Daikichi Sushi

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 622 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 622
Daikichi Corp. d/b/a Daikichi Sushi and Mohammed
Based and Mohammed A. Rahman and Aporna
Deb, and Kazi S. Rahman. Cases 29–CA–21362,
29–CA–21391, 29–CA–21397, and 29–CA–21427
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND WALSH
On July 14, 1999, Administrative Law Judge Stephen
J. Gross issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a brief in support of
the judge’s decision.
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, findings,1 and conclusions and
to adopt the recommended Order as modified.2
The Respondent owns and operates fast food sushi
stores in New York City. The Respondent supplies these
stores with sushi prepared at its central kitchen located in
Long Island City. On February 20, 1997,3 Teamsters
Local 295 (the Union) filed a representation petition
seeking to represent a unit of about 60 of the central
kitchen employees. The Board conducted an election
among the unit employees on April 7. The Union won
the election, and the Board certified the Union on No-
vember 4.
The judge found that the Respondent violated Section
8(a)(1) of the Act by making certain statements to em-
ployees during and after the campaign. The judge also
found that the Respondent violated Section 8(a)(3) and
(1) in late August by refusing to recall certain perma-
nently laid-off employees because of their union activity.
The Respondent has excepted to these findings. We
agree with the judge.
1. The judge found that in a March meeting the Re-
spondent’s president, Mr. Watanabe, unlawfully threat-
ened employees with the loss of their jobs if they sup-
ported the Union. The judge further found that in the
same meeting Watanabe unlawfully promised the em-
ployees a wage raise to discourage support for the Union.
The judge based these findings on the credited testimony
of employees Christopher Gomes, Mohammed Based,
and Mohammed Rahman, and the Respondent’s failure
to call Watanabe, or any other witness, to deny their tes-
timony.

1 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is to
not overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard 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.
2 We will modify the judge’s recommended Order in accordance with
our recent decision in Ferguson Electric Co., 335 NLRB 142 (2001).
3 All dates are in 1997, unless stated otherwise.
The Respondent argues that the judge erroneously re-
lied on Gomes’, Based’s, and Rahman’s testimony about
Watanabe’s statements, pointing to the judge’s observa-
tion that he did not “consider any of the three to be
wholly credible witnesses.” However, “nothing is more
common in all kinds of judicial decisions than to believe
some and not all” of a witness’ testimony. NLRB v. Uni-
versal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950),
revd. on other grounds 340 U.S. 474 (1951). Accord:
General Fabrications Corp., 328 NLRB 1114 fn. 1
(1999), enfd. 222 F.3d 218 (6th Cir. 2000). Here, the
judge specifically found the relevant portions of their
testimony credible.
The Respondent further suggests the judge improperly
relied on the Respondent’s failure to call Watanabe—the
only management representative in the March meeting
after Watanabe himself dismissed Fumio Saito, kitchen
manager, and Assistant Supervisors Wahab Ahdul (Dipu)
and Kien Vi Lu—to controvert Gomes’, Based’s, and
Rahman’s testimony. However, it is settled “that when a
party fails to call a witness who may reasonably be as-
sumed to be favorably disposed to the party, an adverse
inference may be drawn regarding any factual question
on which the witness is likely to have knowledge.” In-
ternational Automated Machines, 285 NLRB 1122, 1123
(1987), enfd. mem. 861 F.2d 720 (6th Cir. 1988). Al-
though the judge did not use the phrase “adverse infer-
ence,” he properly applied this principle to infer that, had
the Respondent called Watanabe to testify about his own
speech, his testimony would have been consistent with
the employees’ testimony.4
Our dissenting colleague concludes that the judge im-
properly relied on the failure of the Respondent’s wit-
4 See Martin Luther King, Sr., Nursing Center, 231 NLRB 15 fn. 1
(1977) (judge implicitly, and properly, relied on the “missing witness”
rule). See also NLRB v. District Council of California Iron Workers
Local 155, 124 F.3d 1094, 1100 (9th Cir. 1997) (drawing adverse infer-
ence against union because officers failed to testify); Douglas Aircraft
Co., 308 NLRB 1217 fn. 1 & 1222 (1992) (drawing adverse inference
from employer’s failure to call officials to explain alleged unlawful
actions). The adverse inference rule does not apply when a party fails
to call employee witnesses because they “may not reasonably be pre-
sumed to be favorably disposed to any party.” See Queen of the Valley
Hospital, 316 NLRB 721 fn. 1 (1995). Accord: Torbitt & Castleman,
Inc. v. NLRB, 123 F.3d 899 (6th Cir. 1997). Thus, there is no merit in
the Respondent’s suggestion that the judge should have drawn an ad-
verse inference against the General Counsel based on his failure to call
the approximately 47 other employee witnesses to Watanabe’s speech.
335 NLRB No. 53
DAIKICHI SUSHI 623
nesses to testify in crediting Gomes’, Based’s, and Rah-
man’s version of Watanabe’s speech. He reasons that the
judge had doubts about the employees’ testimony be-
cause of “language barriers,”5 these doubts raised a
credibility issue, and “[t]he failure of Respondent’s wit-
nesses to testify on the point did not erase or resolve
[this] credibility issue.” We disagree.
