Matsu Corp. d/b/a Matsu Sushi Restaurant

National Labor Relations Board - Administrative Judge Opinions

Oct 26, 2018

01-CA-214272 (N.L.R.B. Oct. 26, 2018)

JD(NY)-14-18
Brooklyn, NY

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MATSU CORP. D/B/A/ MATSU SUSHI
RESTAURANT
Case 01-CA-214272
and
FLUSHING WORKERS CENTER
Brent Childerhose, Esq.
for the General Counsel.
Benjamin B. Xue, Esq.
for the Respondent.
DECISION
STATEMENT OF THE CASE
KENNETH W. CHU, Administrative Law Judge. This case was tried in Brooklyn, New
York, New York on July 30, 2018. The Flushing Workers Center filed the charge on February 2,
20181 and the General Counsel issued the complaint on March 29, 2018. The complaint alleges
that the Matsu Corp. d/b/a Matsu Sushi Restaurant (Respondent) violated Section 8 (a)(1) of the
National Labor Relations Act (Act) by discharging employees Liguo Ding and Jianming Jiang
because they engaged in protected concerted activity by refusing to work under unsafe working
conditions. On the entire record, including my observation of the demeanor of the witnesses2,
and after considering the briefs filed by the General Counsel and the Respondent3, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent has been engaged in operating a restaurant with an office and place of
business located at 33 Jessup Road, Westport, Connecticut, serving food and beverages to the

1 All dates are in 2017 unless otherwise indicated.
2 Witnesses testifying at the hearing were Jianming Jiang, Liguo Ding, Yan Lin, and Michael
Cao.
3 The exhibits for the General Counsel are identified as “GC Exh.” The closing briefs are
identified as “GC Br.” and “R. Br.” for the General Counsel and the Respondent, respectively.
The hearing transcript is referenced as “Tr.”
JD(NY)-14-18
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public. The Respondent denied jurisdiction in its answer, but based upon the testimony of
Respondent’s agent4, I find that during the past 12 months, Respondent has purchased and
received goods valued in excess of $5,000 at its Westport restaurant from suppliers located
outside the State of Connecticut (Tr. 18, 19). Therefore, I find that the Respondent is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 5
The Charging Party is a community organization that represents workers and is involved
in employment and labor issues. As such, I find that the Flushing Workers Center is a labor
organization under Section 2(5) of the Act.
10
II. ALLEGED UNFAIR LABOR PRACTICES
BACKGROUND
The Respondent is a restaurant situated in Westport, Ct., approximately 50 miles from 15
New York City. The Respondent serves cooked and raw (sushi) food to the public. The
Respondent employs about 12 employees in the restaurant, including the wait staff, chefs and
kitchen employees. Jianming Jiang (Jiang) and Liguo Ding (Ding) are kitchen chefs and share
responsibilities in purchasing some of the groceries for the kitchen and in cooking the dishes.5
Both worked for the Respondent for over 10 years.6 Most of these employees, including Jiang 20
and Ding, are transported to the restaurant by the Respondent in a company mini-van from points
in Queens, New York to the Westport restaurant.
At the time of the hearing, the two principal owners were Michael Cao and Marty Cheng.
Cao works at the restaurant and Cheng visits the restaurant on occasions (Tr. 13). Yan Lin (Lin) 25
is the manager of the restaurant. In 2017, Cao and Cheng had an equal 29 percent share in the
restaurant and Lin owned 10 percent. Cao testified that some of the workers also owned shares
in the restaurant, including Jiang and Ding, who both owned 5 percent.7 Cao also testified that
Jiang and Ding would receive dividends from the restaurant’s profits (Tr. 105, 106).
30

4 Yan (Maggie) Lin testified that she is the manager of the Respondent’s Westport restaurant
and serves as the liaison between the two owners and the employees. Lin did not have the
authority to hire and fire, but has the authority to schedule work shifts, approve leave, pay the
workers, arrange for purchase orders, accept delivery of goods and conveys the instructions and
messages from the owners to the workers. As such, I find that Yan Lin is a Section 2(13) agent
under the Act and reject the Respondent’s denial in its answer to the contrary. Facchina
Construction Co., 343 NLRB 886 (2004).
