East Village Grand Sichuan Inc. d/b/a Grand Sichuan Restaurant

National Labor Relations Board - Board Decisions

Nov 30, 2016

364 NLRB No. 151 (N.L.R.B. 2016)

364 NLRB No. 151
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
East Village Grand Sichuan Inc. d/b/a Grand Sichuan
Restaurant and Chinese Staff & Workers Asso-
ciation. Case 02–CA–143468
November 30, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On January 14, 2016, Administrative Law Judge Ste-
ven Davis issued the attached decision. The Respondent
filed exceptions with supporting argument, and the Gen-
eral Counsel filed an answering brief. The General
Counsel filed limited cross-exceptions and a supporting
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions,2 to amend the remedy, and to

1 The Respondent implicitly excepts to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
2 We affirm the judge’s finding that the Respondent violated Sec.
8(a)(1) of the Act by discharging employee Fang Xiao. In doing so, we
reject the Respondent’s argument that Xiao did not engage in concerted
activity within the meaning of Sec. 7 of the Act. There is ample evi-
dence that, starting in 2012, Xiao engaged in numerous concerted dis-
cussions with her coworkers concerning the Respondent’s terms and
conditions of employment. Because Xiao’s November 2014 Federal
lawsuit alleging violations of Federal and State labor laws logically
grew out of these discussions, we find that it constituted concerted
activity. See, e.g., Salisbury Hotel, 283 NLRB 685, 687 (1987); Mike
Yurosek & Son, Inc., 306 NLRB 1037, 1038–1039 (1992), after remand
310 NLRB 831 (1993), enfd. 53 F.3d 261 (9th Cir. 1995). Member
Miscimarra does not reach or pass on the finding that the lawsuit itself
constituted concerted activity. In finding that Xiao engaged in concert-
ed activity, we do not rely on U Ocean Palace Pavilion, Inc., 345
NLRB 1162 (2005), a decision cited by the judge, which involved
expressly joint activity. Finally, in finding animus in this case, we
would find it unnecessary to rely on Sister Gao’s statement that she
would “fight to the end,” which as the judge acknowledges falls within
Sec. 8(c) of the Act, given the other strong evidence of animus in this
case. Like the judge, Chairman Pearce would rely on Sister Gao’s
statement that the Fuzhounese employees are united, want to sue the
restaurant, and Gao would “fight to the end” as evidence of animus.
In addition, we do not rely on Teamsters Local 25, 358 NLRB 54
(2012), a decision cited by the judge. See NLRB v. Noel Canning, 134
S.Ct. 2550 (2014).
adopt the recommended Order as modified and set forth
in full below.3
ORDER
The National Labor Relations Board orders that the
Respondent, East Village Grand Sichuan Inc. d/b/a
Grand Sichuan Restaurant, New York, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees for engaging in protected concerted activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Fang Xiao full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any other rights
or privileges previously enjoyed.
(b) Make Fang Xiao whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(c) Compensate Fang Xiao for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director for Region 2 within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years.
(d) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful dis-
charge of Fang Xiao, and within 3 days thereafter notify

3 In accordance with our recent decision in King Soopers, Inc., 364
NLRB No. 93 (2016), we shall order the Respondent to compensate
Xiao for her search-for-work and interim employment expenses regard-
less of whether those expenses exceed interim earnings. Search-for-
work and interim employment expenses shall be calculated separately
from taxable net backpay, with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). For the reasons
stated in his separate opinion in King Soopers, 364 NLRB No. 93, slip
op. at 9–16, Member Miscimarra would adhere to the Board’s former
approach, treating search-for-work and interim employment expenses
as an offset against interim earnings.
In accordance with our decision in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall also modify the judge’s recom-
mended tax compensation and Social Security reporting remedy.
We shall modify the judge’s recommended Order to reflect these
remedial changes, to conform to the Board’s standard remedial lan-
guage, and in accordance with our decision in Excel Container, Inc.,
325 NLRB 17 (1997). We shall also substitute a new notice to conform
to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
her in writing that this has been done and that the dis-
charge will not be used against her in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in New York, New York, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. If the Respond-
ent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed
by the Respondent at any time since January 2, 2015.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. November 30, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra Member

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Fang Xiao full reinstatement to her former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
WE WILL make Fang Xiao whole for any loss of earn-
ings and other benefits resulting from her discharge, less
any net interim earnings, plus interest, plus reasonable
search-for-work and interim employment expenses.
