368 NLRB No. 16
Matsu Corp. d/b/a Matsu Sushi Restaurant
368 NLRB No. 16
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Matsu Corp. d/b/a Matsu Sushi Restaurant and Flush-
ing Workers Center. Case 01–CA–214272
June 28, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On October 26, 2018, Administrative Law Judge Ken-
neth W. Chu issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent filed
a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings,1 findings,2 and conclusions and to
1 Although the Respondent excepts to the judge’s ruling limiting the
evidence the Respondent could introduce regarding its purported invest-
ment dispute with employees Liguo Ding and Jianming Jiang, it did not
make an offer of proof at the hearing, and it does not state on exceptions
what additional evidence it would have presented had the judge permit-
ted it to do so. Accordingly, the Respondent has failed to preserve this
issue for review.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) of the Act by discharging employees Liguo Ding and Jianming
Jiang, we find, for the reasons stated in the judge’s decision, that Ding
and Jiang engaged in protected concerted activity by jointly refusing to
work an extra shift because of health and safety concerns. We note that
in arguing that the employees’ concerted activity was not protected, the
Respondent contends only that Ding and Jiang refused to work the extra
shift not out of health concerns, but solely because of an investment dis-
pute. The Respondent does not contend that the employees’ refusal to
work the extra shift would have been unprotected had it also been based
on health concerns—and in agreement with the judge, we have found
that it was substantially based on health concerns. We do not rely, how-
ever, on the judge’s citation of Brighton Retail, Inc., 354 NLRB 441
(2009), or Alton H. Piester, LLC, 353 NLRB 369 (2008), which were
decided by a two-member Board. See New Process Steel, L.P. v. NLRB,
560 U.S. 674 (2010).
We agree with the judge that the record fully supports his finding that
Ding and Jiang were discharged and did not quit, as the Respondent con-
tends. An employee may be discharged without formal words of firing.
“It is sufficient if the words or actions of the employer would logically
lead a prudent person to believe his [or her] tenure has been terminated.”
Nations Rent, Inc., 342 NLRB 179, 179–180 (2004) (internal quotation
adopt the recommended Order as modified3 and set forth
in full below.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Matsu Corp. d/b/a Matsu Sushi Restaurant,
Westport, Connecticut, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging employees for concertedly refusing to
work an extra shift because of health and safety concerns
or for engaging in other protected concerted activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Liguo Ding and Jianming Jiang full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously enjoyed.
marks omitted). As explained in the judge’s decision, the credited testi-
mony shows that after Ding and Jiang informed the Respondent of their
concerted refusal to work the extra shift, the Respondent told Ding there
would be consequences for this, and thereafter told both employees that
they needed to stay home, rest and not return to work. Ding and Jiang
repeatedly inquired about returning to work, but the Respondent did not
reply and instead paid them their outstanding wages. Under these cir-
cumstances, prudent persons would reasonably believe that their em-
ployment had been terminated. Moreover, in their Board affidavits,
Marty Cheng, the Respondent’s co-owner, and Yan Lin, its manager,
acknowledged that Ding and Jiang had been discharged.
However, in finding the discharges unlawful, we do not rely on the
judge’s analysis under 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 Corp., 462 U.S. 393 (1983). A
Wright Line analysis is not warranted here because the Respondent has
not asserted that it discharged the employees for any reason other than
their protected concerted refusal to work the extra shift. See, e.g.,
CGLM, Inc., 350 NLRB 974, 974 fn. 2 (2007) (Wright Line not applica-
ble where employees were disciplined for protected concerted activity,
and no other motive was at issue); Bon Harbor Nursing & Rehabilitation
Center, 348 NLRB 1062, 1062 (2006) (Wright Line analysis unnecessary
where respondent did not assert any basis for the discharges other than
the employees’ concerted protest over staffing levels). Indeed, the Re-
spondent does not concede that it discharged the employees at all. Its
principal defense, which we have rejected, is that Ding and Jiang quit.
Member McFerran agrees that the record leaves no doubt that Ding
and Jiang were deliberately discharged and did not voluntarily quit.
However, in the absence of exceptions to it, she would not disturb the
judge’s Wright Line analysis, which essentially reached that same con-
clusion, finding that the Respondent’s failure to continue to employ the
two was motivated by their concerted activity and not by a belief that the
two had voluntarily declined to work.
3 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language, and we shall substitute a new notice
to conform to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
(b) Make Ding and Jiang whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section
of the judge’s decision.