5 The Respondent maintains in its answer to the complaint that Ding and Jiang were part-
owners of the Matsu Corp., and not employees (GC Exh. 1). At the hearing, the Respondent
admitted and stipulated that Ding and Jiang were employees as defined under the Act (Tr. 21).
6 Ding started work at the restaurant in 2003 and Jiang in 2002 (Tr. 55, 83).
7 Ding disputed that he was a shareholder in the restaurant. He testified meeting with the
representatives from the Flushing Workers Center in July 2017 for advice on how to get back a
deposit he paid to Respondent so that he could work in the restaurant (Tr. 59).
JD(NY)-14-18
3
The restaurant is open from Monday through Thursday from 11 a.m. to 10 p.m. On
Fridays, the hours were from 11 a.m. to 11 p.m. On the weekends, the hours are from 12 noon
until 10 p.m. The Respondent provides transportation to and from the restaurant for the workers,
including Jiang and Ding, who both reside in the Flushing, New York area. Jiang and Ding
would usually purchase the groceries and other food items needed in the kitchen before they are 5
transported to Westport. Ding testified that he usually buys the groceries around 8 a.m. and
Jiang would be picked up about 8:30 a.m. before leaving in the company van (Tr. 56, 89). Both
workers finish their shifts when the restaurant closes and are driven back to their residence by the
Respondent. Both are usually home about 12 midnight.
10
Lin and Cao testified that the Westport restaurant would regularly receive large catering
orders for up to 2,000 patrons at least once every 4 months. On those occasions, the kitchen staff
(including Jiang and Ding) would work an extra shift from 1 a.m. to 6 a.m. on the morning of the
big order. As a consequence, both workers would be scheduled from 11 a.m. until 11 p.m.;
resume preparing and cooking the food at 1 a.m. to 6 a.m. on the morning of the big order; and 15
then continue to work on the big order when they begin their normal shift at 11 a.m. until the
restaurant closed at 10 p.m. (Tr. 27).
Cao testified that Jiang and Ding were not continuously working for the entire day and
night because they receive a 1 ½ hour break and two 30-minute meals. Cao also stated that on 20
the morning of the big order, both workers were permitted to sleep on the restaurant’s second
floor at the end of the shift from 10 p.m. until 1:30 a.m. before resuming work from 1 a.m. to 6
a.m. After 6 a.m., Jiang and Ding could rest again on the upstairs floor until the start of their day
shift at 11 a.m. (Tr. 110--116).
25
In contrast, Jiang and Ding testified that their core hours of work actually starts at 8 a.m.
when they are required to purchase groceries and other food items before they are driven to the
restaurant and their workday would end at 10 p.m. Ding testified that on the day before a big
order, he and Jiang would begin work at 8 a.m. until 10 p.m. on the first day and continue
working through the morning of the second day until 10 p.m. (Tr. 65, 66).30
The PROTECTED CONCERTED ACTIVITY
Ding testified that he had routinely worked the large catering orders throughout his tenure
at the restaurant. Ding said that the long work hours were having a toll on his health and that he 35
felt sick after working a big order in September 2017. At that point, Ding said he spoke to Jiang,
that the 36-hour shift they had worked for the September big order was affecting his health.
Jiang agreed that the big order in September also affected his health and they decided in
September not to work the extra shift from 1: a.m. to 6 a.m. on any future big catering orders (Tr.
57, 58).8 40

8 Ding and Jiang testified with a language interpreter. Deng’s testimony regarding Jiang was
mistakenly transcribed as “Cheng” in Tr. 61, 66 and 69. A reasonable reading of the transcript
shows that Ding was referring to Jiang in his testimony and not to owner Cheng.
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4
Ding and Jiang would also meet with the representatives and an attorney at the Flushing
Workers Center (Center) to discuss their long work hours, wages, the big orders and other terms
and conditions of their employment at the restaurant (Tr. 60). Deng and Jiang sought advice
from the Center regarding the big orders and both agreed that they would refuse to work
continuously for 36 hours. According to Ding, a representative from the Center advised that they 5
should not work the entire 36 hours if it is harmful to their health (Tr. 61).