WE WILL compensate Fang Xiao for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 2, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Fang Xiao, and WE WILL, within 3 days
thereafter, notify her in writing that this has been done
and that the discharge will not be used against her in any
way.
EAST VILLAGE GRAND SICHUAN INC. D/B/A GRAND SICHUAN RESTAURANT 3
EAST VILLAGE GRAND SICHUAN INC. D/B/A
GRAND SICHUAN RESTAURANT
The Board’s decision can be found at
www.nlrb.gov/case/02–CA–143468 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Joane Si Ian Wong, Esq., for the General Counsel.
Curt Donald Schmidt, Esq. (Law Office of Thomas D.
Gearon), of Flushing, New York, for the Respondent.
Margaret E. McIntyre, Esq., of New York, New York, for the
Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed by Chinese Staff & Workers Association (Union)
on December 23, 2014, a complaint was issued against East
Village Grand Sichuan Inc. d/b/a/ Grand Sichuan Restaurant
(Respondent) on August 31, 2015.
The complaint alleges that the Respondent discharged its
employee Fang Xiao because she engaged in protected concert-
ed activity by filing a civil action against the Respondent in
U.S. District Court which alleged violations of the Fair Labor
Standards Act and the New York Labor Law.1
The Respondent’s answer denied the material allegations of the
complaint and a hearing was held before me in New York, New
York, on November 9, 10, 12, and 30, 2015.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing

1 The complaint also alleged that the Respondent unlawfully dis-
charged employee Chang Hui Lin. However, on October 19, 2015, the
charge alleging his discharge was withdrawn and the complaint’s alle-
gations concerning his discharge were dismissed. Accordingly, Lin’s
discharge is not before me.
2 The General Counsel’s unopposed motion to correct the transcript
is granted and received in evidence as GC Exh. 22. During the hearing,
the Respondent made a motion to dismiss the complaint and for sum-
mary judgment. The motions are hereby denied.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation having its place of business at
19-23 St. Marks Place, New York, New York, is engaged in the
operation of a public restaurant serving and delivering food and
beverages to individual customers. The Respondent’s answer
denied that it was engaged in interstate commerce. However,
during the hearing, it agreed to a stipulation entered into in a
prior case involving these parties.3 That stipulation stated that
“annually, the Respondent purchases and receives at its New
York facility, products, goods, and materials valued in excess
of $5000 directly from points located outside New York State.”
In addition, the Respondent’s U.S. income tax return for the
period June 1, 2013, to May 31, 2014, stated that its gross sales
were $1,223,279. Thus, the Respondent meets the Board’s
standards for the assertion of jurisdiction, and I accordingly
find and conclude that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
I. THE FACTS
A. Xiao’s Discussions with her Coworkers
Fang Xiao began work for the Respondent in August 2008.
She worked as a “busboy” throughout her employment. Her
duties included preparing tea, clearing dirty dishes from the
tables, refilling customers’ water glasses and cleaning the bath-
room. Her coworkers included three waiters/waitresses and
three busboys. Tips received by the wait staff and the busboys
were combined at the end of each day. Busboys earned one-half
the amount of the tips that the waiters earned.
Xiao is a native of Fuzhou, China, whose residents speak
Fuzhounese, which is apparently spoken exclusively by those
residents. Her fellow employees who spoke Fuzhounese were
Xing Duan Jiang, Chang Hui Lin, and Xue Qin Tang.4
Xiao took coffeebreaks from work once or twice per week
with coworkers Ah Ying, Min Fu, Xing Duan Jiang, Chang Hui
Lin, and Xue Qin Tang. During those breaks, which took place
after lunch when they left the restaurant for coffee, they spoke
about their working conditions including the Respondent’s
failure to pay them the minimum wage and for overtime work,
their long work hours, and the requirement that they purchase
their work uniforms.
Their discussions culminated in a lawsuit filed against the
Respondent in U.S. District Court in November 2012, by
Xiao’s coworkers Xing Duan Jiang, Chang Hui Lin, and Xue
Qin Tang, and four others. It alleged that the employees were
not paid proper wages under the New York Labor Law or the
Fair Labor Standards Act. (FLSA).
Xiao did not join the lawsuit because she intended to travel
to China and because she began work at a friend’s restaurant.

