the free exercise of
employee rights. The Board does not consider either the moti-
vation behind the remark or its actual effect.” Miller Electric
Pump & Plumbing, 334 NLRB 824 (2001).
Although interrogation is not per se unlawful or objection-
able, the test is whether, under all of the circumstances, the
interrogation reasonably tends to interfere with, restrain, or
coerce employees in the exercise of rights guaranteed by the
Act. Rossmore House, 269 NLRB 1176, 1177 (1984). In evalu-
ating the “totality of the circumstances,” the Board considers
such factors as whether the interrogated employee is an open
and active union supporter, the background of the interrogation,
the nature of the information sought, the identity of the ques-
tioner, the place and method of the interrogation, the truthful-
ness of the reply, whether a valid purpose for the interrogation
was communicated to the employee, and whether the employee
was given assurances against reprisals. Rossmore, supra, at
1178 fn. 20; Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964);
Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985).
As set forth above, the employees signed a letter of protest in
which they voiced their disagreement about their working con-
ditions and treatment by the Respondent and the alleged unfair
discharge of Lee. Mrs. Kong held a group meeting and sepa-
rate, private discussions with the workers. I credit the testimony
of employees Liu and Chu that she asked them who wrote the
letter, and her question of Chu as to whether anyone forced him
to sign, and the further testimony of Zhang, as to why she
signed it. I also credit the testimony of Wang that Mrs. Kong
asked her if she signed the letter and why. I also credit the tes-
timony of Wu that Mrs. Kong asked her whether she joined the
Union and inquired as to the benefits of union membership.
Kevin Kong admitted that after he learned that a union peti-
tion had been filed, he asked Liu “why are you guys doing
this.” Liu stated that Mrs. Kong asked him the same question.
Chu stated that Mrs. Kong asked the workers in a meeting why
they joined the Union. Wang also credibly testified that Mrs.
Kong asked her if she joined the Union.
In writing the protest letter, the employees were engaging in
protected, concerted activities. Champion Home Building Co.,
343 NLRB 671, 680 (2004). They voiced their opinions about
their working conditions and sought redress of the conditions
that they believed were unfair and unreasonable. While it is true
that they signed the letter and were therefore open about their
protest, it is equally clear that they were not open and active
union supporters. They visited the Union on two occasions but
did not openly solicit for the union or engage in other obvious
union activities. When viewed under the “totality of the cir-
cumstances” test it is clear that the interrogations set forth
above violated the Act. All of the questioning was undertaken
by the owner of the Respondent, Mrs. Kong and her son who
was the manager. Many of the conversations took place at the
instance of Mrs. Kong and were held in private in her basement
office. No assurances were given that the employees would
suffer no reprisals as a result of their conversations with Mrs.
Kong.
The questioning had no valid purpose. Although it is clear
that Mrs. Kong also asked for the employees’ views on her
firing of Lee during the course of the interrogations, the main
object of the inquiries was to learn who prepared the letter of
protest, to confirm whether the workers signed the letter of
protest, why they did so, and whether anyone forced them to
sign it. All such inquiries are not permissible. United Services
Automobile Assn., 340 NLRB 784, 786 (2003). The Respondent
argues that Mrs. Kong would not have asked them if they
signed the letter since it contained the names of the signatories.
Although she knew whose names appeared on the letter, it is
obvious that by asking them to confirm that they signed it, she
expressed her displeasure at their doing so.
Mrs. Kong claimed that she spoke to the employees about
the protest letter because she did not believe that the wait staff
were aware of her reason for firing Lee and that she wanted to
ask whether she should reinstate him. Inasmuch, according to
her testimony, as she directed that all the employees be present
at the meeting the previous night during which she explained
why she fired Lee, it was therefore unnecessary to privately
interview the employees the next day to repeat her reasons for
discharging him. Further, her inquiries about whether she
should reinstate Lee were disingenuous since she had already
decided, immediately after firing him, that she would not rein-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD994
state him. This is illustrated in the statements of Kevin Kong
and James to Lee that Mrs. Kong told them that she would not
reinstate him. In addition, she admitted that she would rather
close the restaurant than reinstate him.
Equally impermissible and coercive are the questions asked
by Mrs. Kong and Kevin as to whether and why the employees
joined the Union and inquiries as to the Union’s benefits. TKC,
340 NLRB 923, 924 (2003); Assn. of Community Organizations
for Reform Now (ACORN), 338 NLRB 866, 870 (2003).
I accordingly find that the questioning set forth above vio-
lated the Act.
B. The Creation of the Impression of Surveillance
It is unlawful under Section 8(a)(1) of the Act for an em-
ployer to create an impression that it is watching or monitoring
its employees’ protected union activity, or in other words, to
create the impression of surveillance. The underlying premise is
that employees should be free to participate in union activity
without fearing that members of management are peering over
their shoulders, noting who is involved in union activities and
to what extent or how.
The test for determining whether an employer has created an
impression of surveillance is whether employees would rea-
sonably assume from the statement in question that their union
activities had been placed under surveillance. Tres Estrellas de
Oro, 329 NLRB 50, 51 (1999); St. Thomas Gas, 336 NLRB
711, 719–720 (2001).