On December 5, Ding and Jiang were informed that there would be a large catering order
for December 14. Ding testified that he phoned Jiang after the call and both reaffirmed their
decision in September not to work extra hours on the big order.10
On December 6, Ding was in the Respondent’s van commuting to the restaurant along
with Lin and the other workers. Jiang was not working on December 6. During the ride to work,
Ding informed Lin that he and Jiang would not work the entire 36 hours. Ding said he would
work his normal hours but not the 1 a.m. to 6 a.m. shift because it was affecting his health. 15
According to Ding, Lin responded by asking if he would be willing to work one more big order
on December 14 and Ding declined (Tr. 62, 73-75).
Jiang testified that he was also informed on December 5 of the big order for December
14. Like Ding, Jiang had numerous meetings with the representatives from the Center regarding 20
his long hours and other employment issues with the Respondent. Jiang stated that he and Ding
informed the representatives at the Center in September that they would not do another big order
after feeling ill in completing the September order. Jiang said the representative informed them
that they could refuse to work overtime if the work is a hardship on their health (Tr. 83-85, 92).
25
Jiang telephoned Lin on the evening of December 5 and told her that he and Ding will not
work the big order because it affected their health. According to Jiang, Lin did not reply back
but did implore him to work the order one last time. Jiang refused and replied that he and Ding
had health issues working the long hours and their families were concerned over their wellbeing.
30
Jiang testified that he then called Ding and said he told Lin that they will not work the
extra hours on the big order. According to Jiang, Ding replied that “that’s fine” and that he will
do the same when he goes to work the next day. Jiang also told Ding that he will talk to a lawyer
at the Center the following day. Jiang stated that he was informed by an attorney at the Center
that he can make his own decision whether to work the big order (Tr. 85, 86; 94-96).35
Lin testified that she was informed by Ding in the company van on December 6 that he
would not work the 36-hour shift on the big order. Lin said that Ding told her that the long hours
made him sick (Tr. 29). Lin said that she communicated to the owners that Ding and Jiang
would not work the big order. Lin conveyed the message that both workers stated that their 40
health would be affected by working the long hours (Tr. 31, 32).
The DISCHARGE OF DING AND JIANG
On the afternoon of December 7, Ding was called into a meeting with Lin. Lin pleaded 45
with Ding to work the big order and Ding said he would not work the early morning (1 a.m.-6
JD(NY)-14-18
5
a.m.) shift. Lin also asked Ding if his refusal to work was because the owners did not return
Ding’s deposit. Ding admitted that part of his reason for not working that shift, aside from his
health, was the refusal of the owners to refund his deposit. Ding also stated that he will continue
to work his normal hours. Ding also said that Lin threatened him that there would “be
consequences” if he did not work on the big order (Tr. 62, 63; 75, 76).5
On December 8, Ding received a call from Lin at home after returning from work. Ding
was informed by Lin to rest and not return to work if his health was affecting his ability to work.
Ding inquired as to when he could return to work and Lin was unresponsive. Ding testified that
he made several calls to Lin after December 8 and received the same answer, that she did not 10
know when he could return to work. Ding said the last time he called Yan about returning to
work was in early January 2018. Ding admitted that he did not contact the principal owners
about when he could return to work (Tr. 63, 64; 71-77).
On December 8, Jiang went to work and was asked again by Lin if he would work the big 15
order. Jiang replied in the negative. Like Ding, Jiang admitted that his refusal to work was also
because the owners refused to return his deposit (Tr. 100).
Jiang received a call from Lin after he returned home from work. Jiang was informed by
Lin that since work affected his health; the owners decided that he should just rest at home. 20
Jiang replied that his health issue was working the long shift and that he was capable of working
his normal hours. Nevertheless, Lin told Jiang to stay home. Jiang told Lin that the owners were
retaliating against him because he refused to work the 36-hour shift. Lin did not respond to his
comment. Jiang admitted that he was not threatened by Lin for refusing to work on the big order
(Tr. 96-99).25
Jiang testified that he was not told by Lin when he could return to work and decided to
contact Lin on December 13 as to when he could work again. Jiang also told Lin that he was still
owed outstanding wages. Lin replied that the employer will pay his wages within a week. Lin
also informed Jiang that she had not received any instructions from the owners as to when he 30
could work again. Jiang said he made a few more calls afterwards and received the same answer
from Lin (Tr. 86, 87).