3 East Village Grand Sichuan, Inc., d/b/a Grand Sichuan, JD(NY)–
81–3.
4 A “name chart,” GC Exh. 11, lists the English name, Chinese
name, and nickname for persons mentioned at the hearing. I have used
the English name of each person since that was the name the witnesses
used. Nicknames were also used at the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
She told the plaintiffs that she had no time to become involved
in the action. Xiao visited China from March 2012 to April
2012.
After her return from China, Xiao worked at a different res-
taurant and then left New York to work at her friend’s restau-
rant. She stopped work there in late 2012. In early 2013, Xiao
returned to New York. The Respondent’s admitted supervisory
manager, Tian Sheng Wang, called and asked her to return to
work at the Employer’s restaurant. She worked for the Re-
spondent from early 2013 through May 2014.
Xiao gave uncontradicted testimony that Manager Wang,
who did not testify, spoke to her about five times concerning
employees Xing Duan Jiang, Chang Hui Lin, and Xue Qin
Tang, her Fuzhounese coworkers who were the plaintiffs in the
2012 Federal lawsuit.
In their first conversation, Wang told her that the three were
not “personable people. They work at the restaurant at this time
but they are also suing the restaurant at the same time. . . . They
are part of the worker union; so no hanging out with them.”
Xiao replied that Wang should not bother them.
Xiao continued to take her breaks with the three employees
identified by Wang, and that practice continued until she was
discharged in May 2014.
Later, in March or April 2013, Wang told Xiao that the three
employees wanted to work at the restaurant but at the same
time were suing the company and attempting to receive some
benefits. Xiao responded by saying that they were “fighting” to
obtain the “minimum wage” which is “normal and fair.” Wang
angrily replied, “if you analyze this or be like this, the Boss will
not like it.” Xiao continued taking breaks with those workers.
In August 2013, Wang directed Xiao not to “hanging out
with them. If you continue hanging out with them, the Boss will
not like you.” Xiao asked him why she should not meet with
them because they are “doing what they are doing and I’m do-
ing my own thing. We just hanging out.” Wang angrily told her
“I don’t care, and if you continue like this, the Boss will not
like you and he’s kind of upset . . . don’t listen or don’t hang
out with them.”
In November 2013, Wang asked Xiao in an angry manner
“why you don’t listen to me? Why you keep hanging out with
them? You continue hanging out with them. Boss will not like
you.” Xiao replied that they were doing “our own thing. We
don’t bother each other. Why the boss don’t like us just going
out to have coffee?” Wang responded, “you don’t listen so I
don’t care about you. You just like to hang out with them.”
Their last conversation concerning her coworkers occurred in
February, 2014. Wang, speaking in an angry, very strong voice,
asked Xiao “why you going out with them, hanging out with
them? Why don’t you listen to me? The Boss don’t like you
going out with them.” Xiao replied that they were “suing the
restaurant for the minimum wage and I can do that. Why you
don’t like me going out with them?” Wang replied,“if you con-
tinue going out with them, the
Boss will not like you, and I’m not going to care about you
anymore.” Xiao replied that she would not care about him ei-
ther.
During the time that Wang warned Xiao not to associate with
her three coworkers, she nevertheless continued to meet with
the three Federal court plaintiffs during their breaks.
In about February or March 2014, Xiao spoke to coworker
and busboy Ah Ying about two or three times concerning the
need to receive a greater portion of the tips. At about that time,
Manager Wang was replaced by admitted statutory supervisor
Wen Yan Gao, called “Sister Gao.”
In late March or April, 2014, Xiao told Sister Gao that she
has been working at the restaurant a long time, and asked if she
would “increase the tips.” Gao told her that she had to speak
with Xiao Tu Zhang, known as “Boss Zhang.” A few days lat-
er, Gao told Xiao that Boss Zhang denied her request.
B. Xiao’s Workplace Injury
At the end of the shift on May 28, 2014, as was the practice,
all the tips received by the waiters and busboys were combined.
The waiters received a full share of the tips and the busboys a
half share. The money was then distributed to the workers. Yan
Hua Li, also known as Qi Qi, gave Xiao her money. Xiao im-
mediately protested that she did not receive the correct amount
of her share. Qi Qi slapped the table, saying that she would not
pay her more than she had. Xiao said that Qi Qi “cannot do that
to me.” Qi Qi said she was and that she did not care.