The complaint alleges that Mrs. Kong gave the employees
the impression that their membership and activities on behalf of
the Union were under surveillance. In support of this allegation,
Chu testified that Mrs. Kong told him that she wanted to find
out who forced employees to sign the letter of protest. I cannot
find that by this statement Mrs. Kong created an impression of
surveillance. Her comment did not imply that she would keep
employees’ conduct under surveillance, particularly about such
an event as the signing of the protest letter that had already
occurred. I accordingly will dismiss this allegation of the com-
plaint. Even assuming that Mrs. Kong’s statement constituted
another instance of interrogation, a remedy for such a violation
would be cumulative of the remedy to be awarded for other
instances of interrogation.
C. Threats to Employees
The complaint alleges that the Respondent threatened its
employees with more arduous and less desirable duties if the
Union succeeded in its campaign to represent them.
As set forth above, in early August, Mrs. Kong asked Wu
whether she joined the Union and also asked for a description
of Union benefits. Mrs. Kong told her that she did not want her
employees to join the Union and told her that she wanted her to
assign her to work at the salad bar. Wu declined the assignment
and she was not transferred to that position. Mrs. Kong’s state-
ment that she wanted to assign Wu to the salad bar is alleged as
an unlawful threat. Mrs. Kong testified that she knew that Wu
did not want to work at the salad bar. Wu’s reasons were physi-
cal and emotional, as set forth above.
The evidence establishes that Mrs. Kong’s suggestion that
she would assign Wu to the salad bar was a threat to assign her
to duties that she knew Wu did not want. Although an employer
has a right to make such an assignment, here it is clear that the
assignment was suggested because of Wu’s positive response
that in China unions are helpful to the workers. Despite the fact
that Wu denied joining the Union, it is clear that Mrs. Kong
sought to make the impression that she should not do so. This is
reinforced by Mrs. Kong’s statement that she did not want the
workers to join the Union.
Inasmuch as Mrs. Kong’s suggestion to Wu that she would
assign her to the salad bar came in the same conversation as her
unlawful questioning of Wu, it is clear that the proposal was an
implied threat that she would or could be assigned to the salad
bar if she joined the Union. Buckeye Electric Co., 339 NLRB
334 fn. 1 (2003).
The complaint further alleges that the Respondent threatened
employees that it would close the restaurant if they joined the
Union. As set forth above, employees credibly testified that
Mrs. Kong and possibly Mr. Kong, who did not testify, threat-
ened to close the business, Mrs. Kong saying that in the context
of telling her workers that she did not want her employees to
join a union. This threat to close interferes with workers’ Sec-
tion 7 rights. Gissell Packing Co., 395 U.S. 575, 618–619
(1969). Although Mrs. Kong stated that she threatened to close
the restaurant if she had to reinstate Lee, in view of the fact that
I find Lee’s discharge violative of the Act, such a statement, by
itself, that the Respondent would rather close than reinstate an
unlawfully discharged employee, violates the Act. But, as
quoted by Wu, Mrs. Kong said that if she reinstated Lee he
would only cause “more troubles,” an apparent reference to his
union activities, and she would close the restaurant rather than
reemploy him. Clearly, this reference to Lee’s causing “trou-
bles” if he was reinstated and her desire to avoid such troubles
by simply closing, too, by itself, violates the Act.
Related to the threat to close the restaurant, the complaint al-
leges that the Respondent informed its employees that it would
be futile for them to join the Union because the employees
would not benefit from it. In support of this allegation, Liu gave
credited testimony that Mrs. Kong told him that she disagreed
with the employees’ plan to “organize a union,” and that Mr.
Kong said that their full income would be reported, Wang
stated that Mrs. Kong told them that new rules would be insti-
tuted, and, as set forth above, in the event of unionization, the
restaurant would just close. In these circumstances, the Re-
spondent’s statements that a union would not be organized
“were clearly intended to and had the effect of conveying to the
employees the futility of their support of the Union in violation
of Section 8(a)(1) of the Act.” Wellstream Corp., 313 NLRB
698, 706 (1994).
The complaint alleges that the Respondent threatened em-
ployees that if they joined the Union, it would have to examine
the documentation of all employees who do not possess immi-
gration documents and also alleges that if the Union was suc-
cessful in its campaign to organize them it would have to obtain
certain employment documents from them.
Mrs. Kong admitted telling Wang on two separate occasions
that she would have to provide immigration documentation.
Wang said she asked for a social security card, which could be
“fake.” Mrs. Kong warned her that the Union would not be
EAST BUFFET & RESTAURANT, INC. 995
good for her because she is undocumented and Mrs. Kong
would have to proceed “according to the rules.” There was also
uncontradicted testimony that Mr. Kong also told the employ-
ees that if they joined the Union he would have to secure immi-
gration documentation from them, and those not possessing
such papers would be fired.