(c) Compensate Ding and Jiang for the adverse tax con-
sequences, if any, of receiving lump-sum backpay awards,
and 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 back-
pay awards to the appropriate calendar years.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges, and
within 3 days thereafter, notify the employees in writing
that this has been done and that the discharges will not be
used against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(f) Within 14 days after service by the Region, post at
its Westport, Connecticut facility copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by
email, posting on an intranet or internet site, and/or other
electronic means, if the Respondent customarily com-
municates 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 any other
material. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
December 8, 2017.
(g) 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
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. June 28, 2019
______________________________________
John F. Ring,
Chairman
______________________________________
Lauren McFerran,
Member
______________________________________
Marvin E. Kaplan,
Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT discharge any of you for concertedly re-
fusing to work an extra shift because of health and safety
concerns or for engaging in other protected concerted ac-
tivities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Liguo Ding and Jianming Jiang full reinstate-
ment 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.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
MATSU CORP. D/B/A MATSU SUSHI RESTAURANT
3
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,
and WE WILL also make them whole for reasonable search-
for-work and interim employment expenses, plus interest.
WE WILL compensate Liguo Ding and Jianming Jiang
for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and WE WILL file with the Re-
gional 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 awards to the
appropriate calendar years for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharges of Liguo Ding and Jianming Jiang, and WE
WILL, within 3 days thereafter, notify each of them in writ-
ing that this has been done and that the discharges will not
be used against them in any way.
MATSU CORP. D/B/A MATSU SUSHI RESTAURANT
The
Board’s
decision
can
be
found
at
https://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 Rela-
tions Board, 1015 Half Street, S.E., Washington, D.C. 20570,
or by calling (202) 273-1940.
Brent Childerhose, Esq., for the General Counsel.
Benjamin B. Xue, Esq., for the Respondent.
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 ref-
erenced as “Tr.”
4 Yan (Maggie) Lin testified that she is the manager of the Respond-
ent’s Westport restaurant and serves as the liaison between the two own-
ers 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
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 pro-
tected concerted activity by refusing to work under unsafe work-
ing 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 thepublic.
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 val-
ued in excess of $5000 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.
The Charging Party is a community organization that repre-
sents workers and is involved in employment and labor issues.
As such, I find that the Flushing Workers Center is a labor or-
ganization under Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background
The Respondent is a restaurant situated in Westport, Ct., ap-
proximately 50 miles from New York City. The Respondent
serves cooked and raw (sushi) food to the public. The Respond-
ent 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 responsibili-
ties 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 and Ding,
are transported to the restaurant by the Respondent in a company
minivan from points in Queens, New York to the Westport
workers, arrange for purchase orders, accept delivery of goods and con-
veys the instructions and messages from the owners to the workers. As
such, I find that Yan Lin is a Sec. 2(13) agent under the Act and reject
the Respondent’s denial in its answer to the contrary. Facchina Con-
struction 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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
restaurant.
At the time of the hearing, the two principal owners were Mi-
chael Cao and Marty Cheng. Cao works at the restaurant and
Cheng visits the restaurant on occasions (Tr. 13). Yan Lin (Lin)
is the manager of the restaurant. In 2017, Cao and Cheng had an
equal 29-percent share in the restaurant and Lin owned 10 per-
cent. 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).
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 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.
Lin and Cao testified that the Westport restaurant would reg-
ularly receive large catering orders for up to 2000 patrons at least
once every 4 months. On those occasions, the kitchen staff (in-
cluding Jiang and Ding) would work an extra shift from 1 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 to 6 a.m. on the morning of
the big order; and 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 work-
ing for the entire day and night because they receive a 1-1/2-hour
break and 2 30-minute meals. Cao also stated that on the morn-
ing 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).
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 res-
taurant 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).
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 felt
sick after working a big order in September 2017. At that point,
7 Ding disputed that he was a shareholder in the restaurant. He testi-
fied meeting with the representatives from the Flushing Workers Center
in July 2017 for advice on how to get back a deposit he paid to Respond-
ent so that he could work in the restaurant (Tr. 59).
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 1to 6 a.m. on any future big catering orders (Tr. 57, 58).8
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 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 de-
cision in September not to work extra hours on the big order.
On December 6, Ding was in the Respondent’s van commut-
ing 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. Accord-
ing 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 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).
Jiang telephoned Lin on the evening of December 5 and told
her that he and Ding will not work the big order because it af-
fected their health. According to Jiang, Lin did not reply back
but did implore him to work the order one last time. Jiang re-
fused and replied that he and Ding had health issues working the
long hours and their families were concerned over their well-be-
ing.