Qi Qi told Sister Gao that Xiao should not receive more
money than she received because she was lazy. Sister Gao told
her that Xiao helped her and she should be paid what she was
entitled to. Qi Qi then spat at Xiao who spat at her in return. Qi
Qi then grabbed Xiao’s hair and punched her head. Xiao fell to
the floor. Xiao’s husband came and called the police.
Xiao went to the hospital where she received a “return to
work statement” which stated that she may return to work
without restrictions 1 month later, on June 29.
Boss Zhang visited Xiao at her home on June 1. He asked
what happened and when told that Xiao did not cause the alter-
cation, said that Sister Gao would investigate. Zhang told her to
“just get rest. I hope you can go to work.” He told her to keep
her medical records, but that he would pay her. Xiao stated that
she was not paid by the Respondent for the time she did not
work after her injury or for her medical expenses.
On June 21, Zhang called Xiao and was told that she contin-
ued to have headaches. Zhang told her to rest and “don’t rush to
return to work.” In late July, Zhang called again and asked
where she was. Xiao told him that “I was at the China Town,
the worker union.” Zhang said that he would call her again, but
did not. Xiao testified that the Union helped her file the charge
in this case, and also assisted workers in filing their minimum
wage and other lawsuits.
C. The Physician’s Notes
Xiao stated that in June and July she had intermittent pain,
dizziness and headaches. She filed a claim for workers com-
pensation and on July 7, 2014, visited physician Dr. Frantz
Jasmin who wrote a note which stated that she was being treat-
ed for (a) postconcussion (b) neck pain and (c) pain in both
shoulders. The note stated that she was currently “disabled as a
worker until re-evaluation in 4 weeks.” Xiao gave the note to
employee Min Fu to present to Sister Gao. Min Fu testified that
he did so.
One month later, on August 4, Dr. Jasmin wrote that Xiao
EAST VILLAGE GRAND SICHUAN INC. D/B/A GRAND SICHUAN RESTAURANT 5
was seen for “both shoulders, neck and head injuries” and was
disabled from work for 4 weeks. Xiao gave this note to Sister
Gao a day or two later. Sister Gao appeared unhappy at receiv-
ing the note.
Xiao stated that during September, she experienced head-
aches, dizziness, and shoulder pain. She visited Dr. Jasmin that
month. His September 3 note was identical to the July 14 note
and also indicated that she was disabled from work for four
weeks. Xiao gave the note to Sister Gao.
On October 1, Dr. Jasmin wrote that Xiao was being treated
for headaches and shoulder pain, and was disabled from work
for 4weeks. She gave the note to Sister Gao who, at hearing,
admitted receiving it.
Xiao testified that when she gave the notes to Sister Gao, she
did not ask to return to work because she did not know when
she would able to return to work or when she would be fully
recovered. Therefore, she could not tell Sister Gao when she
would return to work.
Xiao conceded that in November 2014, Dr. Jasmin told her
that he could not say that she could “fully” return to work, but
that she could “try to work.” He did not give her a note that
month or in December that she was disabled from work.
Xiao testified that she did not return to work for the Re-
spondent in November or December because she was not fully
recovered, and was not certain that she was capable of working
on a full-time basis as she had in the past. She reasoned that she
preferred not to return to work for the Respondent only to find
that she was capable of working only one or two days and then
having to give an excuse for not being able to work.
However, in November, Xiao applied for work as a busboy
at four restaurants. At three of the restaurants she agreed to start
work on a specific day. However, when that day arrived, she
felt dizzy, had headaches and believed that she could not work.
She did not report to work. She worked one day at the fourth
restaurant, located in Connecticut. The following day she expe-
rienced headaches and did not return to work. Although she
was asked to return again to try to work at some of those restau-
rants, she did not.
Notwithstanding that she tried to work at four restaurants in
November 2014, Xiao did not communicate with the Respond-
ent in November or December in an effort to return to work, or
for any other reason.
Xiao stated that, in December 2014, she told Dr. Jasmin that
she was always feeling dizzy. Another physician recommended
an injection of some type or physical therapy.
D. Xiao Files a Federal Lawsuit
In August 2014, Xiao spoke to coworkers Min Fu, Chang
Hui Lin, Ah Ying, and Fu Xiao about joining her in filing a
lawsuit against the Respondent for its failure to pay them the
minimum wage. She urged them to become “united together to
sue the restaurant.” She told them that they had been working
for the Respondent for a long time at long hours and have not
been treated very well. She spoke to Ah Ying two or three
times about the need to sue the Respondent.
