The Mandarin

930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M Restaurants, Incorporated, d/b/a The Mandarin and San Francisco Local Joint Executive Board of Culinary Workers, Bartenders, Hotel, Motel and Club Service Workers, Hotel and Restaurant Employees and Bartenders International Union. Case 20-CA-9552 March 21, 1977 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On October 31, 1975, the National Labor Relations Board issued its Decision and Order in this case,' modifying the Administrative Law Judge's recom- mended Order in certain respects, but adopting his recommendation that M Restaurants, Incorporated, d/b/a The Mandarin, herein called Respondent, make employee Billie Meng whole for any loss of earnings suffered by reason of his discharge in violation of Section 8(a)(3) and (1) of the Act, and offer him immediate and full reinstatement to his former position or, if that position no longer existed, to a substantially equivalent one. On June 4, 1976, after having failed to reach agreement with Respondent on Meng's reinstate- ment, the Regional Director for Region 20 issued a notice of hearing alleging that Respondent had not made a valid offer of reinstatement to Meng, and that the issue to be resolved by the hearing was: Whether or not the letter discriminatee Meng wrote and, on March 29, 1975, distributed to Respondent's employees, contain [sic I statements making him unsuitable for reinstatement and therefore ending his backpay period. Thereafter, by dates of August 20 and September 1 and 2, 1976, respectively, Respondent, Charging Party San Francisco Local Joint Executive Board of Culinary Workers, Bartenders, Hotel, Motel and Club Service Workers, Hotel and Restaurant Em- ployees and Bartenders International Union, herein called the Union, and counsel for General Counsel executed a motion to transfer proceedings to the Board and a stipulation of facts, waived a hearing before an Administrative Law Judge and the issuance of an Administrative Law Judge's decision, and submitted the case to the National Labor Relations Board for findings of fact, conclusions of law, and an 221 NLRB264 x The Administrative Law Judge found that Respondent's "suspension" of Meng was, in fact, a discharge. 228 NLRB No. 110 Order based on a record consisting of the stipulation of facts and the exhibits attached thereto. On November 5, 1976, the Board granted the parties' motion, approved the stipulation of facts, ordered the proceedings be transferred to the Board, and granted permission and time for the filing of briefs. Thereafter, the General Counsel and Respon- dent filed supplemental briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the basis of the stipulation of facts, the briefs, and the entire record in this proceeding, the Board makes the following findings. Facts On March 10, 1975, Administrative Law Judge Jerrold H. Shapiro issued a Decision in this proceed- ing finding, inter a1ia, that Respondent had violated Section 8(a)(3) of the Act on September 11, 1974, by discharging Billie Meng2 because of his activities on behalf of the Union and had independently violated Section,8(a)(1) of the Act since the discharge was also in retaliation for certain protected concerted activi- ties undertaken by Meng. The Administrative Law Judge's Decision on the issue of Meng's discharge was ultimately affirmed by the Board, as noted above, but the incidents which form the basis for the instant proceeding were not then before the Board. Specifically, on March 29, 1975, some 2-1/2 weeks after the Administrative Law Judge's Decision here- in, at approximately 4 p.m., discriminatee Meng distributed to each of Respondent 's employees, on Respondent's premises, a single sheet of paper on both sides of which was written a message in Chinese characters. Discriminatee Meng admits that he com- posed and distributed the letter. After reading that letter, Linsan Chien, Respon- dent's restaurant manager and corporate secretary, "discharged" Meng on May 12, 1975.3 The letter, as translated by Chien, reads as follows: Dear Brethren and Sisters: Last week the court announced its verdict (see March 21st S. F. Chronicle, page 2). Its main points are as follows: 1. Illegal firing of Billy Meng 2. The salary raise of those who work in the kitchen and in the front was aimed at sabotaging the union movement and was no mere coincidence. 