The fact that Mrs. Kong conceded that she began asking for
such documentation in August supports a finding that she did
so because of the Union’s advent. She stated that she began
receiving advice to document her employees’ immigration
status five months before, in March, but did not begin doing so
until August. This serves to support the employees’ testimony
that she began asking for immigration documentation because
the employees were seeking union representation. The Respon-
dent violated the Act by threatening that immigration docu-
ments would be required if the employees sought union repre-
sentation. Regal Recycling, Inc., 329 NLRB 355, 371 (1999).
The complaint further alleges that the Respondent threatened
employees with discharge if they did not cease their work stop-
page in support of Lee. As set forth above, Liu and Lee testified
that Kevin Kong said that if they did not return to work imme-
diately they would be fired. However, Lee also testified, consis-
tently with Kevin Kong, that Kong told them that if they did not
return to work he would treat them as having quit. I credit Kong
in this regard. Lee clearly testified that when Kong said that
they will be treated as if they quit, they replied that “we are not
refusing to work.” That response surely indicates that it was an
answer to Kong’s statement that they were quitting by refusing
to work. Inasmuch as Lee was present at this time and heard a
different version of Kong’s statement than Liu I cannot find
credible his initial testimony that Kevin Kong threatened to fire
the workers if they did not return to work. I accordingly find
that the General Counsel has not proven that a threat was made
in this alleged statement of Kevin Kong.
I will accordingly dismiss the allegation of the complaint that
alleges that employees were threatened with discharge if they
did not return to work in protest of Lee’s discharge.
V. THE VIOLATIONS OF SECTION 8(A)(3) OF THE ACT
A. The Discharge of David Lee
The complaint alleges that the Respondent discharged Lee
on July 31 in violation of Section 8(a)(3) of the Act because he
and his co-workers joined and assisted the Union.
To satisfy her threshold burden of proof under the Board’s
decision in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
General Counsel must establish that the Respondent was aware
of Lee’s union activities, and that his union activity was a sub-
stantial or motivating factor in the Respondent’s decision to
discharge him. Manno Electric, 321 NLRB 278, 281 (1996). If
the General Counsel makes the required initial showing, the
burden then shifts to the employer to prove, as an affirmative
defense, that it would have taken the same action even in the
absence of Lee’s union activity.
It is not alleged that Lee was fired because he engaged in
protected, concerted activities although there was ample evi-
dence that he had engaged in such activities and was fired for
that reason. Chinese American Planning Council, Inc., 317
NLRB 202, 207 (1995). Indeed, the General Counsel expressly
stated that by adducing such evidence she did not seek a finding
that he was discharged for engaging in protected, concerted
activities. Rather, she stated that such evidence was presented
as “background” and “history” to demonstrate that the Respon-
dent did not like the fact that he was “outspoken,” he was con-
sidered as a “troublemaker” and that the Respondent bore ani-
mus toward him for engaging in such activities which “led . . .
to his discharge.”
The Board has held that an employer’s statements which
cannot form the basis of a finding of an unfair labor practice
“may be used as background evidence throwing light on the
Respondent’s motivation for conduct within the 10(b) period.”
Oklahoma Fixture Co., 314 NLRB 958, 959 fn. 3 (1994). Such
conduct may also be used to show antiunion animus. Gencorp.,
294 NLRB 717, 717 fn. 1 (1989). Here, the Respondent’s
statements were a reaction to Lee’s protected concerted activi-
ties and are being considered as evidence of its motivation for
firing him and as evidence of its antiunion animus which led to
his unlawful discharge for engaging in union activities.
As set forth above, Lee disregarded the Respondent’s in-
structions to stay out of the restaurant during the visit of the
DOL agents. After the agents left, the Kongs berated him for
answering the agents truthfully concerning his method of re-
muneration and captain James made an accusation that Lee was
“playing games” with the Respondent. Lee’s distribution of the
agents’ business cards to James and other employees at a time
when the Kongs were in a position to see him clearly had a role
in his later being called a “troublemaker” by Mrs. Kong.
It is important to note that the following incidents occurred
in a relatively short period of time in early July and mid-July
shortly before the Kongs returned from their vacation. They
were away from the restaurant for nearly six weeks and within
that time period Lee visited the Union. Thereafter, statements
of Mrs. Kong and captain Evelyn demonstrated that the Re-
spondent bore animus toward him for his union activities. Thus,
his involvement with the Union, the negative comments made
toward him by the Respondent and his discharge occurred in a
short, less than three-week period after the Kongs returned
from their vacation. It is obvious that during this compressed
period of time the Respondent believed, by virtue of their
statements about him, that his involvement with the Union
should be halted by his discharge.
In July, Lee discussed with Liu his belief that the wait staff
was not being paid properly and that they should attempt to be
obtain back pay. Liu credibly testified that captain Evelyn
overheard them and asked if they were trying to “overthrow”
the restaurant to which Lee answered “yes.” Evelyn then told
Liu that Mrs. Kong would make a decision as to whether Lee
should be terminated when she returned from China.