On November 13, 2014, Xiao filed a complaint against the
Respondent in U.S. District Court alleging violations of the Fair
Labor Standards Act and the New York State Labor Law in its
failure to pay her the minimum wage, pay for overtime work,
and withholding tip money.
After she filed the suit she again asked Min Fu several times
and she also asked Ah Ying, Min Fu and Chang Hui Lin to join
the suit. She told Min Fu that a lawsuit was necessary to require
the Respondent to pay the minimum wage, and to stop it from
requiring them to purchase their own uniforms. She urged,
“why don’t we put together to the Boss?” Min Fu corroborated
Xiao’s statement that she asked him five or six times to join her
lawsuit, saying that the Respondent did not treat them fairly,
urging him to “join together to sue.” On August 11, 2015, Min
Fu filed his own lawsuit against the Respondent alleging the
same violations as those set forth in Xiao’s complaint.
Ah Ying and Min Fu told Xiao that they were undecided
about joining her lawsuit, but Chang Hui Lin agreed. On April
30, 2015, Xiao’s complaint was amended to include Chang Hui
Lin.
E. Xiao Attempts to Return to Work with the Respondent
Min Fu began work in September 2013, and quit in May,
2014. He returned to work 1 month later. He testified that in
July 2014, Sister Gao told him that Xiao had no illness and was
just “acting out.” She also told him that the “Fuzhounese
speakers, they are united, they want to sue the restaurant to
make money.”
Min Fu further testified that in September, 2014, following
the discharge of employee Dayong Chen, he heard Sister Gao
say that “all Fuzhounese, they are united, and Dayong Chen
will sue me.”
After Chang Hui Lin was fired in October, 2014, Min Fu
heard Sister Gao say that “all the Fuzhounese, they want to sue
the restaurant, sue the boss to make the money.” Min Fu re-
called that after employee Xue Qin Tang stopped work in late
October 2014, Sister Gao said that Xue Qin Tang would sue
her. She further said that she (Gao) would not take the same
course of action as Boss Zhang by paying the employees. Ra-
ther, she will “fight to the end.”
On January 2, 2015, Xiao entered the Respondent’s restau-
rant with Chang Hui Lin, and asked cashier Phoebe to see Sis-
ter Gao. Phoebe said that she was in the kitchen and asked her
to wait. Xiao stated that Sister Gao exited the kitchen and ap-
proached her with a “very mad face.” Xiao asked her “can you
arrange what time for me to return to work?”
Sister Gao replied, “you coming back to work? You suing
the Boss? You suing the restaurant, and now you want coming
back to the restaurant to work? This is not right. Go look for
your lawyer. You want to come back to work?” Xiao concluded
that Sister Gao “not allow me back to work.”
Min Fu was present during this exchange, and testified in de-
tail about the confrontation. He stated that he was standing near
the restaurant’s door and greeted Xiao as she entered. He saw
Sister Gao leave the kitchen and tell Xiao “you sued the restau-
rant and now you want to come back to work.” He corroborated
Xiao’s version of her exchange with Sister Gao, adding that
Sister Gao spoke in a very loud, high pitched voice.
Analysis and Discussion
The complaint alleges that the Respondent discharged Xiao
because she engaged in protected concerted activity by filing a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
civil action against the Respondent in U.S. District Court which
alleged violations of the Fair Labor Standards Act and the New
York Labor Law.
The question of whether the Respondent unlawfully dis-
charged Xiao is governed by Wright Line, 251 NLRB 1083,
1084 (1980). Under that test, the General Counsel must prove
by a preponderance of the evidence that animus toward Xiao’s
concerted activity was a substantial or motivating factor in the
decision to discharge her. The General Counsel must show that
Xiao engaged in concerted activity, employer knowledge of
such activity, and animus toward such conduct by the Respond-
ent.
Once the General Counsel has made the requisite showing,
the burden then shifts to the Respondent to prove, as an affirm-
ative defense, that it would have discharged Xiao even in the
absence of her concerted activity.
To establish this affirmative defense “an employer cannot
simply present a legitimate reason for its action but must per-
suade by a preponderance of the evidence that the same action
would have been taken even in the absence of the protected
activity.” L. B. & B. Associates, Inc., 346 NLRB 1025,1026
(2006). “The issue is, thus, not simply whether the employer
‘could have’ disciplined the employee, but whether it ‘would
have’ done so, regardless of [her protected] activities.” Carpen-
ter Technology Corp., 346 NLRB 766, 773 (2006).
