NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
East Buffet and Restaurant, Inc. and 318 Restaurant
Workers
July 31, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On April 3, 2007, Administrative Law Judge Steven Davis
issued the attached decision. The
Respondent filed exceptions, a supporting brief, and a reply brief. The General
Counsel and the
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, findings,1 and conclusions as modified2 and to adopt the recommended Order as modified.3
ORDER
The
National Labor Relations Board adopts the recommended Order of the administrative
law judge as
modified below and orders that the Respondent, East Buffet and Restaurant,
Inc.,
1.
Substitute the following for paragraph 1(c).
“(c) Directing its employees not to speak to co-workers while on duty, telling its employees that they had to eat in two groups and not together, and prohibiting its employees from making or receiving cell phone calls while on duty because of their union and other protected concerted activities.”
2.
Substitute the following for paragraph 2(d).
“(d)
Within 14 days from the date of the Board’s Order, offer full reinstatement,
to the extent that it has not
already done so, to the following unfair labor practice strikers to their
former jobs or, if those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privileges
previously enjoyed, displacing if necessary, any replacements hired since April
24, 2006:
Hui
Ma Yu Zhen Wang
Yu
Chuan
Ping
Zhang Li Feng Liu
Ping
Yuan Wu Xiu Zhu Lin”
3.
Substitute the attached notice for that of the administrative law judge.
Dated,
Peter C. Schaumber, Chairman
Wilma
B. Liebman, Member
(seal) National
Labor Relations Board
APPENDIX
Notice to Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
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 benefit and protection
Choose not to engage in any of these protected activities.
We will not coercively question you about your letters of protest, or about your union or protected concerted activities.
We will not
threaten you with transfers to different assignments, threaten you with closure
of the restaurant, threaten that we will examine your immigration documentation
or tell you that it would be futile to join the
We will not direct you not to speak to your co-workers while on duty, tell you that you have to eat in two groups and not together, or prohibit you from making or receiving cell phone calls while on duty because of your union and other protected concerted activities.
We will not discharge
or otherwise discriminate against you for supporting 318 Restaurant Workers’
We will not fail or refuse to reinstate unfair labor practice strikers.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will, within 14 days from the date of this Order, offer David Lee full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
We will make David Lee whole, with interest, for any loss of earnings and other benefits suffered as a result of the discrimination against him.
We will within 14 days from the date of the Board’s Order, offer the following employees full reinstatement, to the extent that we have not already done so, to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, displacing if necessary, any replacements hired since April 24, 2006:
Hui Ma Yu Zhen Wang
Yu Chuan
Ping Zhang Li Feng Liu
Ping Yuan Wu Xiu Zhu Lin
We will make the above-named employees whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, less any net interim earnings, plus interest from April 24, 2006.
We will, within 14 days from the date of this Order, remove from our files any reference to the unlawful discharge of David Lee and the refusal to reinstate the above-named employees and we will, within 3 days thereafter, notify each of them in writing that this has been done and that the discriminatory actions will not be used against them in any way.
East Buffet and Restaurant, Inc.
Sharon Chau, Esq., for the General Counsel.
Lewis Goldberg, Esq., (Goldberg and
Weinberger LLP),
Yvonne Brown, Esq.,
DECISION
Statement of the Case
Steven Davis, Administrative Law Judge. Based upon charges filed by 318 Restaurant Workers’ Union (Union) in Case Nos. 29–CA–27114, 29–CA–27220, 29–CA–27368, and 29–CA–27724 on August 12 and October 20, 2005, and on January 13 and June 2, 2006, respectively, a complaint was issued on June 30, 2006 against East Buffet and Restaurant, Inc. (Respondent).[1]
The complaint alleges that the Respondent unlawfully discharged
David Lee and thereafter engaged in numerous violations of the Act because its
employees (a) protested the discharge (b) joined the
The Respondent’s answer denied the material allegations of
the complaint and on September 18–21 and October 18–20, 2006, a hearing was
held before me in
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by all parties, I make the following
Findings of Fact
i. jurisdiction
The Respondent, a domestic corporation having its office
and place of business at
ii. the alleged unfair labor practices
A. Background
The Respondent was opened in 1988 by its owners Sauman (Susan) Kong and her husband Kan Pat Kong. Their son, Kevin Kong, is the general manager.[2] The restaurant, which serves a Chinese food cuisine, employs two captains, James and Evelyn, a cashier/hostess and about 20 dining room employees, including waiters, waitresses and buspersons.[3] There is also a kitchen staff and one cleaning person who cleaned the bathrooms and washed the tables and floors. The restaurant is buffet-style with the customers being shown to a table by the hostess and then obtaining their food at various buffet tables.
Each member of the wait staff is assigned to certain tables.[4] They take special food orders, bring drinks, clear the tables of dirty dishes, and also bring the check to the table. Customers may pay their bill to the waiter or at the cashier’s desk. Kevin Kong stated that the waiter must keep his area clean, count the number of customers at the table and enter that amount in the computer, and ensure that customers pay their bills. Tables for the customers are designated by letter and number and are located in different sections of the restaurant. There is also an eleven table “party room” where customers can eat, and where the employees eat their meals.
Employees arrive at work at 11:00 a.m. at which time they prepare the restaurant for its opening to customers at 12:00 p.m. The restaurant is closed to new customers at 3:00 p.m., but of course customers who are still eating are permitted to stay. The restaurant reopens at 4:30 p.m. for dinner. New customers are denied entry at 9:00 p.m. on weekdays and 10:00 p.m. on Saturday and Sunday. On weekdays the restaurant closes at 10:00 p.m.