Lin testified that she separately called Ding and Jiang in the evening of December 8 and
informed them not to return and that they should rest. Lin also told them that they should contact 35
her when they were ready to work after they rested (Tr. 31, 32). Lin denied that she was
contacted by Ding and Jiang about returning to work after December 8, but admitted that Ding
and Jiang did contact her about their outstanding wages (Tr. 45, 46; GC Exh. 3: affidavit of Yan
Lin).
40
Cao testified that he was informed by Lin that Ding and Jiang did not want to work the
big order. Cao denied that they had to continuously work for 36 hours. As noted above, Cao
stated that the workers may rest after 10 p.m. and resume working on the order at 1 a.m. to 6 a.m.
During the break time, the workers are permitted to rest and sleep. Cao denied that Ding and
Jiang were discharged and denied that they were threatened for not completing the big order. 45
Cao testified that he never told Lin to discharge Ding and Jiang. Cao testified that it would be
JD(NY)-14-18
6
difficult to fire them since he considered Ding and Jiang as partners in the restaurant. Cao also
denied knowing why Ding and Jiang never returned to work after December 8 since neither one
contacted him or the other owner after December 8. Cao asserted that Ding and Jiang most
likely refused to work after December because of their attempt to recover the deposits on their
failed investment in Matsuri Sushi that had closed in September (Tr. 118-121).9 5
DISCUSSION AND ANALYSIS
Credibility Assessment
10
The credibility resolutions herein have been derived from a review of the entire
testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the
witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). A
credibility determination may rely on a variety of factors, including the context of the witness’
testimony, the witness’ demeanor, the weight of the respective evidence, established or admitted 15
facts, inherent probabilities and reasonable inferences that may be drawn from the records as a
whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB
622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd.
sub nom. 56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all of all-or-
nothing propositions—indeed, nothing is more common in all kinds of judicial decisions than to 20
believe some, but not all, of a witness’ testimony. Daikichi Sushi, supra.
Legal Standard
The counsel for the General Counsel alleges that Liguo Ding and Jianming Jiang were 25
discharged on December 8 because they engaged in protected concerted activity when they told
Lin they would not work a 36-hour shift for health and safety reasons in violation of Section
8(a)(1) of the Act. The counsel for the Respondent maintains that Ding and Jiang were never
discharged and they never contacted the Respondent about returning to work after they were
allowed to rest after being informed of their health issues. 30
The complaint alleges that the Respondent interfered, restrained and coerced employees
in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of
the Act. Section 7 provides that, “employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives of their own 35
choosing, and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection . . . [Emphasis added].” See, Brighton Retail, Inc., 354 NLRB

9 I had allowed limited testimony solely for background information regarding another
restaurant also owned by Cao and Cheng. At the time, Cao and Cheng were principals in the
Matsu Corporation. The Respondent Matsu purchased a second restaurant named Matsuri Sushi.
Ding and Jiang were investors in Matsuri Sushi in August 2015, but the restaurant closed in
September 2017. Cao testified that Ding and Jiang argued with him and Cheng for the return of
their investment in the failed restaurant. Cao stated this was the reason for Ding and Jiang
refusing to work the big order on December 14 (Tr. 18; 105-109).
JD(NY)-14-18
7
441, 447 (2009). Section 8(a)(1) provides that it is an unfair labor practice to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. Discharging
and disciplining employees because they engaged in activity protected by Section 7 is a violation
of Section 8(a)(1).
5
Ding and Jiang Engaged in Protected Concerted Activity
In Meyers Industries (Meyers 1), 268 NLRB 493 (1984), and in Meyers Industries
(Meyers 11), 281 NLRB 882 (1986), the Board held that “concerted activities” protected by
Section 7 are those “engaged in with or on the authority of other employees, and not solely by 10
and on behalf of the employee himself.” The activities of a single employee in enlisting the
support of fellow employees in mutual aid and protection is as much concerted activity as is
ordinary group activity. Individual action is concerted so long as it is engaged in with the object
of initiating or inducing group action. Whittaker Corp., 289 NLRB 933 (1988); Mushroom
Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964). The object of inducing group 15
action need not be express. The Act also protects concerted activities for mutual aid or
protection regardless of whether a union is involved. Alton H. Piester, 353 NLRB 369, 371
(2008).