3 As noted, Respondent's earlier discharge of Meng had been termed a "suspension" by Respondent but the Administrative Law Judge found the earlier action was, in fact, a discharge. THE MANDARIN 931 3. Illegally hinting to the employees that the union movement is under the surveil- lance (of the Management). Orders the restaurant to "welcome back" Billy Meng immediately and compensate for all his losses. "Old-man Chien" of the Mandarin is like a big ,fish swimming in a small pond:" "pompous" and "arrogant." In fact he is nothing but a small mean person exploited by his Jewish boss to oppress his own countryman. He thought he had money and power and behaves like Napoleon. (In some aspects, he is worse than Napoleon.) He thought he could lie his way through court as he did in last union movement. Little he knew that things didn't turn out as he expected. When the Judge punc- tured his lies and repeatedly reprimanded him, too bad Old-man Chien couldn't see his own mean miserable conditions of "blushing in shame" and "not knowing what to say." In the twenty pages long verdict, almost every page has pointed out that Old-man Chien lied in court. Truly he is thick-skin to the end. We wonder whether this direct blow from the court on him would be able to wake him up from his "fantasies" or not. To this verdict, Old-man Chien is using the same strategy "of the total of thirty-six strategies in the world, delay is the best strategy": the same trick he employed in dealing with our voting to join the union issue. Little he realized that this is like "drinking poison to stop one's thirst " When he can no longer stall, he will be "finished off' and "dead as a door-knob." As regarding the other three union members who were fired, the NLRB refused to accept the charge due to insufficient evidences. We will of course support them to the end. This case is now under appeal, we expect to give you a report soon. Seeing how Old-man Chien used the loopholes of law to stall for time and the decision handed down by the NLRB with regard to the three union members, we clearly realize that we cannot rely completely on the court for everything. The most dependable strength lies in the internal unity of the employees. As long as we unite together, we will obtain the final victory. This is going to be a long battle, that's why we cannot see any concrete actions yet. As a matter of fact, we have done tremendous amount of propaganda in recent months, and we have 4 We note that, in addition to Chien's translation , the parties' stipulation also contains translations of Meng's letter undertaken (1) by the Institute Lan Franco, a professional language center located in San Francisco, California, (2) by the University of California Center for Chinese Studies, located in Berkley, California; and (3) by Meng, himself. These translations of the letter vary in some respects from each other and from that of Chien. However, the variations are slight and the substantial meaning conveyed by received support from a lot of people. To cite some concrete example, the only two congressmen from this city (Phil Burton, John Burton) did write separately to give their support to the employees of The Mandarin; they also telephoned the NLRB to inquire about the progress of this case. At 10:45 A.M. coming Monday, radio K101 will broadcast on the union movement of The Mandarin. Hope you all will listen to the program. At present, we have won the "election," we have also won the lawsuit on Billy Meng, these are steps toward our victory. Our plan is a long-drawn one. We start from the basic, moving from outside and closing in like tightening the fish-net. Sooner or later, Old-man Chien the big fish will be in our net. Tonight there will be many people coming to join the pickets and doing demonstration at the door of The Mandarin to give support to our brethren and sisters. We hope that our brethren and sisters working in The Mandarin can unite together and strive for the final victory. Discussion and Conclusions A. Introduction Counsel for the General Counsel contends that Meng has engaged in no activities or conduct with regard to the letter which are outside the protection of the Act or which warrant his being denied reinstate- ment. Counsel for Respondent argues, however, that the March 29 letter was a scurrilous and personal attack on Chien which warrants Meng's being denied reinstatement and the tolling of his backpay as of March 29, 1975, the date of the letter.4 B. Analysis The issue to be determined in this proceeding is not whether Respondent discharged Meng in violation of the Act, for we have already so found; rather, it is whether the statements contained in Meng's letter have made him so unemployable as to excuse Respondent from its duty of offering Meng reinstate- ment. In this regard, it is pertinent to note the following principles which are applicable to the instant proceeding. First, as the Trial Examiner in O'Daniel Oldsmobile Inc., 5 noted: When seeking to be excused from his obligation to reinstate or to pay backpay to a discriminatee all four translations is essentially the same . In this circumstance, we have thus relied on Chien's translation of Meng's letter in determining whether Meng has forfeited his right to reinstatement since it is on the basis of Chien's understanding of Meng's letter that Respondent discharged Meng on May 12. S 179 NLRB 398,405 ( 1969). 