From Monday through Thursday, there are generally four waiters and three busgirls assigned to the dining room.[5] On Friday through Sunday, the busiest nights of the week, seven waiters and one part-time waiter, four busgirls, seven or eight busboys, two captains and two hostesses are present during dinner.[6] The busboys’ morning duties include sweeping and mopping the floor and making ice, but during dinner they assist the waiters by bringing drinks to customers’ tables and removing dirty dishes. The busgirls worked as dish transporters and also maintained and cleaned the buffet tables and surrounding floor area. They are not responsible for the tables assigned to the wait staff.
The employees eat their lunch and dinner meals at the restaurant with food provided by the Respondent. The lunch meal is usually taken at 3:00 p.m. and the dinner meal at 9:00 p.m. They eat their meals in two, fifteen-minute shifts, with some of them eating while others serve the customers. After eating their meals, the wait staff continues to serve their customers.
After the employees’ lunch meal they have much “side work”
to do including cutting vegetables and fruit. After the dinner meal they
continue to work cleaning the restaurant and returning food to the refrigerator
until about 10:00 p.m when the restaurant closes and they leave. The Respondent
provides vans which take a number of employees from their homes in Queens to
the restaurant in
B. The Captains
Prior to April, 2005, only one captain, James, was employed at the restaurant. In March or April, Evelyn, a former waitress, was appointed as an additional captain.[7] Kevin Kong stated that both captains have the same authority and responsibilities.[8] The captain reports to work each day arriving at 11:00 a.m. at which time he unlocks the restaurant door. At those times Kevin Kong may or may not be there. Kevin usually arrives at 3:00 or 4:00 p.m. three or four times per week. When the captain is at the restaurant alone with the waiters and buspersons, he has the highest authority of anyone in the restaurant. However, Kevin Kong stated that if any problem arose the captain contacted Kevin by phone. For example, when an employee came to work sick James called Kevin who told him to send the worker home. If a worker called in sick, James called Kevin who volunteered to try to find another employee. In addition, when an employee told James that he needed time off James asked Kevin since James has no authority to release the worker.
Kevin Kong stated that the captain’s duties included bartending and occasionally acting as cashier and host. He assigns waiters and busboys to the section of the restaurant in which they will work. In making such assignments he simply looks at the prior day’s assignment and rotates the employees to a different section than the one they worked in the day before. The skills of the employee played no part in the assignment. Kevin Kong told the captains to rotate the waiters and busboys among the various table sections. The captain also helps clear tables occasionally, helps clean food spills and obtains drinks for customers.
Mrs. Kong testified that new waiters are trained by the more senior waiters and not by the captain. Kevin Kong testified that the captains have no authority to hire, fire, discipline, or warn employees and no captain has disciplined or recommended the discipline of any worker. However, the captain notifies Kevin Kong if there is an altercation among employees, or if an employee is not working properly. In those instances Kevin Kong does an “independent investigation.” Kong cited two instances where James informed him that a waitress was not cleaning tables when customers were waiting and that a busboy was drinking beer on duty. Kong spoke to the employees in question and corrected their work performance.
The captain has no authority to send a worker home before the end of his shift because of a violation of the restaurant’s rules. He cannot assign overtime work, grant an employee’s request for time off, and does not direct the waiter’s routine duties. If overtime work is needed, James has no authority to authorize such work, and instead contacts Kevin. Written rules provide that the employees must listen to the instructions of the manager and the captain, and that “if anything happens the manager or the captain must be notified immediately so that they can take care of those matters.” In addition, another rule provides that any difficulty regarding a customer must be immediately reported by the wait staff to the captain so that he can resolve it. The wait staff was directed not to try to resolve the problem by themselves.
Kevin Kong stated that when the Kongs were not present, the captain has the authority to tell a busboy that a customer has left and the table should be cleaned, and if a customer has a complaint or needed to make a reservation James would handle those matters. However, the captain is expected to inform Kevin regarding matters which are “out of the ordinary.”
Employee Li Feng Liu testified as to the captain’s duties. He stated that when the workers arrive at work James or Kevin Kong posts a sheet of paper listing the table assignments of the wait staff for that day. Liu stated that the captain corrects errors made by the wait staff in customers’ bills. The wait staff reported any incidents that required reporting to the captains.
Kevin Kong’s basement office consists of an outer room containing linens, mints and tablecloths. The captain has the key to that office so that he can obtain those supplies as needed. However, the captain does not have the key to Kong’s inner office which contains personnel files. The captain also has a key to the cash register because he occasionally acts as cashier. In this respect, Kevin Kong stated that only management personnel, the captains or the cashier/host is permitted to touch the cash register. The captain may make changes in the computer such as correcting the number of customers at a table thereby changing a figure entered by a waiter. However, the captain cannot cancel a check but he can give a discount to a customer who complained of poor service. The latter instance never came to the attention of Kevin Kong. Captains share in the tips left by customers.
Kevin Kong stated that his parents were out of the country in May and June, 2005, and returned in mid July. He was away from the restaurant for the first half of July. During their absence, captains James and Evelyn worked in the restaurant, and Kevin’s brother Jim Kong acted as manager.
C. The Visit by the Department of Labor
Mrs. Kong testified that she first learned by letter received prior to March, 2005 that the Department of Labor (DOL) would be conducting an investigation of the Respondent. The letter advised that the DOL would be inquiring into the hours of work and pay rate of the Respondent’s employees. Mrs. Kong hired an attorney. In response to the investigation, the Respondent thereafter listed the number of hours worked on employee pay stubs.
The day before the visit by DOL agents in March, 2005, the employees were told by manager Kevin Kong and captain James that on the following day the DOL would visit the restaurant to “check on us.” The workers were instructed to wait outside the restaurant during the visit and not enter until they were called.
Employee Liu entered the restaurant at about 10:45 a.m. and was told by Susan Kong that the DOL agents were still present and that he should not come in.