I find that Ding and Jiang engaged in protected concerted activity when they mutually 20
agreed after the September large catering order that they will not work another big order with a
36-hour work shift due to their health and the concerns of their family over their safety in
working long hours. Ding and Jiang were concerned for their health in working long hours with
the extra 1 a.m. to 6 a.m. shift added to their workday for the big order. Ding and Jiang had
multiple discussions and concerns over the 36-hour shift on their health and wellbeing and 25
elicited each other support before they separately confronted the Respondent about their work
shifts.10 Ding and Jiang also sought advice from the Center for the reasonableness of their
refusal to work before approaching Lin with their concerns. Yan Lin was informed by the
workers of their concerns and Ding and Jiang referred to each other when they separately
informed Lin that they would not work all the shifts for the big order. 30
Concerted activity includes not only activity that is engaged in with or on the authority of
other employees, but also activity where individual employees seek to initiate or to induce or to
prepare for group action, as well as individual employees bringing truly group complaints to the
attention of management. Fresh & Easy Neighborhood Market, 361 NLRB 151 (2014). Actions 35

10 While the complaint alleges that Ding and Jiang complained about their 36-hour work shift
on the day prior to and during the big order, the testimony from the hearing disputes the actual
time spent working inasmuch as the workers calculated their commute time in their hours
worked and the Respondent maintained that there were a 90-minute break and two 30-minute
meals as well as rest periods before the early morning 1 a.m. to 6 a.m. shift and at the end of that
shift and before the beginning of the 11 a.m. shift (Tr. 102, 103). Nevertheless, by anyone’s
calculations, the work hours before and during the day of the big order were arborous because
their hours included the 1 a.m. to 6:00 a.m. shift that affected the health of Ding and Jiang. I
agree with the counsel for the General Counsel that the actual hours work does not diminish the
merit of their claim and is irrelevant in assessing a violation of the Act by the Respondent.
JD(NY)-14-18
8
taken by the two workers were for mutual aid or protection and their refusal to work under
conditions affecting their health is an activity to “improve terms and conditions of employment
or to otherwise to improve their lot as employees.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565
(1978).
5
The Wright Line Analysis
In order to determine whether an adverse employment action violated the Act, the Board
applies the analysis articulated in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management 10
Corp., 462 U.S. 393 (1983). To establish unlawful discipline under Wright Line, the counsel for
the General Counsel must first prove, by a preponderance of the evidence, that the employee’s
protected concerted activities were a substantial or motivating factor in the employer’s decision
to take action against them. Manno Electric, Inc., 321 NLRB 278, 280 (1996). The General
Counsel makes a showing of discriminatory motivation by proving the employee’s protected 15
concerted activity, employer knowledge of that activity, and animus against the employee’s
protected conduct. Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999). Proof of an
employer’s motive can be based upon direct evidence or can be inferred from circumstantial
evidence, based on the record as a whole. Ronin Shipbuilding, 330 NLRB 464 (2000); Robert
Orr/Sysco Food Services, 343 NLRB 1183 (2004).20
To rebut the presumption established by the General Counsel, the Respondents bears the
burden of showing the same action would have taken place even in the absence of protected
conduct. See Manno Electric, Inc., 321 NLRB 278, 280 fn.12 (1996); Farmer Brothers, Co.,
303 NLRB 638, 649 (1991). To meet this burden “an employer cannot simply present a 25
legitimate reason for its action but must persuade by a preponderance of the evidence that the
same action would have taken place even in the absence of the protected conduct.” Roure
Bertrand Dupont, Inc., 271 NLRB 443 (1984); Durham School Services, L.P., 360 NLRB 694
(2014); DirecTV U.S. DirecTV Holdings, LLC, 359 NLRB 545, 560 fn. 18 (2013).
30
Discriminatory motive may be established in several ways including through statements
of animus directed to the employee or about the employee’s protected activities, Austal USA,
LLC, 356 NLRB 363, 363 ( 2010); the timing between discovery of the employee’s protected
activities and the discipline, Traction Wholesale Center Co. v. NLRB, 216 F.3d 92, 99 (D.C. Cir.