Two weeks before Lee’s discharge, Liu informed captain
James that he and Lee met with the Union, and that their pay
was not proper. According to Kevin Kong, captains are ex-
pected to inform the Kongs if anything out of the ordinary oc-
curs. Clearly, employees telling the captain that they met with
the Union and were informed that their pay was improper were
matters that the captains would be expected to tell the Kongs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD996
It is clear that inasmuch as the Kongs expected the captains
to keep them informed of matters which were “out of the ordi-
nary” or if “anything happens,” it may be inferred that James
would have brought to their attention the fact that Liu said that
he had visited the Union with Lee and that their pay practices
were being challenged. It may also be inferred that Evelyn in-
formed Mrs. Kong of Lee’s attempt to obtain his proper pay. As
the Respondent’s agents and conduits of information between
the employees and management, it may be inferred that the
captains informed the Respondent of these matters.
On July 19, Lee acted as spokesman for a group of workers
in complaining about the food they were given for meals and
asking that the wait staff and busgirls be permitted to take food
from the buffet for their dinner. During his presentation to Mrs.
Kong captain Evelyn gestured toward Lee and mentioned that
he was a “troublemaker.” After that meeting busgirl Wu was
asked by Mrs. Kong why Lee continued to stir up so much
trouble in the restaurant, and complaining that the food was not
good, noting that it would not be easy for him to get a job else-
where. On July 31, Lee was discharged allegedly for failing to
attend to a child who dropped a plate.
Based on the above, I find that Lee engaged in union activi-
ties, those activities became known to the Respondent, and that
the Respondent bore animus toward him because of those ac-
tivities. I also rely on the Respondent’s statements, set forth
above, that the Respondent’s captain believed that Lee sought
to obtain his proper pay, and told his co-worker that Mrs. Kong
would decide whether to fire Lee. It is clear that the Kongs
regarded Lee as someone who made much trouble for them and
implied that he would be fired by telling his co-worker that it
would not be easy for him to find work outside the Respondent.
Those statements shed a piercing light on the Respondent’s
motivation for his discharge and are clearly evidence of anti-
union animus.
Statements of an employer made after the discharge are rele-
vant to the issue of the Respondent’s animus. K. W. Electric,
Inc., 342 NLRB 1231 fn. 5. (2004). Thus, Mrs. Kong told Wu
that Lee would not be reinstated because he told Kevin that his
“brotherhood” wanted him to return to work. This clearly im-
plies that she resented the fact that he joined together with his
co-workers to join a union. The Respondent’s antiunion animus
is also amply demonstrated in the findings, made above, in
which, shortly after his discharge the Respondent’s officials
interrogated employees as to whether they joined the Union and
their reasons for doing so, interrogated them concerning what
benefits they expected from the Union, threatened Wu with a
transfer to a position that the Respondent knew she did not
want, threatened employees that if they joined the Union the
Respondent would have to examine their immigration docu-
mentation, threatened to close the restaurant if they sought
union representation and harassed them in the performance of
their duties, as set forth above. Although these violations oc-
curred after Lee was discharged, they are relevant to the issue
of the Respondent’s animus. K.W. Electric, Inc., above. The
Respondent’s actions occurred within one week of Lee’s dis-
charge and exhibited its strong antiunion sentiment which lend
support to a finding that his discharge was unlawful.
I accordingly find that the Respondent was motivated by
Lee’s union activities in discharging him. Wright Line, above.
Having made this finding, the burden of proof then shifts to the
Respondent to prove that it would have discharged Lee even in
the absence of his union activities.
There is no dispute that Lee was present within hearing dis-
tance when the plate dropped. He was discharged allegedly for
not protecting the child patron who dropped the plate and who
allegedly attempted to pick it up.
The testimony of Lee and the other witnesses on behalf of
the General Counsel are credited. It was their testimony that
Mrs. Kong only asked Lee why he did not clean the plate. His
credited response was that someone was already cleaning it
when he was approached by Mrs. Kong. His answer to Mrs.
Kong is supported by Zhang who stated that she immediately
went to the area and cleaned the plate, and by Mrs. Kong who
said that when she approached Lee someone was already clean-
ing the area. Accordingly, Lee’s testimony as to this incident is
more believable than Mrs. Kong’s. Further, the credited testi-
mony of employee witnesses was that the child dropped the
plate and then left the area immediately. The testimony of Mrs.
Kong and Ms. Chiu that the girl attempted to pick up the plate
cannot be credited. First, It took a period of time for Mrs. Kong
to arrive at the scene—when she heard the plate drop she stood
up, looked toward the area, then sat down and then some sec-
onds later walked to the area. Employee Liu credibly testified
that after the plate dropped he saw the girl walk quickly from
the area. Clearly, she was no longer in the area by the time Mrs.
Kong got there. Accordingly, there was no need to warn her not
to touch the plate.
Although none of the employees who testified stated that
they heard Mrs. Kong tell Lee that he should have helped the
girl, their letter of protest presented on August 2 stated that
Mrs. Kong gave as a reason for his discharge that he “did not
attend to the girl who dropped the plate.” Such accusation made
by Mrs. Kong thus did not occur at the time of the incident but
only later, during the meeting with employees. However, inas-
much as I find that the girl left the area immediately and there
was no credible evidence that she attempted to pick up the
plate, Mrs. Kong’s assertion that Lee’s inaction put her at risk
is not credited.