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of misconduct which was not a factor in the discriminatory action, an employer has a heavier burden than when he is merely seeking to justify the original discrimination. In the former case, he has the burden of proving misconduct so flagrant as to render the employee unfit for further service, or a threat to "efficiency in the plant " Secondly, as the Fifth Circuit noted in Crown Central Petroleum Corp. v. N.LRB.,6 in labor disputes, passions run high and "epithets and accusations are commonplace." Accordingly, the context in which the Meng letter was distributed, i.e., in the midst of a labor dispute, is fairly to be considered in judging Meng's suitability for continued employment.? Viewed against these standards, Meng's March 29 letter, the distribution of which we find protected concerted activity in any event, clearly does not warrant a refusal on Respondent's part to reinstate him nor does it warrant the tolling of any of his backpay. We note that the Administrative Law Judge, in finding that Meng was discharged in violation of the Act, resolved credibility against Chien. Although the Administrative Law Judge's credibility resolutions were excepted to by Respondent, we found no basis on which to reverse those credibility resolutions. Meng's letter makes reference to these findings. Other subjects contained in Meng's letter are his illegal discharge and a solicitation of continued support for the Union. Thus, in making assertions regarding the Adminis- trative Law Judge's finding with respect to Chien, Meng has not engaged in the dissemination of deliberately or maliciously false information.8 More- over, the subjects contained in Meng's letter, i.e., comments on his illegal discharge and solicitation of union support, are protected activities. The fact that Meng engaged in the activity alone does not of itself remove him from the protection of the Act as group action is not a prerequisite to concerted activity, for a single person's action may be the preliminary step to acting in concert .9 Here, Meng's letter contained a recitation of events in which the group of employees had been and still were involved. We, therefore, find that Meng was engaged in concerted activities within the protection of Section 7 of the Act in distributing the letter and that he is still entitled to reinstatement and full backpay. 6 430 F.2d 724, 731(1970). ' Hugh H. Wilson Corporation v. N LR.B., 414 F.2d 1345, 1356 (C.A. 3, 1969), and comments at fn. 20 therein. 8 El Mundo Broadcasting Corporation, 108 NLRB 1270,1280 (1954). s Salt River Valley Water Users Association, 99 NLRB 849, 853 (1952). 10 Phelps Dodge Corporation v. N.LR.B, 313 U.S. 177 (1941). Respondent asserts that because its restaurant is small there must be cooperation among the employ- ees and the manager. It argues it would therefore be an impossible situation if Meng were reinstated because he "villified, ridiculed and rebuked" Chien. We reject Respondent's argument. We note that the underlying policy of Section 10(c) of the Act, which our reinstatement orders are intended to effectuate, is "a restoration of the situation as nearly as possible, to that which would have obtained but for the illegal discrimination." 10 As noted, Respondent herein discharged Meng in violation of the Act. Shortly after issuance of the Administrative Law Judge' s Decision finding such a violation, Meng distributed to employ- ees the letter pointing out this illegal conduct and asking for continued support of the Union. This was protected activity. An important basis of the rein- statement order is the object that other employees be made aware, through the discriminatee's return to his or her former job, that their rights to engage in concerted activity are protected by the Act. Despite the difficulties which may be engendered, it is incumbent on the employer and the discriminatee to attempt to work together harmoniously and forget past animosity.11 Further, as we have noted, Meng's statements, occurring in the context of an ongoing labor dispute, have not rendered him unfit for further service and we do not view his statements as so unpardonable as to warrant denying him reinstatement on that basis.12 Accordingly, in view of all the circumstances, we find that it will not effectuate the policies of the Act to deny reinstatement to Meng, and we shall order Respondent to offer him immediate and full rein- statement and backpay from September It, 1974. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, M Restaurants, Incorporated, d/b/a The Mandarin, San Francisco, California, its officers, agents, succes- sors, and assigns, offer Billie Meng immediate and full reinstatement to his former position or, if this position no longer exists, to a substantially equivalent one, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of his discharge on September 11, 1974, in accord with the Administra- tive Law Judge's Decision herein. 11 See Trustees ofBoston University, 224 NLRB 1385 (1976). 12 Meng's comments about Chien's "Jewish boss," presumably Respon- dent's corporate vice president who is a member of the Jewish faith, also do not render him ineligible for further employment. Vermont American Furniture Corporation, 82 NLRB 408 (1949). We, of course, do not condone any racial or ethnic slurs that such comments might imply.