2000); evidence that the employer’s asserted reason for the employee’s discipline was 35
pretextual, such as disparate treatment of the employee, shifting explanations provided for the
adverse action, failure to investigate whether the employee engaged in the alleged misconduct,
or providing a nondiscriminatory explanation that defies logic or is clearly baseless, Lucky Cab
Co., 360 NLRB 271 (2014); ManorCare Health Services—Easton, 356 NLRB 202, 204 (2010);
Greco & Haines, Inc., 306 NLRB 634, 634 (1992); Wright Line, 251 NLRB at 1088 fn. 12, 40
citing Shattuck Denn Mining Co. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Cincinnati Truck
Center, 315 NLRB 554, 556–557 (1994), enfd. sub nom.; NLRB v. Transmart, Inc., 117 F.3d
1421 (6th Cir. 1997)).
I find that the counsel for the General Counsel has met his burden that the discharge of 45
Ding and Jiang was motivated by their protected concerted activity and that the Respondent
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failed to show that it would have taken the same action absent the protected activity of Ding and
Jiang.
Here, Ding and Jiang informed Lin that they would not work the long hours, but were
willing to continue working their normal hours. Lin then informed Cao and Cheng of their 5
refusal to work the big order. Instead of letting them work their regular shift and forego the 1
a.m. to 6 a.m. shift, the owners instructed Lin to tell them not to return to work after December 8.
This point is noteworthy since both Lin and Cao testified that they needed workers to complete
the big order and Lin actually asked Ding on December 7 if he would reconsider his decision not
to work. In addition, the restaurant was very busy during the December holiday month (as noted 10
by the counsel for the Respondent). If completing the big order was a priority, it is beyond my
understanding why Ding and Jiang could not work their normal shifts and have other workers
substitute for the 1 a.m.-6 a.m. shift. Clearly, the Respondent was upset that Ding and Jiang had
the temerity to refuse working the early morning shift. The Respondent showed its animus
towards their concerted activity when Lin told Ding there would “be consequences” if he did not 15
work on the big order.
I also find as pretext that the reason Ding and Jiang did not return to work was because
they never contacted the Respondent after December 8. The Respondent maintains that Ding
and Jiang were allowed to rest and recover from their health issues and that they should call 20
when they are able to work. Lin testified that neither worker contacted her to return to work
after December 8.
This is obviously inconsistent with the objective facts in the record. I credit the
testimony of Ding and Jiang that they told Lin they were always willing to work their normal 25
shifts but refused to work the 1 a.m.-6 a.m. shift during the big order. Ding and Jiang never
refused to totally stop working. Furthermore, I find it pretextual that Lin and Cao claimed that
the two workers never contacted them after December 8 to work.11 I credit the testimony of Ding
and Jiang that they did call after December 8 and Lin was unresponsive to their request to return
to work. Lin testified that Ding and Jiang were owed back wages when they had stopped 30
working on December 8. Lin stated that the Respondent subsequently paid the outstanding
wages of both workers. It is reasonable to conclude that when Ding and Jiang were paid their
back wages, both workers would have asked Lin when they could return to work.
Finally, and most damaging, is the fact that the Respondent admitted to the Board that the 35
two workers were indeed discharged for refusing to work. Lin stated in her Board affidavit that
Ding and Jiang were fired on December 8 (GC Exh. 3). Co-owner Marty Cheng also provided
an affidavit to the Board that stated under oath that Jiang and Ding refused to complete a large
catering order and “Because of their defiance, they were fired on or about December 8, 2017”
(GC Exh. 4).1240

11 It is irrelevant that neither Ding nor Jiang had asked the owners to return to work after
December 8. They made their requests to Lin, who as an agent of the Respondent, served as the
intermediary between the owners and the employees in all work related issues.
12 The counsel for the Respondent argues that Lin and Cheng were not fully familiar with the
English language and did not understand the statements in the affidavit that were prepared for
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10
Employees, under the Act, are privileged to seek to change their terms and conditions of
employment by concertedly requesting a change, concertedly protesting their employer’s failure
to grant a specific request or demand, and, ultimately, by engaging in a work stoppage or strike.