The evidence supports a finding that Mrs. Kong sought an
opportunity to rid the Respondent of Lee who she regarded as a
troublemaker and whose activity in behalf of the Union came to
her knowledge. She seized upon the plate incident and seeing
that a child was involved in a potentially dangerous situation
decided to fire Lee because of his proximity to the incident.
Inasmuch as Mrs. Kong did not expect Lee to pick up the
plate or clean the area, his refusal to do so should not have
resulted in his discharge. But that was what he was accused of
at the time of his discharge, and that was what he was fired for.
Accordingly, Mrs. Kong, by her own testimony would not have
discharged him for not picking up the plate. Therefore, the
Respondent has not met its burden of proving that it would
have discharge Lee for that conduct. Wright Line, above.
The evidence also establishes that other employees were pre-
sent in the area to the same extent as Lee when the plate
dropped. Thus, busgirl Zhang who immediately arrived to clean
EAST BUFFET & RESTAURANT, INC. 997
up the plate and Liu were there. Nevertheless, Mrs. Kong ze-
roed in on Lee for criticism and discharge for not attending to
the broken plate. I recognize that Mrs. Kong testified that she
only saw Lee at that time, but especially considering that the
plate was immediately picked up and the area cleaned by
Zhang, her reaction in firing Lee was clearly exaggerated which
leads to the conclusion that the discharge was effected for
unlawful reasons.
Mrs. Kong’s testimony concerning the numerous complaints
she and her son made to Lee do not withstand scrutiny. None of
them, other than the two written warnings, were documented.
Further, notwithstanding the number of complaints against him,
no discipline was taken against him. This stands in contrast to
Mrs. Kong’s testimony that she discharged others for similar
complaints, such as being impolite to customers, laziness and
failing to cooperate. As to the two written complaints, both
were made following Lee’s protected concerted activity of
meeting with the DOL agent and distributing her business
cards. Lee received no written warnings, and no written record
of those alleged warnings was made.
I accordingly find and conclude that the Respondent has not
met its burden of proving that it would have discharged Lee
even in the absence of his union activities. Wright Line, above.
B. The Alleged Harassment of Employees and Changes in their
Conditions of Employment
The complaint alleges that since August 5, the Respondent
harassed its employees and engaged in certain conduct because
they protested Lee’s discharge, because of their Union mem-
bership and activities and because they engaged in other pro-
tected concerted conduct.
The evidence fully supports a finding that the Respondent’s
wait staff including the bus persons engaged in Union and pro-
tected, concerted activities by openly and vocally protesting the
Respondent’s policy of not permitting them to take food from
the buffet, by protesting Lee’s discharge, attending Union
meetings, and by signing the letter protesting Lee’s discharge
which included complaints about working conditions. Section 7
of the Act provides that employees have the “right to engage in
concerted activities for the purpose of collective-bargaining or
other mutual aid or protection.” NLRB v. Washington Alumi-
num Co., 370 U.S. 9, 14 (1962), where the Court stated that the
“policy of the Act [is] to protect the right of workers to act
together to better their working conditions.” The Respondent
was aware of such activity.
The evidence also supports a finding that following their Un-
ion and protected activities, the Respondent instituted new rules
or more closely enforced existing rules, began a campaign of
increasing its scrutiny of its employees, more closely super-
vised them, and criticized them as set forth below.
The evidence supports a finding that the Respondent was
motivated in taking certain of the actions below as to which I
find violations because of the employees’ union and protected,
concerted activities in complaining about their conditions of
work and protesting Lee’s discharge, all of which the Respon-
dent was aware of. Wright Line, above. The Respondent’s de-
fenses will be discussed below.
1. Closer supervision, complaints, and harsh criticism over the
manner in which they performed their duties
As set forth above, Liu was criticized for his manner of
dressing and walking with his hands behind his back. It is sig-
nificant and supportive of the General Counsel’s case that Liu
credibly testified that such criticism was made for the first time
immediately after August 5, when he and others were told by
Mrs. Kong that she did not agree with their decision to join a
Union, the Respondent would close the restaurant, and that new
rules would be instituted. On the other hand, I cannot credit the
testimony of Mrs. Kong and her son that such criticisms took
place routinely prior to the Union’s advent.
Although the Respondent’s rules which were in effect in Au-
gust may be broadly interpreted to prohibit this type of conduct,
the timing of the criticism coming shortly after the employees,
with Liu as their outspoken leader were threatened and interro-
gated by Mrs. Kong for their Union and protected concerted
activities, supports a finding that the criticism was made be-
cause of such activities. Classic Sofa, Inc., 346 NLRB 219, 236
(2006). I accordingly find that the Respondent has not met its
burden of proving that it would have engaged in this conduct in
the absence of the employees’ union and protected, concerted
activities.
2. Assigned additional and less desirable duties which they
had never performed before
In support of this allegation of the complaint, the General
Counsel asserts that the Respondent’s instruction to the busgirls
to clean areas and perform certain duties that were normally
performed by the busboys and the cleaning employee was
unlawful.