Liu phoned David Lee and told him that since he was a documented worker he was entitled to enter the restaurant before being told to do so. Accordingly, Lee entered the restaurant at his usual work time, 11:00 a.m., because he did not believe that he was included in the exclusion order and because he wanted to meet the DOL agents, one of whom immediately waved him over upon his arrival. He approached the table where the agent was speaking to Mrs. Kong. The agent asked him his position, and when he said that he was a waiter, the agent asked him to be seated and asked Mrs. Kong to leave. Mr. and Mrs. Kong stood behind him nearby at the cashier’s desk. The agent asked how he was being paid, and Lee answered that his wages were partly in cash and partly by check. Lee asked the agent if he could ask a question and she gestured that he could call her and gave him business cards under the table.
After the agents left, Mrs. Kong told Lee that although he had been working in the restaurant for such a long time (one year) how could he have told the agent that he was paid in cash and by check? Lee answered that Mrs. Kong did not tell him how to answer the questions, and that if he said he was paid by cash or by check she would have found fault with those answers, so he just told the truth. Mrs. Kong told him that in the future the income of the wait staff “will be reported fully.”[9]
Shortly before 1:00 p.m. Liu received a phone call telling him to enter the restaurant and he did so immediately. About one hour later Lee gave him and employee Bi Chen business cards of the DOL agent, and told them that they could call the agent if they had any questions. Lee testified that he gave captain James a card, and Liu testified that when Lee distributed the cards Susan Kong and her husband were at a nearby table facing them.
Liu stated that that day he heard captain Raymond tell Kan
Pat Kong and also heard captain James tell Raymond essentially that Lee was
“playing games with us” by intentionally entering the restaurant during the DOL
visit when he was told not to. James did not testify. Mrs. Kong stated that he
was on his honeymoon in
D. The Requirement that the Wait Staff Pay Bills Unpaid by Customers
Prior to March, 2005, it was the Respondent’s policy to ask waiters to pay the bills of their customers who left the restaurant without paying. Kevin Kong testified that prior to March, 2005, if a customer failed to pay his check, he investigated the matter by asking the captains and the waiter what happened. If the customer did not pay the bill because of the inattentiveness of the waiter, he asked but did not require the waiter to pay the bill. All of the waiters who were asked to pay did so. If Kong concluded that the customer’s failure to pay was not the waiter’s fault, he did not ask him to pay. However, Liu testified to one instance in about early March, 2005 in which James told him that a customer left James’ table without paying but Kevin did not require him to pay the customer’s bill.
The employees were unhappy with this policy and following an instance in January or February, 2005 when Liu was asked to pay the check of his customer who left the restaurant without paying his bill, he met in mid to late March, 2005 with other members of the wait staff including Lee, Ma, Liu, Jenny, Bi Chen and Evelyn who was later promoted to captain. They discussed at lunch that it was unfair that they were required to pay such bills, adding that if they had to do so the money should come from the tip pool because management personnel share in that pool. They also discussed other terms of their employment that they believed were unfair.
Mrs. Kong testified that in response to advice from counsel, but following the visit by the DOL in March, 2005, she changed the Respondent’s policy concerning unpaid customer checks. She decided that rather than ask the waiters to pay for unpaid customer checks if it was deemed to be the waiter’s fault, they would thereafter give the waiter a written warning and not ask for payment of the unpaid bill. Susan Kong stated that she announced this new policy to the workers but it was not put in writing. Kevin Kong stated that prior to March, 2005, the Respondent did not have a policy of issuing written warning letters for any offense to employees. At the time of the change, Kong did not notify his captains or the employees that the policy had changed and that warning notices would be given instead of asking employees to pay the unpaid customers’ bills.
This change to written warnings was testified to by Lee. On April 20, 2005, Lee incorrectly gave a bill for a table of three to a table containing two patrons. That two-customer table erroneously paid the bill. Thus the two-customer table overpaid their bill. Lee testified that Kevin Kong asked him to pay that bill. Lee refused because the bill was not unpaid. Rather, Lee told Kong that there was no loss to the restaurant since the customer overpaid his bill. Lee further told Kong that he had discussed this matter with his co-workers and they decided not to pay for an unpaid customer’s bill, but that if Kong insisted, he would have to discuss the matter further with his fellow employees. Lee further told Kong that if the waiters had to pay such bills the captains should contribute to the payment because they share in the tips.
Kevin Kong testified that two days after this incident he told Lee to be more careful about his bills. Lee responded with a “very nasty attitude” saying “if you feel there’s a problem why don’t you just write me a warning letter.” Lee did so. The letter, written on April 22, stated that Lee’s work performance was “unsatisfactory, unprofessional and unacceptable.” The letter noted that he had made a similar error “a few times before.” The letter also stated that if there was no improvement in his performance the Respondent would consider terminating him. Kong testified that he did not ask Lee to pay because the customer was overcharged with no loss to the restaurant, and gave him a warning letter instead.
Counsel for the General Counsel argues that although this warning letter is not alleged as a violation of the Act, it demonstrated management’s hostility towards Lee because he refused Kevin Kong’s request that he pay the customer’s bill.
On April 22, 2005, Bi Chen received a written warning because her customers left without paying their bill. Kevin Kong stated that Chen admitted to him that the customers’ failure to pay was her fault. The letter threatened termination unless “immediate correction” occurred. Kevin Kong stated that he orally warned Chen for a similar offense prior to that but had no written record of that oral warning. The two letters to Lee and Chen, both written on April 22, were the first written warnings of any type issued by the Respondent.
On July 16, Lee received a written warning which stated that his work performance was “unsatisfactory” because customers at his table left without paying their bill. The letter noted that “this is your second and final warning. We expect immediate correction of the problem otherwise we shall have no alternative but [sic] consider the termination of your employment.” The letter advised that his immediate supervisor was available to answer questions about the letter and “help to improve your performance or correct the difficulties. . . . ”
Mrs. Kong testified that regarding this incident the table in question was empty for about 30 minutes and she was then told by Lee that the customer had not paid. She accused Lee of not being attentive to the table inasmuch as 30 minutes passed before he realized that the customers had not paid their bill. Lee explained that the patrons went to the bathroom and did not return. He was preoccupied for only about five minutes with helping other customers pay their bill at the cashier’s table and did not notice that they had left the restaurant without paying their bill. Mrs. Kong stated that if a waiter leaves his immediate area to go to the cashier he is still responsible for his table.