When employees engage in work stoppage, the stoppage must be complete. The employees must 5
withhold all their labor. “They cannot pick and chose the work they will do or when they will do
it.” Audubon Health Care Center, 268 NLRB 135, 137 (1983). They cannot decide for
themselves “which rules to follow and which to ignore.” Bird Engineering, 270 NLRB 1415, fn.
3 (1984).
10
However, it is well-settled that unrepresented employees may concertedly decline to
perform certain work they deem unsafe without being punished or discharged. NLRB v.
Washington Aluminum Co., 370 U.S. 9 (1962). In Sargent Electric Co., 237 NLRB 1545 (1978),
and Union Boiler Co., 213 NLRB 818 (1974), the employees refused to perform work due to
what they perceived, at the time of refusal, to be unsafe working conditions. The employees 15
were discharged for refusal to obey the order to perform the very work that was the subject of
their concerted protest. Here, Ding and Jiang refused to perform work that they perceived were
unsafe working conditions affecting their health. The employees had no option but to abandon
their protected concerted activity or risk termination. The Board, in those circumstances, found
that the concerted refusal to perform the work was protected activity and that termination for that 20
activity violated the Act.
The Respondent believes that the reason that Ding and Jiang refused to work was because
the owners did not return the money allegedly owed to them from an investment that went sour
and points to the fact that Ding and Jiang never refused to work the big orders in the past or 25
complained that past big orders had affected their health.
While there may be other factors, I find above that their discharges were clearly
motivated by their protected concerted activity in refusing to work the early shift and I need not
address the reasonableness of their concerted activity. In Tamara Foods Inc., 258 NLRB 1307, 30
1308 (1981), enfd. 692 F.2d 1171 (8th Cir. 1982), the Board stated that “[i]nquiry into the
objective reasonableness of employees’ concerted activity is neither necessary nor proper in
determining whether that activity is protected.” 258 NLRB at 1308. “Whether the protested
working condition was actually as objectionable as the employees believed it to be . . . is
irrelevant to whether their concerted activity is protected by the Act.” Id.; Odyssey Capital 35
Group, L.P., III, 337 NLRB 1110, 1111 (2002).

their sworn signatures. The Respondent further argues that the former attorney was not Chinese
speaking and could not translate so that Lin and Cheng would understand the contents of their
affidavits. While I could empathize to the language barrier, I find such arguments are without
merit. The previous attorney had an obligation and duty to represent his two clients and to refuse
their signatures unless Lin and Cheng fully understood their statements in the affidavits. The
attorney could have requested to reconvene the taking of the affidavits when a translator would
be available to explain the affidavits to Lin and Cheng.
JD(NY)-14-18
11
In any event, the Respondent admitted in its Board affidavits that Ding and Jiang were
discharged in refusing to work the big order. Accordingly, I find that the Respondent violated
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW5
1. At all material times, the Respondent, Matsu Corp., d/b/a Matsu Sushi, is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act on about December 8, 2017, by 10
discriminatorily terminating Liguo Ding and Jianming Jiang.
3. The unfair labor practices described above affect commerce within the meaning of Section
2(6) and (7) of the Act.
15
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, the Respondent having discriminatorily 20
discharged Liguo Ding and Jianming Jiang, I shall order the Respondent to offer Ding and Jiang
full reinstatement to their former positions or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any other employee emoluments,
rights or privileges previously enjoyed, and to make them whole for any loss of earnings suffered
as a result of the Respondent’s unlawful actions against them. Backpay shall be computed in 25
accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
In accordance with Don Chavas, LLC, d/b/a Tortillas Don Chavas, 361 NLRB 10130
(2014), my recommended order requires Respondent to compensate Liguo Ding and Jianming
Jiang for the adverse tax consequences, if any, of receiving a lump-sum backpay award and to
file with the Regional Director for Region 29 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. AdvoServ for New Jersey, 363 NLRB No. 143 (2016).35
In addition to the remedies ordered, I shall recommend that the Respondent compensate
Liguo Ding and Jianming Jiang for their search-for-work and interim employment expenses
regardless of whether those expenses exceed their interim earnings. King Soopers, Inc., 364
NLRB No. 93 (2016). Search for work and interim employment expenses shall be calculated 40
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).