Jiang testified that he then called Ding and said he told Lin
that they will not work the extra hours on the big order. Accord-
ing 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).
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
8 Ding and Jiang testified with a language interpreter. Deng’s testi-
mony 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.
MATSU CORP. D/B/A MATSU SUSHI RESTAURANT
5
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 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 meet-
ing with Lin. Lin pleaded with Ding to work the big order and
Ding said he would not work the early morning (1 to 6 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).
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 unre-
sponsive. Ding testified that he made several calls to Lin after
December 8 and received the same answer, that she did not 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 order. Jiang replied in the negative.
Like Ding, Jiang admitted that his refusal to work was also be-
cause 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. 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 re-
taliating 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 or-
der (Tr. 96–99).
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 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 her
when they were ready to work after they rested (Tr. 31, 32). Lin
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 Respond-
ent Matsu purchased a second restaurant named Matsuri Sushi. Ding and
Jiang were investors in Matsuri Sushi in August 2015, but the restaurant
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).
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 to 6 a.m. During the breaktime, the workers are per-
mitted to rest and sleep. Cao denied that Ding and Jiang were
discharged and denied that they were threatened for not complet-
ing the big order. Cao testified that he never told Lin to discharge
Ding and Jiang. Cao testified that it would be difficult to fire
them since he considered Ding and Jiang as partners in the res-
taurant. Cao also denied knowing why Ding and Jiang never re-
turned 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
DISCUSSION ANALYSIS
Credibility Assessment
The credibility resolutions herein have been derived from a
review of the entire testimonial record and exhibits, with due re-
gard 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 wit-
ness’ demeanor, the weight of the respective evidence, estab-
lished or admitted facts, inherent probabilities and reasonable in-
ferences 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 Deal-
ership 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 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 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 dis-
charged and they never contacted the Respondent about return-
ing to work after they were allowed to rest after being informed
of their health issues.
The complaint alleges that the Respondent interfered, re-
strained and coerced employees in the exercise of the rights guar-
anteed in Section 7 of the Act in violation of Section 8(a)(1) of
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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6
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
choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection .
. . [Emphasis added].” See, Brighton Retail, Inc., 354 NLRB
441, 447 (2009). Section 8(a)(1) provides that it is an unfair la-
bor 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 pro-
tected by Section 7 is a violation of Section 8(a)(1).
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 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 ac-
tivity 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); Mush-
room Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir.
1964). The object of inducing group action need not be express.
The Act also protects concerted activities for mutual aid or pro-
tection 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 ac-
tivity when they mutually agreed after the September large ca-
tering order that they will not work another big order with a 36-
hour work shift due to their health and the concerns of their fam-
ily over their safety in working long hours. Ding and Jiang were
concerned for their health in working long hours with the extra
1 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 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 ap-
proaching 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.
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 bring-
ing truly group complaints to the attention of management.
Fresh & Easy Neighborhood Market, 361 NLRB 151 (2014).
Actions taken by the two workers were for mutual aid or
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 inas-
much as the workers calculated their commute time in their hours worked
and the Respondent maintained that there were a 90-minute break and 2
30-minute meals as well as rest periods before the early morning 1 to 6
a.m. shift and at the end of that shift and before the beginning of the 11
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).
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 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 discrim-
inatory motivation by proving the employee’s protected con-
certed 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).
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 legitimate reason
for its action but must persuade by a preponderance of the evi-
dence 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).
Discriminatory motive may be established in several ways in-
cluding 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 discoveryof 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 em-
ployee’s discipline was pretextual, such as disparate treatment of
the employee, shifting explanations provided for the adverse ac-
tion, failure to investigate whether the employee engaged in the
alleged misconduct, or providing a nondiscriminatory explana-
tion 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,
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 to 6 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.
MATSU CORP. D/B/A MATSU SUSHI RESTAURANT
7
634 (1992); Wright Line, 251 NLRB at 1088 fn. 12, citing Shat-
tuck 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 Ding and Jiang was motivated by
their protected concerted activity and that the Respondent failed
to show that it would have taken the same action absent the pro-
tected 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 refusal to work
the big order. Instead of letting them work their regular shift and
forego the 1 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 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 to 6 a.m. shift. Clearly, the Respond-
ent was upset that Ding and Jiang had the temerity to refuse
working the early morning shift. The Respondent showed its an-
imus towards their concerted activity when Lin told Ding there
would “be consequences” if he did not 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 when they are able to work. Lin testi-
fied that neither worker contacted her to return to work after De-
cember 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 shifts but re-
fused 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 working on December 8. Lin stated that the Re-
spondent subsequently paid the outstanding wages of both work-
ers. 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.