It should be noted that the Regional Director dismissed
the
E. The
Mr. and Mrs. Kong were out of the
Liu testified that in July, 2005, he discussed with Lee a DOL notice posted in the restaurant which set forth the legal minimum wage and overtime rates. Lee told him that the wait staff was not earning the legal minimum wage and that they should try to be compensated for their lost wages. Liu stated that captain Evelyn overheard them and asked if they were trying to “overthrow” the restaurant, noting that she did not believe that they would remain employed by the Respondent if they were not receiving the proper pay. Lee answered “yes” and walked away. Evelyn then told Liu that she would wait for Susan Kong to return to determine whether Lee would be discharged. Evelyn did not testify.
In mid July, 2005, Liu and Lee were told by employee Yu
Chuan Chu that the previous day he went to the
Liu stated that he told captain James that he visited the
The Respondent argues that Liu’s testimony that he told
James that he and Lee visited the
F. The Employees’ Request That They be Permitted to Take Food from the Buffet Tables
Liu testified that when the wait staff and busgirls ate their meals, they were not permitted to take food from the buffet tables used by the customers. Rather, the kitchen prepared two dishes which they ate. Liu noted, however, that other workers, including the kitchen employees and cooks, busboys, the hostess, cashier and captains took food from the buffet.
Liu stated that on about July 19, he and his co-workers including Lee were eating their meal together when Susan Kong walked past them. The co-workers agreed that Lee would speak in their behalf. Also present were Kan Pat Kong and Evelyn. Lee testified that he asked Mrs. Kong that the wait staff and busgirls be permitted to take food from the buffet for their dinner. She replied that they could only take such food when customers were no longer in the restaurant when it was about to close. Lee replied that the employees would not have enough time to eat at that time because customers did not leave until 9:30 p.m., and the workers had much work to do before the restaurant closed at 10:00 p.m. He noted that the managers, captains, busboys, cashiers and part of the kitchen staff were permitted to take food from the buffet at any time. Liu quoted Lee as telling Mrs. Kong that management did not respect them as “human beings.” Mrs. Kong then asked chef Tak who was also at the meeting to cook different types of food if the wait staff requested it so they would not get bored with what was given to them. Liu stated that Susan Kong said that the wait staff could follow these rules or eat at home, adding that beginning the following day, the wait staff dinner time would be 9:15 p.m. instead of 9:00.
Lee noticed Evelyn standing behind him when he spoke and noticed that a co-worker gestured to him that she was pointing at his head.[12] Liu stated that Evelyn stood behind Lee and pointed her finger at his head, saying softly that he (Lee) was a “shit stirring stick” which in the Chinese dialect means that he is a “troublemaker.”
Ping Yuan Wu testified that after the meeting Susan Kong drove her home during which Mrs. Kong told her that the three busgirls including her were good workers, but that Lee was old and it would not be easy for him to obtain employment outside the restaurant[13]—adding “how come he’s still stir up so much trouble in our restaurant, and complaining about the food, and not taste good, things like that?” [sic]
Susan Kong testified that she initiated the meeting while the employees were dining by asking them how they liked the food. She stated that she inquires of her employees more than once per month whether they liked the food because it was important that they are happy, which she believed would cause them to serve the customers in a pleasant way. Accordingly, she was “very happy” when they complained about the food that was available for them. Notwithstanding that Mrs. Kong stated that she welcomed such complaints, as set forth above Wu stated that during the ride home that night she criticized Lee for complaining about the food and causing trouble in the restaurant.
Mrs. Kong admitted that Lee and other employees complained that evening that they were tiring of the food the kitchen made for them, and asked why they could not eat from the buffet. She replied that they could eat from the buffet after 9:30 p.m. on weekdays, adding that they could also leave the restaurant to have their meals. That hour was selected because by that time most customers no longer took food from the buffet. She ordered chef Tak to make the food that the workers requested. Mrs. Kong did not recall whether anyone pointed to Lee’s head or called him an obscene name.
It should be noted, as set forth above, the employees who
attended this meeting visited the
G. The Discharge of Lee
1. The Events of Sunday, July 31
David Lee was employed as a waiter from March, 2004 to July 31, 2005.
Lee stated that on July 31 he was the only waiter assigned to his section whereas usually two waiters work in that area. At about 9:45 p.m. there were no customers in his section and he prepared to have his dinner. As he obtained a dish he heard a plate drop and break. He turned to see where the noise came from but did not see anything. In fact, a girl about 5 years old dropped a plate at the buffet table. Lee then “rushed” to clean his plate and “rushed” to eat. He encountered Susan Kong who said that “something was broken, why didn’t you take care of it?” Lee answered “where?” Mrs. Kong pointed to the area. Lee replied that someone was already cleaning it up, and anyway he had to “rush” to eat his meal, adding that he was the last worker to eat that night. He then went to eat his meal. Busgirl Zhang immediately picked up the plate and cleaned the area.
At hearing, Lee gave various reasons for not attending to the matter: (a) although he heard a plate break he did not see anything and had no idea “what was going on” (b) the broken plate was not in the direction he was going to obtain food for his meal (c) he had to have his meal and (d) it was not his job to clean a broken plate.