Where demeanor is not determinative, an administra-
tive law judge properly may base credibility determina-
tions on the weight of the respective evidence, estab-
lished or admitted facts, inherent probabilities, “and rea-
sonable inferences which may be drawn from the record
as a whole.” Shen Automotive Dealership Group, 321
NLRB 586, 589 (1996). This is exactly what the judge
did here. The judge was concerned about the employees’
testimony because of the language barrier (a legitimate
concern, although a witness’ difficulties with English
should not hastily be equated with unreliability or in-
competence). But the judge did not resolve the employ-
ees’ credibility on this basis alone. Rather, he appropri-
ately considered all the circumstances, including the Re-
spondent’s failure to offer available witness testimony to
controvert the employees’ account of Watanabe’s speech.
The fact that the Respondent’s silence did not resolve all
doubts about the accuracy of the employees’ testimony is
insufficient to warrant upsetting the judge’s determina-
tion. See, e.g., Jennie-O Foods, 301 NLRB 305, 336–
337 (1991) (crediting employee witness with a “‘serious
inability’ to comprehend and relate to what she [was]
hearing over employer witness who ‘retreated’ from tes-
tifying about disputed matters”). After all, as the judge
recognized, the General Counsel was only required to
establish that it was “more likely than not” that Wata-
nabe made the statements at issue.6
It is reasonable to infer, moreover, that the employ-
ees—despite their imperfect command of English—
understood the basic thrust of Watanabe’s speech. Wata-
nabe presumably believed that his speech could be un-
derstood or he would not have made it. And whatever
their individual English proficiency, it is unreasonable to
assume that the employees who were present for the
speech did not speak to each other afterward and did not
have the ability and opportunity to jointly develop an
understanding of what Watanabe said.
2. The judge also found that the Respondent violated
Section 8(a)(1) when Assistant Supervisor Lu told em-

5 As the judge found, the native language of Gomes, Based, and
Rahman was Bengali, and their understanding of English “was at best
hit or miss.” Watanabe delivered his speech in English, sometimes
with a translator present and sometimes without.
6 See Sec. 10(c) of the Act (preponderance of evidence standard ap-
plies).
ployee Mohammed Rahman, “[I]t’s an open secret that
you’ve joined the Union.” The judge found Lu’s state-
ment unlawfully created the impression of surveillance
of Rahman’s union activities. We agree. See Syncor
International Corp., 324 NLRB 8, 12 (1997).
The Respondent erroneously contends that Lu’s state-
ment could not have been coercive because it was made
in a “friendly” discussion with Rahman about the pros
and cons of union representation. Even if Rahman and
Lu discussed unionization generally, there is no indica-
tion that Rahman had disclosed his own union member-
ship. In any event, the Board “‘does not require employ-
ees to attempt to keep their union activities secret before
an employer can be found to have created an unlawful
impression of surveillance.’” Tres Estrellas de Oro, 329
NLRB 50 (1999) (quoting United Charter Service, 306
NLRB 150, 151 (1992)). We also reject the Respon-
dent’s suggestion that Lu’s statement was lawful because
Rahman did not perceive it as creating the impression of
surveillance. The Board’s test is an objective one. See
Tres Estrellas de Oro, supra.
Further, for reasons stated, we disagree with our dis-
senting colleague’s contention that, given the language
barrier, the judge erred in finding that Lu made the
statement attributed to him by Rahman. It is true that the
judge did not expressly find that Rahman understood
Lu’s statement. Such a finding, however, is implicit in
his ultimate finding, based on Rahman’s testimony, that
Lu made the unlawful statement attributed to him.
3. The judge further found that the Respondent,
through Assistant Supervisor Saito, unlawfully threat-
ened employees with plant closure if they selected repre-
sentation by the Union. As a factual matter, the Respon-
dent contends that the judge incorrectly stated that Assis-
tant Supervisor Saito told employees that the Respondent
“would” close its East Coast operation if they selected
union representation, because union demands would in-
crease costs of production. We find merit in the Respon-
dent’s contention. The record indicates that Saito stated
that the Respondent “might” close, rather than that it
“would” close.
We nevertheless find that Saito’s statement violated
Section 8(a)(1). The Supreme Court in NLRB v. Gissel
Packing Co., 395 U.S. 575, 616–620 (1969), held that an
employer may lawfully communicate to his employees
“carefully phrased” predictions based on “objective
facts” as to “demonstrably probable consequences be-
yond his control” that he believes unionization will have
on his company. However, the Court cautioned that if
there is “any implication that an employer may or may
not take action solely on his own initiative for reasons
unrelated to economic necessities and known only to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 624
him,” the statement is a threat of retaliation, which vio-
lates Section 8(a)(1). In determining how employees
might reasonably construe such communications, the
Court emphasized that “the economic dependence of
employees on the employer” must be factored into the
analysis.