The General Counsel’s Case
Xiao engaged in concerted activities by conversing with her
fellow, Fuzhounese-speaking coworkers once or twice per
week concerning their working conditions. Three of those co-
workers filed a Federal lawsuit thereafter in 2012 alleging as
violations the very same matters they spoke about during their
breaks.
Xiao also asked Sister Gao if the tips could be increased. Her
request was concerted because it addressed the wage concerns
of other employees.” Salisbury Hotel, 283 NLRB 685, 686–687
(1987). Her request reflected the complaints of other workers
that their tips were unlawfully inadequate. In fact, the Federal
lawsuit alleged that they were not paid their proper tips.
Further, employees’ “discussion of wages is protected con-
certed activity because wages are a ‘vital term and condition of
employment,’ probably the most critical element in employ-
ment and the grist on which concerted activity feeds.”
Aroostook County Regional Ophthalmology Center, 317 NRLB
218, 220 (1995), enf. denied in part 81 F.3d 209 (D.C. Cir.
1996)
.In addition, Xiao’s filing of the Federal lawsuit alleging im-
proper wage payments constitutes protected, concerted activity.
U Ocean Palace Pavilion, Inc., 345 NLRB 1162, 1170 (2005).
Prior to the filing of her lawsuit, Xiao spoke to fellow work-
ers about their need to join together to sue the Respondent for
its failure to pay the minimum wage.
he Respondent’s knowledge of her conversations with her
fellow workers is clearly established in manager Wang’s warn-
ings to her in 2013 that she should not “hang out” with the three
plaintiffs because they were suing the restaurant and were part
of the workers union. He told her the Boss would not like her to
associate with them, would not like her for doing so, and that
he would not care about her. Despite the warnings that she stay
away from those employees she told Wang that she would con-
tinue to take breaks with them and that he should not bother
them. Her insistence that she would disobey his order to disas-
sociate with them made it clear that she was in league with
them in their attempts to remedy the alleged improper work-
place issues they faced.
Similarly, the Respondent’s knowledge that she brought a
lawsuit against the Respondent, and its animus toward her for
doing so is established in Sister Gao’s angry refusal to permit
her to return to work, saying that she sued the restaurant and
now wants to work for it? Gao’s adding that “this is not right”
demonstrates Sister Gao’s animus toward her because she filed
the lawsuit.
Respondent’s animus toward Xiao and her Fuzhounese co-
workers is also amply demonstrated by Sister Gao’s telling Min
Fu that the Fuzhounese speakers are united and want to sue the
restaurant, and that she would “fight to the end.” Of course, as
the Respondent argues, there is nothing unlawful in the Re-
spondent’s desire to defend the lawsuits against it. However, its
discharge of Xiao for suing the restaurant violates the Act.
Xiao gave uncontradicted testimony about her visit to the
Respondent’s premises on January 2, 2015, at which she asked
Sister Gao what time she could return to work. Gao sarcastical-
ly replied that Xiao is suing the Boss and the restaurant and
wants to return to work, adding “this is not right,” advising that
she “look for your lawyer.”
I credit Xiao’s interpretation that this exchange constituted
her discharge. She understood that she could no longer work at
the restaurant. She stated that Gao did not allow her to return to
work. No words of art are necessary to establish a discharge.
Indeed, the Respondent’s answer admitted that it discharged
Xiao.
Based on the record evidence, I find that the General Coun-
sel has proven that the Respondent was motivated in discharg-
ing Fang Xiao by her filing the Federal lawsuit alleging that it
failed to lawfully compensate her. Wright Line, above.
The Respondent’s Case
The Respondent’s answer to the complaint admits that it dis-
charged Xiao on January 2. However, no evidence was adduced
as to why it discharged her. Gao, the Respondent’s witness, did
not contradict or deny Xiao’s testimony that when she appeared
for work she was simply told that she sued the restaurant and
expected to be rehired?
The Respondent changed its position, arguing in its brief that
it did not discharge Xiao. Rather, it argues that it not have to do
so because she abandoned her position. Shifting of positions is
evidence of unlawful motivation. Naomi Knitting Plant, 328
NLRB 1279, 1283 (1999) (shifting reasons constitute evidence
of discriminatory motivation); Black Entertainment Television,
324 NLRB 1161 (1997) (Board noted Respondent's shifting
explanations given in its position statement and its assertions at
the hearing for reducing hours and laying off of employees.