Susan Kong testified that she was seated, dining with her friend Melissa Chiu when she heard a plate break. She stood and noticed that the noise came from the ice cream machine area, and at the same time noticed a girl standing there who appeared frightened. Mrs. Kong turned around and saw Lee taking a plate from the buffet area. That evening, Lee was assigned to the “a,b,c” section which was one or two aisles away from where the plate dropped. Mrs. Kong did not see any other employees at that time. She then saw Lee look at the girl, and Mrs. Kong then sat down, believing that Lee would attend to the situation. After two or three seconds elapsed, Mrs. Kong saw Lee look away from the girl. Mrs. Kong stood, saw Lee leave the area, and she went to the girl. When Mrs. Kong arrived in the area she saw the girl attempt to pick up the broken plate. She told her not to touch it and the girl left the area. Mrs. Kong raised and waved her hand, a gesture meaning that she needed help.
Busgirl Ping Zhang[14] had just finished her dinner and was walking near that area. She immediately picked up the plate and cleaned its contents from the floor. She saw no one next to the plate. She stated that she picked up the plate without being asked to do so because she was responsible for that area. She did so quickly because she was anxious to go home. She did not notice whether any busboys were in the area.
Mrs. Kong testified that she approached Lee who was returning from washing his plate, and asked him why he did not help the girl. At that time, Zhang was still cleaning the plate. Lee replied that “someone will do it.” Mrs. Kong answered that there was no one there at that time. In this respect her testimony is suspect since she later testified that someone was cleaning the plate before she approached Lee. Lee responded that he had to eat his dinner before all the food was gone. Mrs. Kong returned to her seat, resumed her dinner and Lee went to the party room to eat his meal. Melissa Chiu, a friend of Mrs. Kong who dined with her that night and who followed Mrs. Kong to the scene of the broken plate because she was “nosy” corroborated Mrs. Kong’s testimony regarding her warning to the girl and her conversation with Lee. Curiously, Chiu denied that the plate was being cleaned while Mrs. Kong spoke with Lee although Mrs. Kong said the plate was being cleaned at that time.
Chiu testified that the conversation between Lee and Mrs. Kong took place in the Mandarin dialect. Mrs. Kong stated that Lee spoke in Cantonese, and that she spoke in either Mandarin, Cantonese or both. Other employees stated that they both spoke in Cantonese.
Within the next thirty minutes, Mrs. Kong thought about the incident and concluded that Lee’s actions were irresponsible. She was concerned about the girl’s safety in attempting to pick up the plate and was offended by Lee’s attitude in ignoring that patron, telling Mrs. Kong that someone would take care of it and that he had to eat, and not accepting responsibility for his wrongdoing. She conceded that ordinarily two waiters are assigned to the “a,b,c” section on a Sunday night and did not know why Lee did not take his break earlier, but only saw him in the area and thus blamed him for not going to the girl’s aid. She emphasized that she did not expect Lee to pick up the plate or clean the floor, but to stand by the girl and call someone to clean the area. Mrs. Kong stated that a waiter’s first responsibility is to serve the customer and ensure her safety.
Mrs. Kong stated that in deciding whether to fire Lee, she considered the fact that she had previously orally warned Lee about customer complaints, and that he had prior written warnings.[15] In this regard, Mrs. Kong testified that prior to March, 2005, she received a number of complaints from customers about Lee’s service. For example, she received more than two complaints that Lee spoke with customers he liked and ignored other customers, disregarding their requests for more beverages. She also received two or more additional complaints that if the customer left a poor tip or no tip, Lee would not provide good service when they returned to the restaurant.[16] Mrs. Kong orally reprimanded Lee for such complaints. His excuse was that he was busy. She did not make a written record of the complaints or her reprimands, but she stated that she told two or three employees, without naming Lee, that she did not want such practices to continue. She did not recall who she spoke to.
Kevin Kong also testified that he received more than five customer complaints about Lee’s service which constituted slightly more complaints about him than he received concerning the service of other waiters. Such complaints included that he was absent when the customer was ready to pay his bill. Kong stated that he orally warned Lee at least once when he received a complaint but did not make a written record of any of those oral warnings. Kong also stated that Lee had trouble reading customer bills but that did not result in any unpaid bills or bills delivered to the wrong table. Lee testified that he was never told that customers complained about his service, and he does not believe that he was orally warned about any customer complaints.
Shortly after the incident on July 31, Mrs. Kong told Kevin Kong what happened and said she wanted to terminate Lee, and also told captain James to advise Lee that he was discharged.[17]] James told Lee that Mrs. Kong said that he could finish his meal and not return to work the next day. Li Feng Liu stated that he was eating with Lee at that time and heard James tell him that Mrs. Kong said that Lee did not help clean the broken plate and he was fired. Lee then asked Mrs. Kong why she fired him. She said that something was broken and he was irresponsible in not attending to it. Lee replied that he had to rush to have his meal and someone was already cleaning it up.
Employee Liu heard the plate drop. He took a brief look and saw the girl, who appeared to be frightened, stand there “a very short moment. After the plate was dropped on the ground and it seems she quickly walk away.” The implication of his testimony was that he did not see her attempting to pick up the plate before she left the area, and he did not see Mrs. Kong approach or speak to her. Liu saw the girl drop the plate, stand at the scene a moment and then leave. This is supported by Mrs. Kong’s testimony that when she heard the plate break she stood up, looked, and then sat down. She then got up and walked over to the area. Clearly, in that period of time, if Liu is credited, the girl would have left the area before Mrs. Kong arrived at the scene.
Liu stated that he pretended not to have seen the incident but believed that Susan Kong saw him as he was walking in her direction. He proceeded to the kitchen to obtain some food for his meal. He believed that the matter was not his responsibility since cleaning a dropped plate was the responsibility of the busboy (and in fact he saw two busboys in the area at that time, but no other waiters other than Lee) or the cleaning person, and anyway he was late for his meal, which was usually at 9:00 p.m.[18] The Respondent argues that his testimony about the presence of the busboys is not credible since Liu also stated that generally the busboys leave the dining room at 9:30 p.m. to change their clothes and prepare to leave the restaurant. He explained, however, that after changing they resume their service in the dining room awaiting the “last call” which is the final opportunity for customers to obtain food from the buffet.