Specifically, the General Counsel refers to the testimony of
busgirl Wang that on August 6, Kevin Kong asked her to clean
a small piece of dirt on the floor which she did. Although I find
that Kong asked Wang to do so, I cannot find that his instruc-
tion violated the Act. Another busgirl, Wu, stated that picking
up small food items was part of her job, but that large spills and
large items were not. The testimony is clear that busgirls were
responsible to keep the buffet area clean which includes the
floor in the immediate area.
I accordingly cannot find that the General Counsel has
proven a violation in Kevin Kong’s request that Wang pick up a
small piece of dirt.
3. Reassignment of more desirable work from the wait
staff to bus persons
The complaint alleges that more desirable side work was
taken from the wait staff and given to the bus persons. As set
forth above, Yu Chuan Chu testified that after the August 5
meeting, the wait staff was no longer assigned to do “side
work” such as cleaning vegetables. Instead, the busboys were
given that task and the wait staff had to continue to serve cus-
tomers during their lunch break. Chu testified that he did not
complain about doing side work and did not tell Mrs. Kong that
he did not want to perform such work. In fact he called such
work a “break” from his normal duties and said that Mrs. Kong
“stopped” them from having such a break by assigning such
work to the buspersons. However, Chu also inconsistently
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD998
stated that he complained about doing such work because he
believed that, as a waiter, he should not have to do such work.
Mrs. Kong stated that in response to the waiters’ complaints she
reassigned the work to the bus persons.
Inasmuch as Chu’s testimony is not clear as to whether he
considered the performance of side work to be onerous or a
welcome break, or whether he complained to Mrs. Kong about
doing such work or not, I cannot find that the General Counsel
has proven that the reassignment of such work from the wait
staff to the bus persons was a violation of the Act.
4. Directing employees not to speak to, or eat with other
employees or to accept cell phone calls while on duty
The complaint alleges that on about August 4, Mrs. Kong di-
rected employees not to speak to, or eat with other employees,
or to accept cell phone calls while on duty.
As set forth above, the Respondent’s written rule adopted in
September, 2005, prohibited employees from congregating and
speaking to each other “in small groups such as three to five
people.” Accordingly, Liu’s speaking to co-worker Ma while
on duty which was criticized by Mrs. Kong did not violate that
rule. There was no showing that a written rule was in force
prior to that time or that the Respondent had a more strict rule
prior to September, 2005.
However, a written rule which predated the unionization ef-
fort was that workers should stay at their work posts. Mrs.
Kong interpreted this as meaning that the workers must remain
in their assigned section and could not go to another section and
speak with workers there. However, inasmuch as the wait staff
worked in groups of two to four waiters and busboys it is clear
that that number of employees would be in the same work area
and therefore would not be leaving their work post to speak to
their co-workers.
As set forth above, according to the credited testimony of
busgirl Wang, Mrs. Kong directed her and two others not to
stand together or to talk to each other. This was the first in-
stance where they were criticized for such conduct and in fact,
in the past Mrs. Kong would join their conversation. Also, bus-
girl Wu stated that prior to August 2 she was permitted to speak
with her co-workers during work hours. Further, Wu credibly
testified that Mrs. Kong told them on August 4 that they could
not sit or stand in groups or have their meals together.27 In ac-
knowledging that after the petition was filed employees con-
gregated more frequently, Mrs. Kong implies that she took no
action prior to its filing to correct this perceived violation of the
Respondent’s rules, but that only after the petition she regarded
their meeting in groups as impermissible. Mrs. Kong’s defense
to this change was that by congregating in groups the employ-
ees were not at their assigned sections and therefore could not
serve customers in those sections. She stated that she warned
them about such conduct before and after the petition was filed.
Mrs. Kong also told the busgirls that they had to eat in two
groups, and not one. This new rule could only serve the purpose
of thwarting employee communication and further organization
efforts. Inasmuch as they were permitted to eat together prior to

27 In this respect, I acknowledge that the charge alleging that a
change in their meal time violated the Act was dismissed by the Re-
gional Director.
the filing of the petition in early August, the Respondent has
presented no reason why they could not have continued to do so
after the petition was filed. See Diamond Electric Mfg. Corp.,
346 NLRB 857, 894 (2006).
The complaint alleges that the Respondent prohibited its em-
ployees from accepting cell phone calls while on duty. Mrs.
Kong testified that the Respondent prohibited the use of per-
sonal cell phones for personal calls during work time and while
customers were present because she considered it to be unpro-
fessional. However, such phones could be used in an emer-
gency during work time if necessary. The Respondent’s written
rule adopted in September, 2005 states that no one is permitted
to “frequently” make cell phone calls during work hours. If
anything, this rule makes the point that cell phone calls were
permitted prior to September, 2005 and thereafter regardless of
the presence of customers, and that only “frequent” calls were
impermissible. In view of the fact that there was no written rule
in effect prior to September, 2005 to support the Respondent’s
testimony that it had a stricter rule prior to September, 2005,
the testimony of the Respondent’s witnesses is not credited.