“The Board has long expressed the view that when an employer
vacillates in offering a rational and consistent account of its
actions, an inference may be drawn that the real reason for its
conduct is not among those asserted,” Sound One Corp., 317
EAST VILLAGE GRAND SICHUAN INC. D/B/A GRAND SICHUAN RESTAURANT 7
NLRB 854, 858 (1995); Mastercraft Casket Co., 289 NLRB
1414, 1420 (1988), enfd. 881 F.2d 542 (8th Cir. 1989). I infer
that the reasons given for discharging Xiao, including her al-
leged abandonment of her job, are not the true reasons for the
Respondent’s refusal to add her to the work schedule.
The Employer further argues that, even assuming that it fired
Xiao, it did so lawfully because she did not appear to work for
60 days from the time, in November, 2014, that her physician
did not provide a statement of disability.
Sister Gao testified that after receiving Dr. Jasmin’s notes
that Xiao was disabled for each month she did not take any
action concerning them. Rather, she simply noted that she “has
excuse from work.” She did not know when she would return to
work, but she expected, thought and hoped that she would hear
from Xiao at the expiration of the 4 weeks noted in the docu-
ments.
Certainly, Sister Gao said nothing to Xiao on January 2 con-
cerning her alleged abandonment of her job. She did not tell her
that she had been absent from work for too long a period of
time. Nor could she have done so since Xiao was absent from
work for about one year, from March, 2012 to early 2013 due
to a trip to China and her work in another restaurant. No com-
plaint was made to her about being away from work for so
long, and there was no evidence that she was in contact with the
Respondent during that period of time. In fact, Manager Wang
called her in early 2013 and asked her to return to work, which
she did. Further, there was no evidence that the Respondent had
a policy or any standards concerning the amount of time a
worker could be absent from work. Accordingly, the Respond-
ent’s defense that Xiao abandoned her job or that it would have
fired her for her absence has no merit.
Further, it appears that the Respondent was anxious to have
Xiao return to work until it was told the she was seeking the
help of the union and until it received the lawsuit she filed.
Thus, Boss Zhang Wang visited her at home in June after her
injury. Later that month, he told her to rest. When Xiao told
him in July that she was at the union’s premises, he said he
would call her again but did not. Further, Gao testified that
when she received the physician’s notes she hoped that she
would return to work.
That friendly attitude changed when Xiao filed the lawsuit in
November 2014. When she attempted to return to work 4 or 5
months later, she was discharged.
The Respondent argues that Xiao’s failure to advise the Re-
spondent that she wanted to return to work, following the ad-
vice from her physician in November 2014 that she should try
to work, establishes that she abandoned her job. Xiao admitted-
ly did not communicate with and had no contact with any of the
Respondent’s managers from the time that Dr. Jasmin suggest-
ed in early November that she try to work, until January 2,
2015, when she asked to return.
According to the Respondent, Xiao’s failure to tell the Re-
spondent during that period of time that she was no longer dis-
abled, that she claimed to continue to be disabled, that she was
not seeking employment elsewhere, or that she had not aban-
doned her job with the Employer, established that she intended
to abandon her job.
The Respondent asserts that following its receipt of physi-
cians’ notes in May and July through October 2014 that she
continued to be disabled from work, it “continued to hold her
job available.” However, when Xiao failed to provide similar
notices of disability in November and December, when it did
not hear from Xiao, it concluded that she was no longer inter-
ested in resuming work at the restaurant.
The Respondent asserts that it should not have to “hold open
indefinitely” Xiao’s position when she did not “fulfill her obli-
gations to the restaurant” by notifying it of her continued disa-
bility or her interest in returning to work during the months of
November and December.
It therefore follows, argues the Respondent, that it was enti-
tled to conclude that Xiao abandoned her job when she did not
provide a physician’s notice of disability in November or De-
cember 2014 as she had in the past, and had also not sought to
return to her job or communicate with the Respondent.
The Board has held that “in order to establish abandonment
of employment . . . an employer must present ‘unequivocal
evidence of intent to permanently sever [the striker’s] employ-
ment relationship . . .’” L. B. & B. Associates, Inc., 346 NLRB
1025, 1029 (2006). The Respondent has made no showing that
Xiao unequivocally intended to permanently sever her em-
ployment relationship with the Employer.