On his way out of the kitchen Liu overheard Susan Kong ask Lee in a “very loud and very rude” voice why he did not clean up the area with the broken plate to which Lee responded that it was not his job and he was on his way to have his dinner. At that moment, Liu saw a busgirl cleaning up the broken plate. Liu denied seeing Melissa Chu standing behind Mrs. Kong when Mrs. Kong spoke to Lee.
Ping Yuan Wu testified that when she heard the plate drop she saw Lee on his way to wash his plate. She did not stop what she was doing which was cleaning the salad bar. She heard Susan Kong say “David, the plate just dropped right there, how come you didn’t come to clean it up?” Lee replied that he was not in the immediate area and only heard the noise and had to eat his dinner. During that conversation, Wu noticed that busgirl Zhang was cleaning up the broken plate.
Thus all of the General Counsel’s witnesses testified that
Mrs. Kong criticized Lee for not cleaning the broken plate and did not mention his alleged failure to protect
the customer from harm. Lee said that when he asked Mrs. Kong why he was fired
she only mentioned the fact that he did not clean up the broken plate. No
mention was made of the child.
An incident report
written by Kevin Kong and dated July 31 stated the following:
A customer (who appeared to be 5 or 6 years old) dropped and shattered a plate in David’s section of charge. Rather than protect the customer from the broken plate, David simply looked and walked away. When asked why he did not help the customer, David replied that someone else would have helped the customer. When it was pointed out to him that nobody else was around to see the incident, David said that should he stay and help the customer, there may not have been enough food left for him for his dinner meal.
Due to his lack of responsibility and concern for the customer, and a record of prior incidences, David was terminated from his position.
Mrs. Kong testified that at the time she decided to
discharge Lee she had no knowledge that he engaged in any activities in behalf
of the
Mrs. Kong testified that she terminated more than ten employees from the time the restaurant opened in 1998 to July 31, 2005. The reasons for such discharges included laziness, stealing tips, and being impolite to customers. Kevin Kong testified that he has fired workers before and after Lee was discharged because they were not skilled enough to do the work, and because they were not working effectively. However, he could not recall a specific instance of such a discharge. Significantly, no explanation was given for the failure to discharge Lee for similar instances of misconduct prior to July 31.
Kevin Kong testified that at the time of Lee’s discharge
he was not aware that any employees had engaged in any union activity, nor was
he aware that Lee had signed a card for the Union or whether any employees met
with the
At hearing, Lee conceded that a patron could be hurt if a
broken plate remained on the floor. However, since he did not see it and did
not know what happened he did not investigate to see what the problem was. He
stated that customers frequently drop plates in the restaurant, but it is the
responsibility of the busboys or the cleaning person to pick up the plate and
clean the area. On July 31, he did not do so because two busboys were in the
immediate area, he was late for dinner and thereafter had to finish his work
and go home. He testified that he does not have to ask a busboy to do such work
because he knows his job, and that if he is the only person in the area he
would report the spill and ask a busboy to clean the area. Yu Chuan Chu
testified that although a broken plate may cause a dangerous condition it was
not the wait staff’s responsibility to make sure that the area was cleaned or
the dangerous condition rectified.
Kevin Kong stated that it is the waiter’s job to make sure his assigned area was clean by picking up food debris or spills on the floor or at their tables or adjacent to the tables they are assigned. He noted that the waiters have the authority to ask a busboy or the cleaning person to help them. Kong added that he did not expect the waiter to do heavy cleaning or scrubbing, but did expect him to pick up dropped food. After doing so the waiter is expected to clean his hands. Kong has instructed waiters to clean the area to which they were assigned before and after the Union petition was filed on August 4, 2005.
2. The Meeting
Immediately after Lee’s discharge Mrs. Kong asked James to assemble all the workers for a meeting. Liu said that Kan Pat Kong was also there. Mrs. Kong stated that her purpose in meeting was to explain why she fired Lee so that the mistake he made would not be repeated. Lee was present for only the first part of the meeting which continued for about 1½ hours.
Such a meeting was unprecedented in that no employee meeting was held when any of the ten or more workers were terminated prior to July 31 for laziness, stealing or impoliteness because, as stated by Mrs. Kong, it was obvious that workers cannot engage in such conduct. Mrs. Kong stated that she held the meeting upon Lee’s discharge because she wanted to emphasize the waiters’ responsibility for customer safety, impressing upon them that they should not leave broken plates on the floor and that she did not want this to occur again. Another reason for her holding the meeting was that she heard employees speaking among themselves, angrily opposing her decision to fire Lee. In the past no one questioned her decision to fire a worker and the fact that her employees were upset regarding Lee’s termination played a “big role” in her decision to have the meeting and explain why she fired Lee and in consideration for her employees’ feelings on the matter.
Mrs. Kong testified that she told the workers that Lee saw the child who broke the plate but was not willing to help her. She explained that she did not expect him to clean up the plate, just to stand with the customer to protect her and prevent her from touching the broken plate. She accused Lee of irresponsibility in ignoring the situation and saying that it was not his job. Kevin Kong quoted his mother as saying that the waiter’s highest priority is the safety of the customers, and that instead of helping the girl he walked away and went to get his dinner.
A number of the employees argued that Lee was a good
worker who assisted his customers, and that his discharge was unfair and that
he should be reinstated. Mrs. Kong testified however, that some employees said
that he was “unlucky” because Mrs. Kong saw him ignoring the girl.[19] Susan Kong insisted that he was irresponsible,
and that he had already received two warning letters—one for refusing to pay an
unpaid bill, and therefore she could no longer keep him in the Respondent’s
employ.
