Ji Shiang, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 27, 2011

29-CA-029927 (N.L.R.B. Jul. 27, 2011)

JD(NY)–24–11
Flushing, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
JI SHIANG, INC.
and Case No. 29-CA-29927
LOCAL 318, RESTAURANT WORKERS’ UNION
Kathy Drew-King, Esq., Brooklyn, New York,
for the Acting General Counsel
Brian Shenker, Esq., Law Offices of Benjamin B.
Xue, P.C., New York, New York, for the Respondent
Amy Tai, Esq., Urban Justice Center, New York,
New York, for the Charging Party
SUPPLEMENTAL DECISION
Statement of the Case
LAUREN ESPOSITO, Administrative Law Judge. This supplemental proceeding was
tried before me in Brooklyn, New York, on June 9, 2011. A compliance specification and
amended compliance specification and notice of hearing were issued on February 18 and May
12, 2011, respectively, based upon an unpublished order of the Board dated November 9,
2010,1 which provided that Ji Shiang, Inc. take certain affirmative action, including offering Li
Rong Gao and Xiao Hong Zheng employment in the positions they applied for and making them
whole for any loss of earnings or other benefits resulting from Respondent’s discrimination
against them. On February 7, 2011, the United States Court of Appeals for the Second Circuit
issued its judgment enforcing the Board’s order.
On June 8, 2011, Counsel for the Acting General Counsel (the “General Counsel” filed
and served a notice to amend the compliance specification, and when the hearing opened the
next day General Counsel moved to make the relevant amendments. I granted General
Counsel’s motion.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
Findings of Fact

1 The Board’s November 9, 2010 order was based on the decision and recommended order
of Administrative Law Judge Steven Fish in Ji Shiang, Inc., JD(NY)-36-10, dated September 20,
2010.
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Discriminatees Li Rong Gao and Xiao Hong Zheng were employed by Guang Zhou
Restaurant as a waitress and a captain, respectively. When Respondent took over the
operations of Guang Zhou Restaurant on June 2, 2009, it refused to hire Gao and Zheng. ALJ
Steven Fish found that Respondent refused to hire or consider Gao and Zheng for employment
because they engaged in activities in support of the Charging Party Union, and because they
engaged in other protected concerted activities, in violation of Sections 8(a)(1) and (3) of the
Act. Ji Shiang, Inc., JD(NY)-36-10 (September 20, 2010).
On August 2, 2010, Respondent hired Gao and Zheng as a waitress and a captain. The
parties agree that Gao’s backpay period terminates as of that date. However, General Counsel
contends that Zheng’s backpay period continued past her hiring, in that Zheng had been
assigned fewer hours of work than the other captains employed by Respondent after she was
hired, resulting in lower earnings. As a result, General Counsel contends that the backpay
period for Zheng extends to February 13, 2011, when Ji Shiang apparently closed.
Ellen Farbin, a field examiner in the compliance division of Region 29, testified regarding
her preparation of the back pay calculations for Gao and Zheng. Farbin has worked in the
compliance division of Region 29 for about eight years, and has prepared numerous backpay
calculations during that time. Farbin testified that because she had no payroll or other records
for the period June 2, 2009 through July 1, 2009, she calculated gross backpay based upon
Gao and Zheng’s reports of what they were earning at Guang Zhou and at Ji Shiang after they
were hired. Farbin testified that because Respondent’s payroll records were available for the
period July 1, 2009 through August 2, 2010, she based Gao and Zheng’s gross back pay on the
average hours, wage rates, and tips earned by comparable wait staff and captains during that
period. For Zheng, Farbin based her calculations during the period August 2, 2010 to February
13, 2011 on Respondent’s payroll records.
Farbin testified that her calculation of tips involved two separate components. She
began with the tip amounts contained in Respondent’s payroll records for comparable
employees, and then added $200 per week, which was reported to her as an additional amount
of tips each employee received that was not recorded in the payroll records. Wei Shen Tan, a
waiter employed by Respondent who had also been employed by Guang Zhou, testified
regarding cash tips which were not documented in Respondent’s payroll records. Tan testified
that he began working at Ji Shiang on the day it opened in June of 2009. Tan testified that
employees at Ji Shiang shared in a tip pool in addition to their direct wages. Tan testified that
for the month of June 2009 he received $600 direct wages in cash and a little more than $2,000
in tips. He testified that beginning in July 2009 he was paid by check, and earned $4.60 (later
$4.65) per hour in direct wages. Tan’s share of the tip pool was .8 until Gao and Zhen returned
to work in August 2010, and was then increased to .9. Tan testified that his monthly tip income
totaled $600 to $700 per week on a good month, and $400 per week when business was
slower. However, he testified that his total tip income never appeared on his pay stub,2 and that
in general he earned approximately $200 to $300 in tips each week which were not recorded.
Analysis and Conclusions
A. General Legal Framework