In fact, during the course of her treatment for her injury,
Xiao timely presented physicians’ notes of her disability to the
Respondent. Her only lapse was in the months of November
and December which was due to the fact that she received none
in those months. She then asked for her job in January. Howev-
er, Xiao was not notified during that time that she was dis-
charged or that she had been replaced. Further, as set forth
above, Xiao was absent from work for nearly 1 year and was
asked, by the Respondent, to return to work after that lengthy
absence.
Moreover, the Respondent argues that Xiao’s actions in
seeking work at four other restaurants in November 2014, es-
tablish her intent to abandon her job with the Respondent.
The fact that Xiao sought other employment does not prove
that she abandoned her job. She stated that she tried to work
pursuant to Dr. Jasmin’s advice but found that she was unable
to do so. Her explanation was understandable that she sought
work in jobs where she could stop work without difficulty. She
credibly reasoned that if she returned to work full time at the
Respondent and found that she was unable to work she would
have to make an excuse for not being able to work.
Accordingly, I cannot find that Xiao abandoned her job with
the Respondent. I also find and conclude that the Respondent
has not met its burden of proving that it would have discharged
Fang Xiao even in the absence of her protected, concerted ac-
tivities. Wright Line, above.
CONCLUSIONS OF LAW
1. The Respondent, East Village Grand Sichuan Inc. d/b/a
Grand Sichuan Restaurant, is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Respondent violated Section 8(a)(1) of the Act by
discharging its employee Fang Xiao.
3. The unfair labor practices set forth above are unfair labor
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE 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 and re-
fused to reinstate Fang Xiao, it must offer her reinstatement to
her former position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to her sen-
iority or any other rights or privileges she would have enjoyed
absent the discrimination against her. Further, I shall recom-
mend that the Respondent make her whole for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against her.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). In accord with Don Chavas, LLC d/b/a Tortil-
las Don Chavas, 361 NLRB No. 10 (2014), my recommended
Order also requires the Respondent to (1) submit the appropri-
ate documentation to the Social Security Administration so that
when backpay is paid to Xiao, it will be allocated to the appro-
priate calendar quarters, and/or (2) reimburse her for any addi-
tional Federal and State income taxes she may be assessed as a
consequence of receiving a lump-sum backpay award covering
more than 1 calendar year.
In accordance with the Board’s decision in J. Piccini Floor-
ing, 356 NLRB 11, 13–15 (2010), I shall recommend that the
Respondent be required to distribute the attached notice to
members and employees electronically, if it is customary for
the Respondent to communicate with employees and members
in that manner. Also in accordance with that decision, the ques-
tion as to whether a particular type of electronic notice is ap-
propriate should be resolved at the compliance stage. Id. at 13–
14. See Teamsters Local 25, 358 NLRB 54 (2012).
The General Counsel asks that I recommend that Xiao be
awarded reimbursement of expenses incurred while she sought
interim employment. Inasmuch as the Board has not awarded
such a remedy, I shall not do so here.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, East Village Grand Sichuan Inc. d/b/a
Grand Sichuan Restaurant, New York, NY, its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
(a) Discharging employees because of their concerted activi-
ties.

5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Fang Xiao full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
(b) Make Fang Xiao whole for any loss of earnings and other
benefits suffered as a result of the discrimination against her, in
the manner set forth in the remedy section of the 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 Fang Xiao in writing that this
has been done and that the discharge will not be used against
her in any way.
(d) Within 14 days after service by the Region, post at its fa-
cility in New York, New York, copies of the attached notice
marked “Appendix.” 6 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent's authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since November 13, 2014.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. January 14, 2016

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the nation-
al Labor Relations Board” shall read “Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
EAST VILLAGE GRAND SICHUAN INC. D/B/A GRAND SICHUAN RESTAURANT 9
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge you because of your protected, con-
certed activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order,
offer Fang Xiao full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
WE WILL within 14 days of the date of the Board’s Order,
make Fang Xiao whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against her.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge,
and within 3 days thereafter notify Fang Xiao in writing that
this has been done and that the discharge will not be used
against her in any way.
EAST VILLAGE GRAND SICHUAN INC. D/B/A GRAND
SICHUAN RESTAURANT
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02–CA–143468 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.