Liu testified that Mrs. Kong asked that Lee return the following day to explain to her what happened. Mrs. Kong, however, testified that since her main purpose in meeting was to emphasize that such misconduct should not happen again and because some employees said that Lee was a good worker, she told those assembled that if Lee apologized for his conduct and promised not to repeat it, she would consider reinstating him. At hearing, Mrs. Kong stated that she told the employees to tell Lee to call her. Kevin Kong stated that his mother said that she would consider reinstating Lee if he came to her and apologized for his actions. Liu stated that at the end of the meeting, Susan Kong agreed to have Lee return the following day to explain to her what had happened, and then return to work. He did not hear Mrs. Kong say that Lee had to call her, and did not recall her require that Lee apologize.
The testimony of Mrs. Kong and her son are contradicted by James’ actions in telling Lee later that night that he spoke to Mrs. Kong and she directed that Lee not return to work. Even if Mrs. Kong expressed a wish that Lee speak to her the following day, such an alleged desire was not sincere since captain James told Lee later that night that Mrs. Kong did not want him to return to work.
Lee testified that at the meeting he told Mrs. Kong that if he actually saw the broken plate he would attend to it, but since he did not know what happened on the other side of the buffet he did not. Lee quoted Jenny as telling Mrs. Kong that he always attends to the needs of the patrons. Lee left the meeting before it ended, and was called later that night by his co-workers and told that he could return to work the next day. However, Lee later testified that after he left the meeting he remained in the parking lot and was told by his fellow employees that Mrs. Kong expected him to contact her the following day.
Later however, captain James called Lee at home and told him that he had spoken to Mrs. Kong, and Lee could not return to work. Lee protested that his co-workers told him that he was supposed to meet with Mrs. Kong the following day. James called later and said he spoke to Mrs. Kong who said that he could not return to work the next day. Lee replied that Liu said that Mrs. Kong agreed that Lee could meet with her the following day and explain what happened.
3. The Events of August 1
Lee returned to the restaurant the following morning, August 1. Kevin Kong told him that he need not have come back to work since his mother fired him the previous evening. Lee asked for a letter of discharge and was told that, on advice of counsel, a letter need not be given.
Lee later testified that Kong refused to permit him to work, telling him that "‘you claim your brothers and sisters told you to come back to work. In fact, this restaurant doesn’t belong to your brothers and sisters. . . .” From the parking lot Lee phoned the restaurant, telling James that he was told by Liu that at the meeting the prior night it was agreed that he could return to work, but he was not permitted to do so. Accordingly, he told James that he wanted to speak to Mrs. Kong. James gave Lee her phone number. Lee stated that he called Mrs. Kong at 11:30 a.m. and left a message with his name and phone number. No one returned his message. Lee called four or five times thereafter, each time leaving a message but he received no return call.
Lee’s co-workers Bi Chen, Lin, and Liu arrived at work that morning and told Kevin Kong that Mrs. Kong said she would reinstate Lee, and they said they would protest the denial of his reinstatement saying that they feared that they could also be discharged at any time without an explanation. They protested by sitting down first in the dining room, and then leaving and sitting down outside the restaurant in the parking lot. Liu testified that Kevin told them that if they did not return to work immediately they would be fired. Lee first testified that Kong told them that if they did not return to work immediately they were fired, but then testified that he said that if they did not return he would consider that they quit. Lee added that the workers then said that they are not refusing to work “just sitting down to demand an answer.” Shortly thereafter, Kevin Kong, accompanied by the cook, asked them if they wanted to work. They decided to return to work and walked inside at about 11:40 a.m.
Kevin Kong testified that he saw Lee arrive at 11:00 a.m.
with waiters
Kevin further stated that the other waiters told him that if he did not reinstate Lee they would quit. Kong said that if they quit he would be unable to do anything about it, denying that he threatened them with discharge if they did not return to work. That testimony is corroborated by Lee, set forth above. They all left the restaurant and went into the parking lot. Kong went outside and asked what they wanted. They said they wanted Lee reinstated. Kong said that his mother did not say that she would reinstate Lee and he could not overrule that decision. The waiters other than Lee then returned to work at about 11:30 a.m.
Mrs. Kong testified that Kevin told her that Lee came to the restaurant and said that his “brotherhood” told him to return to work. Mrs. Kong told Kevin that she told his co-workers that he “had to call me” to apologize and she would then reinstate him, and if he did not she would not reinstate him. She did not consider Lee’s statement that his “brotherhood” told him to return as an apology, and refused to reinstate him. I note, however, that even before Lee’s return to the restaurant the next day he was told by captain James that Mrs. Kong did not want him to come back to work. In addition, upon his arrival, Kevin Kong told Lee that his mother did not want to reinstate him. Accordingly, I cannot credit Mrs. Kong’s testimony that Lee’s apology would have caused Mrs. Kong to reinstate him.
H. The Letter of Protest and the Events of August 2 and 3
The workers prepared a “letter of protest” which Liu and
The letter said, essentially, that all the waiters protested the firing of Lee, adding that they were also protesting the Respondent’s “unreasonable, unfair and unlawful” practice of requiring them to pay bills unpaid by customers. The letter noted that three months before, Lee protested this practice “for all of us” and that the Respondent at that time began a “series of warning measures and procedures” pursuant to which he was picked on and suffered “retaliation” until his discharge. According to the letter, such discipline included warning letters given to Lee on April 20 and in July because his customers failed to pay their bills. The letter noted that “under the leadership of David Lee the entire wait staff met with Susan Kong to ask” that they be permitted to take their meals from the buffet, which it termed the “most basic benefit for us.” Finally, the letter stated the workers’ belief that Lee was discharged for “fighting” for the security of the workers, and not because of the “so-called reason” that he did not attend to the girl who dropped the plate. The letter concluded that the workers do not feel secure and have no job security. It was signed by employees including Yu Zhen Wang, Liu, Jenny, Bi Chen, Lee, Yu Chuan Chu, Ping Zhang, Hui Ma, Liu, and busboys Eloy Hernandez and Raul.[20]
Mrs. Kong conceded that after receiving the letter she initiated and held separate, private conversations with her workers that day and the next day. She testified that she spoke to her workers, first to explain why she fired Lee, and then to ask them whether she should reinstate him. At hearing, she stated that she had been on vacation from late May to July 10 and was therefore was not familiar with the restaurant’s operation or Lee’s performance during that time. She therefore wanted to learn what was happening in the restaurant during her absence and if anything was “wrong.” Mrs. Kong stated that this was the first time she received a protest letter following the discharge of a worker. She believed that perhaps she did something wrong and wanted to find out more about it.