2 Tan’s pay stubs for July 2009 state that he earned between $175 and $215 in tips per
week.
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The objective in compliance proceedings is to restore to the extent feasible the status
quo ante, by restoring the conditions which would have existed absent the Respondent’s
unlawful conduct. See, e.g., Parts Depot, Inc., 348 NLRB 152 153 (2006). The General
Counsel is permitted “wide discretion” in choosing a formula to calculate backpay, and must
only “establish gross backpay amounts that are reasonable, and not arbitrary.” Id., citing
Performance Friction Corp., 335 NLRB 1117 (2001).
Once the General Counsel has established the amounts of gross backpay due, the
Respondent then bears the burden of substantiating affirmative defenses, including willful loss
of interim earnings and the failure of a discriminatee to mitigate damages. Midwestern
Personnel Services, 346 NLRB 624, 625 (2006). When a respondent argues that a
discriminatee has failed to adequately search for interim work, the respondent must satisfy a
burden of coming forward with evidence that substantially equivalent jobs existed in the relevant
geographic area during the backpay period. St. George Warehouse, 351 NLRB 961, 967
(2007). If the respondent does so, the burden then shifts to the General Counsel to “produce
competent evidence of the reasonableness of the discriminatee’s job search.” Id. When a
respondent argues that a discriminatee has willfully avoided or failed to retain substantially
equivalent work, it must adduce evidence demonstrating that the discriminatee voluntarily quit
interim employment or lost interim work through deliberate or gross misconduct. Baker
Electrics, 351 NLRB 515, 565 (2007), citing Minette Mills, 316 NLRB 1009, 1010 (1995); Basin
Frozen Foods, 320 NLRB 1072, 1077 (1996).
B. Respondent’s Specific Contentions
I find that the gross backpay formula used by the General Counsel, as discussed by
Farbin in her testimony, was reasonable.3 Respondent’s contention that the use of comparable
employees to calculate gross backpay was somehow unreasonable is contrary to well-settled
Board law. See, e.g., Contractor Services, Inc., 351 NLRB 33, 35 (2007) (“The comparable or
representative employee approach is an accepted methodology for computing backpay”). Its
argument that tips should not be included in the gross backpay calculations is equally meritless.
Atlantic Limousine, 328 NLRB 257, 258 (1999) (including tips in gross backpay calculations).
Indeed, Respondent provides no legal basis for either of these assertions. Nor does
Respondent cite any precedent for its assertion that tips not included by Respondent in the
employees’ paychecks should not be encompassed in the gross backpay figures. In fact, the
Board has specifically declined to adopt such a rule. See Atlantic Limousine, 328 NLRB at 258;
Hacienda Hotel & Casino, 279 NLRB 601 (1986).
Respondent’s argument that Zheng’s backpay period should also be terminated as of
August 2, 2010, the date of her reinstatement, is also unavailing. Respondent was required
under the Board’s order to offer Zheng the position that she applied for or a substantially
equivalent position. General Counsel contends, based upon payroll records provided by
Respondent, that Zheng was not offered her position or a substantial equivalent, in that she was
assigned fewer work hours than the other captains. Respondent admits in its post-hearing brief
that Zheng was not assigned as many hours as the other captains, but offers no legitimate
reason for doing so or evidence to explain this distinction. As a result, General Counsel’s gross

3 Respondent contends in its post-hearing brief that it had legitimate, non-discriminatory
reasons for refusing to hire Gao and Zheng on June 2, 2009. Such contentions were already
litigated in the unfair labor practice proceeding before Judge Fish, and may not be raised again
here. See, e.g., Willis Roof Consulting, 355 NLRB No. 48 at p. 1, fn. 1 (2010).
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backpay formula reasonably incorporated the difference between the work hours assigned to
Zheng and those of other employees in her job classification.
Finally, Respondent’s various arguments involving failure to mitigate theories are
completely unsubstantiated, and must be rejected.4 Respondent claims in its brief that Gao did
not make an adequate search for work, but it did not offer any evidence in support of this
contention, including evidence regarding the availability of substantially equivalent jobs in the
relevant geographic area. St. George’s Warehouse. 351 NLRB at 967. Respondent offered no
evidence to support the assertion in its brief that Zheng was fired from her interim employment,
let alone that she was discharged for deliberate or gross misconduct. Baker Electrics, 351
NLRB at 534, 565. Nor is there any evidence in the record that Zheng voluntarily resigned
substantially equivalent interim employment.5 Parts Depot, 348 NLRB at 154.
For all of the foregoing reasons, I find that General Counsel’s proposed gross backpay
figures are reasonable. I find that Respondent has failed to establish any defenses based on a
failure to mitigate damages, and that no reductions should be made from the backpay
calculations contained in General Counsel’s amended compliance specification. I shall
therefore recommend that Respondent pay the amounts specified to the discriminatees, plus
interest.
The Remedy
As stated above, I shall recommend that Respondent reimburse the discriminatees, plus
interest, in the amounts as set forth in the amended compliance specification as follows:
Li Rong Gao $36,838.89
Xiao Hong Zheng $30,364.88
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended6
ORDER
Respondent Ji Shiang,, Inc., its officers, agents, successors, and assigns, shall make
whole the individuals named below, by paying them the amounts following their names, plus

4 At the hearing, I rejected Respondent’s assertion that the General Counsel was required to
pay for interpreters for Respondent’s case. A & A Insulation Services, 344 NLRB 322, 324-325
(2005); Domsey Trading Corp., 325 NLRB 429 (1998).
5 Respondent’s contention that unemployment benefits received by Gao and Zheng should
be deducted from gross backpay is contrary to the Supreme Court’s decision in NLRB v. Gullett
Gin Co. , 340 U.S. 361, 364 (1951).
6 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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interest to be computed in the manner prescribed in Kentucky River Medical Center, 356 NLRB
No. 8 (2010), minus tax withholdings as required by Federal, State and local laws:
Li Rong Gao $36,838.89
Xiao Hong Zheng $30,364.88
Dated: Washington, DC, July 27, 2011.
__________________________
Lauren Esposito
Administrative Law Judge