Employees Chu and Liu testified that after the petition was
filed in early August, Mrs. Kong criticized each of them for
making a cell phone call while on duty. Mrs. Kong conceded
that she criticized Liu in that manner after the petition was
filed. Liu stated that other workers made such calls during work
time. There was testimony that Mrs. Kong permitted the
kitchen workers to make cell phone calls only as they related to
their work but of course no one could monitor such calls to
determine who they were actually speaking to. Chu credibly
testified that prior to the filing of the petition he had been per-
mitted to make cell phone calls while on duty.
Although Mrs. Kong and her son testified that they fre-
quently warned employees not to make cell phone calls while
on duty, such warnings were not reduced to writing and are
therefore not reliable.
In view of the fact that, according to the credited testimony
of Chu and Liu, cell phone calls were permitted during work
time until the petition was filed, I find that the sudden prohibi-
tion of such use was prompted by the employees’ interest in
organization. I accordingly find that the Respondent has not
met its burden of proving that it would have taken the actions
above even in the absence of the employees’ protected, con-
certed activity. Wright Line, above.
C. The Written Warning to Chu
As set forth above, in August, 2005, Chu received a written
warning for not ensuring that his customer paid his bill before
leaving the restaurant. Chu admits that the customer did not pay
but his defense is that captain Evelyn was aware that he did not
pay and even looked for him before he left. Indeed, according
to Chu’s uncontradicted testimony, Evelyn asked the customer
if he paid and was told that he did. Evelyn did not testify. Kevin
Kong denied that Chu told him about Evelyn’s involvement in
the matter.
It appears that the Respondent imposed some form of disci-
pline on waiters whose customers did not pay their bill even
before the Union’s advent. First, it asked that the waiters pay
the bill themselves, and then it adopted a uniform rule begin-
EAST BUFFET & RESTAURANT, INC. 999
ning in March, 2005 whereby it issued warning notices to em-
ployees whose customers did not pay. The record supports a
finding that warnings were issued to employees when their
customers left the restaurant without paying.
The General Counsel cites one alleged instance in which the
nonpayment of a bill was excused. Liu testified that in early
March, 2005, he was told by James that James’ customer left
without paying and that Kevin Kong did not issue a warning
notice to James. Left unexplained was why James, a captain,
acted as a waiter on that occasion and also why Kong would
not be permitted to excuse his agent from such wrongdoing.
Accordingly such alleged evidence of one isolated incident
does not support a finding that Chu was subject to disparate
treatment.
In finding that Chu’s warning did not constitute a violation
of the Act, I have taken into consideration that Chu was the first
to approach the Union, was outspoken about Lee’s termination,
delivered the Union’s petition to management and was believed
by Kong to be the person who began the unionization effort.
Accordingly, even assuming that the General Counsel was able
to prove that the warning was motivated by Chu’s Union and
protected concerted activity, I find that the Respondent has
proven that it would have issued the warning even in the ab-
sence of such activity. Wright Line. I will recommend that this
allegation be dismissed.
D. The Strike
1. The nature of the strike
“It is well settled that if a strike is caused in part by an em-
ployer’s unfair labor practice, the strike is an unfair labor prac-
tice strike. An unfair labor practice strike occurs even when the
employer’s unfair labor practice is not the sole or major cause
or aggravating factor; it need only be a contributing factor.”
RCG (USA) Mineral Sands, Inc., 332 NLRB 1633, 1633
(2001).
The unfair labor practices found above all took place in a
relatively short period of time, from July 31 when Lee was
discharged through about August 8. Accordingly, in such a
compressed period of time the employees were subject to in-
tense employer interference with their Section 7 rights and
discrimination because they exercised those rights. I find that
their decision to strike on August 20 was a direct result of the
Respondent’s unfair labor practices and their strike was an
unfair labor practice strike from its inception.
This finding is supported by the flyers distributed by the Un-
ion during the strike. They noted that the employees were strik-
ing in protest against the unfair labor practices committed by
the Respondent and specified those violations found here: the
discharge of Lee, harassment and retaliation against workers
who support the Union, illegal house rules and regulations, and
interrogation and threats. Precision Concrete, 337 NLRB 211,
212 (2001), where unfair labor practice strike language was
contained in picket signs displayed during the strike. In addi-
tion, Chu testified that the strike was, in part, to protest Lee’s
discharge.
Liu’s testimony that part of the main reason for the strike
was Mrs. Kong’s announcement, the day before the strike, of
changes in working conditions which were not found to be
unfair labor practices does not detract from this finding. First,
Liu stated that such changes were the “main” reason, not the
sole reason for the strike. Second, he added that her additional
comment made at that time, that Wang would be required to
present a social security card to continue working and Mr.
Kong’s statement that because of all the trouble the employees
were causing he may close the restaurant, were further reasons
for the strike. I have found that such threats were unfair labor
practices. As such they clearly show that the employees de-
cided to strike in protest of the Respondent’s unfair labor prac-
tices. In addition, at the employee meeting on August 17, three
days before the strike, the workers spoke about the Respon-
dent’s unfair labor practices such as its requests for immigra-
tion documentation, the threat to close the restaurant if they
“create more trouble” and Lee’s discharge. Those matters
surely were part of the reason for the strike three days later.