She asked her employees if she should reinstate Lee. She
first stated that in the past she asked her employees what they would do if
they were her, but later denied asking them that question. According to Mrs.
Kong, all the employees except Wang, Ping Yuan Wu and
Mrs. Kong asked the workers during their meetings whether Lee was performing his job well when she was away. She quoted Ping Zhang as saying that occasionally he was lazy and that she would not reinstate him. Zhang denied making those comments to her.[21]
The employees’ versions of those meetings follow:
Liu testified that Susan Kong asked him who wrote the letter of protest. Liu answered that the identity of the person who wrote it “does not matter as long as the letter is factual.” Kan Pat Kong who was at the meeting told Liu that when captain Raymond left the restaurant he intended to promote Liu to his position but instead promoted Evelyn because she had been employed longer. Liu directed the conversation back to the letter and said that these are our “ground rules”—the Respondent should not have fired Lee for such a “minor” reason. Liu argued that Lee was not irresponsible and had been employed by the Respondent for more than one year and no one complained that he was irresponsible. He cited a case involving Evelyn’s alleged irresponsibility. Liu told Susan Kong that Lee’s firing made the workers feel “very insecure” because if Lee could be fired for that reason they feared that they would be similarly treated.
Ping Yuan Wu testified that on August 2, Mrs. Kong said that she had heard from Kevin that Wu signed the protest letter. Wu admitting signing the letter. Kong asked that they speak as friends and asked for her opinion of the decision to fire Lee. Wu answered that the decision was wrong since the patron dropped the plate and Lee was not nearby. She cited an instance where Lee helped a child who burned his hands, and said that his customers liked him. Kong replied that Lee was old, someone accused him of stealing tips and captain Raymond had once suggested that she fire him but she “still gave him a chance” but now regretted not discharging him earlier. Wu called Kong’s complaints about Lee “minor” and asked that he be reinstated.
Wu further testified that she asked Mrs. Kong whether she asked Lee to return to work the previous day, and Mrs. Kong replied that Lee told James that his brothers and sisters wanted him to return to work “and because of that… I just don’t want him to come back.”
Kong then said that she did not want Lee to return to work “because once he’s back, there would be more troubles,” adding that since her son Kevin was an adult he could easily obtain employment elsewhere and she could “just close down this business.” She also said that even if she had to close the restaurant she would not allow Lee to return to work.
Zhang was asked by Mrs. Kong why she signed the protest letter. Zhang replied that she signed in order to protest the discharge of Lee. Mrs. Kong told her that Raymond wanted to fire Lee prior to this incident but she did not because Lee was old and she believed that she would just keep him employed. Susan Kong asked what she thought of Lee as a worker and Zhang responded that employees are sometimes good and sometimes make mistakes. Zhang testified that Mrs. Kong also told her that Lee “stirred up” many things including complaining about meals for the staff and by addressing the boss at that time.
On August 3, Lee and Yu Chuan Chu signed cards applying
for membership in the
I. The Events of August 4 through August 8
On August 4, the
During the lunch hour, a meeting was held with waiters
Liu,
Liu testified that Mrs. Kong asked the same question – why
did they join the
Liu testified that Susan Kong told them, “you guys were
planning to organize a union. We will absolutely disagree for you guys to do
that.” Chu asked what was wrong with a union, adding that unions are
“everywhere” in the
Yu Chuan Chu testified that Susan Kong opened the meeting
by saying that she received a Union letter, asking “why did you join the
Mrs. Kong testified that prior to the company’s receipt of
the petition on August 5, she was not aware that the employees sought to join a
union, nor did she know which workers supported the union. She described the
meeting that afternoon. It began with Kevin Kong speaking to Liu. She joined
the conversation and soon more employees participated in the discussion at
their lunch break. The main point was the demand for Lee’s reinstatement, with
some employees saying that if he was not reinstated she will be sued and get in
trouble. Mrs. Kong accused those workers of threatening her and stated that she
would rather close the restaurant than rehire Lee because it would be “totally
destroyed.” Mrs. Kong denied that there was any mention of the
Susan Kong denied hearing Kevin or her husband ask the
workers if they joined the
Kevin Kong similarly denied saying and did not hear his
mother say that it would be futile to join the union. He also denied that any
management official said that the Respondent would have to obtain documentation
of legal immigration status if the
Mrs. Kong conceded calling several employees, including Ping Yuan Wu, Chang Ping and Wang into her basement office where she held individual meetings with them. Mrs. Kong explained that since she was absent from the restaurant for two months she tried to learn if there was something wrong or whether something happened while she was away. Wu told her that everything was all right. She asked Wu what she thought of her (Mrs. Kong) “because since the petition, that lot of people want to join a union, I was wondering, is maybe something wrong with me?” She also asked Wu if there was anything wrong in the restaurant. Wu replied that nothing was wrong.
Yu Zhen Wang testified that she was asked to report to
Susan Kong’s office where they met alone. Kong asked her if she signed the
protest letter and if so why she signed. Wang answered that she signed the
letter so that Lee would be reinstated. Mrs. Kong asked her what Lee was like
“as a person” and Wang answered that many customers liked his service. Mrs.
Kong then asked Wang if she joined the