It is further recommended that Respondent remove all references to the termination on 45
about December 8, 2017, from the files of Liguo Ding and Jianming Jiang and to notify them in
writing that it has done so and that the discharges will not be used against them in any way.
JD(NY)-14-18
12
My recommended order requires the Respondent to expunge from its files any and all
references to the unlawful termination of Liguo Ding and Jianming Jiang and any notes,
documents or references regarding their termination that were prepared and/or used in their
termination and to notify them in writing that this has been done and that the unlawful discharges5
will not be used against them in any way.
ORDER
On these findings of facts and conclusions of law and on the entire record, I issue the 10
following recommended13
The Respondent, Matsu Corp., d/b/a Matsu Sushi, its officers, agents, successors, and
assigns, shall
15
1. Cease and desist from
(a) Discharging, or otherwise discriminating against employees because they engaged in
protected concerted activities.
(b) In any like or related manner interfering with, restraining, or coercing employees in the 20
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) Make Liguo Ding and Jianming Jiang whole for any loss of earnings and other benefits, 25
including reimbursement for all search-for-work and interim-work expenses, regardless of
whether they received interim earnings in excess of these expenses, suffered as a result of the
unlawful discharges, as set forth in the remedy section of this decision.
(b) Compensate Ding and Jiang for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and to file with the Regional Director for Region 29 within 21 days of 30
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.
(c) Immediately offer full reinstatement to Ding and Jiang and if the offer is accepted,
reinstate Ding and Jiang to their former jobs or, if the jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any other rights or privileges 35
previously enjoyed.
(d) Within 14 days from the date of the Board’s Order, remove from its files any reference to
the unlawful discharge of Ding and Jiang on about December 8, 2017, and thereafter notify them
in writing that this has been done and that their discharges will not be used against them in any
way.40

13 If no exceptions are filed as provided by Sec. 102.46 If no exceptions are filed as provided by
Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions and recommended
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.
JD(NY)-14-18
13
(e) 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.
(f) 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 designated by the Board or its
agents, all payroll records, social security payment records, timecards, personnel records and 5
reports, and all other records, including an electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay. Absent exceptions as provided by Sec.
102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order
shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and due under the terms
of this Order.10
(g) Within 14 days after service by the Region, post at its existing property at the Westport,
restaurant, 33 Jessup Road, Westport, Connecticut, a copy of the attached notice in the English
and Chinese languages marked “Appendix.”14 Copies of the notice, on forms provided by the
Regional Director for Region 29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in 15
conspicuous 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 altered, defaced, or covered by 20
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 December 8, 2017.
(h) Mail a copy of said notice to Liguo Ding and Jianming Jiang at their last known 25
addresses.
(i) Within 21 days after service by the Region, file with the Regional Director for Region 29,
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.
30
Dated, Washington, D.C. October 26, 2018
35
Kenneth W. Chu
Administrative Law Judge
40

14 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 National 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.”
JD(NY)-14-18
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 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 benefits and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against you because you engage in protected
concerted or to discourage you from engaging in these or other concerted activities.
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 the Board’s Order, offer Liguo Ding and Jianming
Jiang full reinstatement to their former jobs or, if the jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Liguo Ding and Jianming Jiang whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim earnings, plus interest, including any pay
increases made to similarly situated employees from the date of their discharge date to the present,
and including reimbursement for all search-for-work and interim-work expenses, regardless of
whether they received interim earnings in excess of these expenses, or at all, during any given
quarter, or during the overall backpay period.
WE WILL compensate Liguo Ding and Jianming Jiang for the adverse tax consequences, if any, of
receiving a lump-sum backpay award.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files all references
to the unlawful discharge of Liguo Ding and Jianming Jiang.
WE WILL, within 3 days thereafter, notify Liguo Ding and Jianming Jiang in writing that this has
been done and that their discharge will not be used against them in any way.
JD(NY)-14-18
MATSU CORP., D/B/A MATSU SUSHI
(Employer)
Dated______________________By______________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
Region 29
Two Metro Center, 100 Myrtle Avenue, 5th Floor
Brooklyn, New York 11201
(718) 330-7713, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/01-CA-214272 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (718) 330-2862.