2. The offer to return and the failure to reinstate
On April 24, 2006, the Union made an unconditional offer to
return on behalf of ten employees including Lee. Nearly four
months later, on August 22, the Respondent offered reinstate-
ment to eight of those strikers.
“Under well-established Board law, an employer is required
to reinstate unfair labor practice strikers upon their uncondi-
tional offer to return to work.” Boydston Electric, 331 NLRB
1450, 1453 (2000). Inasmuch as the strikers were not reinstated
upon the offer to return made in their behalf, the Respondent
violated Section 8(a)(3) of the Act. Boydston, above.28
In reinstating the unfair labor practice strikers, the Respon-
dent has a duty to discharge, if necessary, strike replacements
hired during the strike. Mastro Plastics Corp. v. NLRB, 350
U.S. 270, 278–279 (1956).
I will leave to the compliance phase of this matter the ques-
tions raised and the evidence presented concerning the offers of
reinstatement to strikers who may have been undocumented
workers.
CONCLUSIONS OF LAW
1. By interrogating employees as to who wrote a letter of
protest, if they signed it, whether anyone forced them to sign,
and why they signed it, the Respondent violated Section 8(a)(1)
of the Act.
2. By threatening employees with transfers to different as-
signments which it knew were not acceptable to employees,
with closure of the restaurant if they joined the Union, by
threatening that it would examine the immigration documenta-
tion of its employees if they joined the Union, and by telling
them that it would be futile to join the Union, the Respondent
violated Section 8(a)(1) of the Act.
3. By criticizing its employees because of their protected,
concerted activities, directing its employees not to speak to co-
workers while on duty, telling its employees that they had to eat
in two groups and not together, and prohibiting its employees

28 In view of this finding, it is unnecessary to discuss the evidence
relating to the complaint’s alternative allegation that the strike was an
economic strike, and the issues concerning the replacement of such
strikers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1000
from making or receiving cell phone calls during while on duty,
the Respondent violated Section 8(a)(3) of the Act.
4. By discharging David Lee because of his activities in be-
half of the Union, the Respondent violated Section 8(a)(3) of
the Act.
5. By failing to reinstate unfair labor practice strikers upon
the unconditional offer to return made in their behalf the Re-
spondent violated Section 8(a)(3) 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 to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, and having unlawfully refused to reinstate unfair labor
practice strikers upon the unconditional offer to return made in
their behalf, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed on
a quarterly basis from April 24, 2006, the date of their uncondi-
tional offer to return to the date of a proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). In reinstating the unfair labor practice strikers, the Re-
spondent has a duty to discharge, if necessary, strike replace-
ments hired during the strike.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.29
ORDER
The Respondent, East Buffet and Restaurant, Inc., Hunting-
ton Station, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating employees as to who wrote a letter of pro-
test, if they signed it, whether anyone forced them to sign, and
why they signed it.
(b) Threatening employees with transfers to different as-
signments which it knew were not acceptable to employees,
with closure of the restaurant if they joined the Union, by
threatening that it would examine the immigration documenta-
tion of its employees if they joined the Union, and by telling its
employees that it would be futile to join the Union.
(c) Criticizing its employees because of their protected, con-
certed activities, directing its employees not to speak to co-
workers while on duty, telling its employees that they had to eat
in two groups and not together, and prohibiting its employees
from making or receiving cell phone calls during while on duty.
(d) Discharging or otherwise discriminating against any em-
ployee for supporting 318 Restaurant Workers’ Union or any
other union.

29 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.
(e) Failing and refusing to reinstate unfair labor practice
strikers upon the unconditional offer to return made in their
behalf.
(f) 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
David Lee full reinstatement to his former job or, if that 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 David Lee whole for any loss of earnings and other
benefits 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, and
within 3 days thereafter notify David Lee in writing that this
has been done and that the discharge will not be used against
him in any way.
(d) Within 14 days from the date of the Board’s Order, offer
full reinstatement to the following unfair labor practice strikers
to their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed, displacing
if necessary, any replacements hired since April 24, 2006:
Hui Ma Yu Zhen Wang
Yu Chuan Chu Mei Ying Zou
Bi Chen Ping Zhang
Li Feng Liu Ping Yuan Wu
Xiu Zhu Lin
(e) Make the above-named employees’ whole for any loss of
earnings and other benefits suffered as a result of the Respon-
dent’s refusal to reinstate them, from the date of their offer to
return to work, April 24, 2006.
(f) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge of
Lee and the refusal to reinstate the above nine employees, and
within 3 days thereafter notify the employees in writing that
this has been done and that the unlawful discrimination will not
be used against them in any way.
(g) 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.
(h) Within 14 days after service by the Region, post at its fa-
cility in Huntington Station, New York, copies of the attached
notice marked “Appendix.”30 Inasmuch as the employee wit-

30 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-
EAST BUFFET & RESTAURANT, INC. 1001
nesses testified through a Chinese interpreter, it is directed that
the notice be written in Chinese and English. Copies of the
notice, on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized represen-
tative, 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. 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

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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
any time since July 31, 2005.
(i) 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.
(j) IT IS FURTHER ORDERED that the complaint is dismissed in-
sofar as it alleges violations of the Act not specifically found.