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 state-
ments in the affidavit that were prepared for their sworn signatures. The
Respondent further argues that the former attorney was not Chinese
Finally, and most damaging, is the fact that the Respondent
admitted to the Board that the two workers were indeed dis-
charged 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).12
Employees, under the Act, are privileged to seek to change
their terms and conditions of employment by concertedly re-
questing a change, concertedly protesting their employer’s fail-
ure to grant a specific request or demand, and, ultimately, by en-
gaging in a work stoppage or strike. When employees engage in
work stoppage, the stoppage must be complete. The employees
must withhold all their labor. “They cannot pick and choose 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).
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 Alu-
minum 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 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 con-
certed activity or risk termination. The Board, in those circum-
stances, found that the concerted refusal to perform the work was
protected activity and that termination for that 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 complained that past big orders had af-
fected their health.
While there may be other factors, I find above that their dis-
charges were clearly motivated by their protected concerted ac-
tivity 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, 1308 (1981), enfd. 692 F.2d 1171 (8th
Cir. 1982), the Board stated that “[i]nquiry into the objective rea-
sonableness of employees’ concerted activity is neither neces-
sary nor proper in determining whether that activity is pro-
tected.” 258 NLRB at 1308. “Whether the protested working
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 affida-
vits to Lin and Cheng.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8
condition was actually as objectionable as the employees be-
lieved it to be . . . is irrelevant to whether their concerted activity
is protected by the Act.” Id.; Odyssey Capital Group, L.P., III,
337 NLRB 1110, 1111 (2002).
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 LAW
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 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.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, the Respondent having
discriminatorily discharged Liguo Ding and Jianming Jiang, I
shall order the Respondent to offer Ding and Jiang full reinstate-
ment to their former positions or, if those positions no longer ex-
ist, to substantially equivalent positions, without prejudice to
their seniority or any other employee emoluments, rights or priv-
ileges previously enjoyed, and to make them whole for any loss
of earnings suffered as a result of the Respondent’s unlawful ac-
tions against them. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded 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 101 (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 back-
pay award to the appropriate calendar years. AdvoServ for New
Jersey, 363 NLRB No. 143 (2016).
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 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, supra.
It is further recommended that Respondent remove all
13 If no exceptions are filed as provided by Sec. 102.46 If no excep-
tions are filed as provided by Sec. 102.46 of the Board’s Rules and Reg-
ulations, the findings, conclusions and recommended
references to the termination on 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.
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 discharges will not be used
against them in any way.
On these findings of facts and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
The Respondent, Matsu Corp., d/b/a Matsu Sushi, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
Discharging, or otherwise discriminating against employees
because they engaged in protected concerted activities.
In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Make Liguo Ding and Jianming Jiang whole for any loss
of earnings and other benefits, including reimbursement for all
search-for-work and interim-work expenses, regardless of
whether they received interim earnings in excess of these ex-
penses, 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 conse-
quences, 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 appro-
priate 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 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.
(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 addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
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 pur-
poses.
MATSU CORP. D/B/A MATSU SUSHI RESTAURANT
9
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic 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 Section 102.48 of the Rules, be adopted by
the Board and due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its ex-
isting property at the Westport, restaurant, 33 Jessup Road,
Westport, Connecticut, a copy of the attached notice in the Eng-
lish 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 repre-
sentative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition
to physical posting of paper notices, the notices shall be distrib-
uted 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 any other ma-
terial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the fa-
cility involved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the Re-
spondent at any time since December 8, 2017.
(h) Mail a copy of said notice to Liguo Ding and Jianming
Jiang at their last known addresses.
(i) Within 21 days after service by the Region, file with the
Regional Director for Region 29, a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. October 26, 2018
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 be-
half
Act together with other employees for your benefits and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge or otherwise discriminate against you
because you engage in protected concerted or to discourage you
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
from engaging in these or other concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer Liguo Ding and Jianming Jiang full reinstatement to their
former jobs or, if the jobs no longer exist, to substantially equiv-
alent 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 in-
creases 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 ex-
penses, 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 back-
pay 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.
MATSU CORP., D/B/A MATSU SUSHI
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/01-CA-214272 or by using the QR code be-
low. 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.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”