Here, Saito failed to cite any objective facts that would
tend to show that if the employees voted to unionize, the
Respondent would no longer be able to compete and
might have to close for reasons beyond its control. In its
exceptions, the Respondent points to Gomes’ admission
that Saito explained the Respondent could go out of
business “if all the demands of the union were to be
met.” However, the Respondent presented no evidence
that the Union made any demands at all, let alone de-
mands that, if met, would have the “demonstrably prob-
able consequence” of driving the Respondent out of
business. AP Automotive Systems, 333 NLRB 581
(2001) (employer engaged in objectionable conduct by
conveying to employees that union, if selected, would
inevitably make exorbitant demands leading to plant clo-
sure). Cf. Benjamin Coal Co., 294 NLRB 572 fn. 2
(1989) (employer’s prediction of dire economic circum-
stances lawful where it was in response to union’s pledge
to insist on application of an industrywide agreement).
Saito’s statement, moreover, took place against the back-
drop of the Respondent’s unfair labor practices, includ-
ing President Watanabe’s substantiated threats to dis-
charge employees who engaged in union activity. In
these circumstances, we find that Saito’s statements rea-
sonably conveyed the message that the Respondent
might decide on its own initiative to shut down opera-
tions if the employees selected union representation.
It is no defense that Saito phrased his prediction of
plant closure as a possibility rather than a certainty. In
Gissel itself, the employer’s unlawful statements were to
the effect that the union would probably strike and that a
strike “could lead to the closing of the plant.” 395 U.S.
at 588. See also McDonald Land & Mining Co., 301
NLRB 463, 466 (1991) (finding statement that creditors,
upon learning that employees favored unionization,
“might get nervous and decide to throw us [into] Chapter
11” violated Sec. 8(a)(1)); Glasgow Industries, 204
NLRB 625, 626–627 (1973) (finding statement that “if
you all vote this Union in, this plant could move to Mex-
ico” violated Sec. 8(a)(1)); Mohawk Bedding Co., 204
NLRB 277, 278 (1973) (finding that in the context of
statements of plant closure, the statement “[i]f the Union
wins the election tomorrow . . . then we could all be in
for serious trouble,” violated Sec. 8(a)(1)). Accordingly,
we affirm the judge’s finding that Saito’s statement that
the Respondent might go out of business violated Section
8(a)(1).7
Our dissenting colleague disagrees with this conclu-
sion, based largely on his rejection of the judge’s unfair
labor practice findings involving Watanabe and Assistant
Supervisor Lu. As a result, our colleague finds that
Saito’s statement “was not made in an otherwise ‘coer-
cive context’” and therefore did not require substantia-
tion by objective evidence. However, we have affirmed
the judge’s findings that Watanabe and Assistant Super-
visor Lu engaged in contemporaneous violations of Sec-
tion 8(a)(1).
4. The judge further found that the Respondent vio-
lated Section 8(a)(3) and (1) in August by refusing to
recall six laid-off hot kitchen employees because of their
union activity. The Respondent contracted out the “hot
kitchen” portion of its central kitchen on about August
28, 1997.8 As a result, the Respondent permanently laid
off hot kitchen employees Mohammed Rahman, Mo-
hammed Based, Kazi Rahman, Aporna Deb, Mohammed
Zaman, and Christopher Gomes on August 28 and 29.
As the judge found, the employees, all of whom had ex-
perience working in other areas of the central kitchen,
asked to be placed in those other areas or otherwise made
clear their desire to continue working for the Respon-
dent. The Respondent refused to recall any of them. The
judge found that the employees’ union activity was a
motivating factor in that decision and that the Respon-
dent failed to establish that it would have taken the same
action even in the absence of that activity. We agree.
As the judge found, all six of these employees engaged
in union activity and the Respondent had knowledge of
that activity. The judge’s finding of knowledge is sub-
stantiated by Assistant Supervisor Dipu’s “free-
wheeling” conversations with Based and Kazi Rahman
about employees’ prounion sentiment and Assistant Su-
pervisor Lu’s unlawful statement to employee Moham-
med Rahman, “it’s an open secret that you’ve joined the
Union.”

7 With regard to the prior settlement agreement, we find merit in the
Respondent’s contention that the judge erroneously stated in his deci-
sion that “Daikichi proffered no information about the settlement
agreement either at the hearing or on brief.” The prior complaint and
settlement agreement are in the record, and the Respondent noted this
in its brief to the judge. This error, however, does not affect the result
herein because the allegations underlying the violations found were not
encompassed within the settlement agreement. See B & K Builders,
325 NLRB 693, 694 (1998).
8 The judge dismissed the complaint insofar as it challenged the con-
tracting out of the hot kitchen as unlawful. Contrary to the General
Counsel’s exceptions, we agree with the judge that the Respondent
established that it would have contracted out its hot kitchen operation
even in the absence of the employees’ union activity.
DAIKICHI SUSHI 625
Contrary to the Respondent and our dissenting col-
league’s contention, moreover, the record evidence fully
supports the judge’s finding that the Respondent’s re-
fusal to recall the employees was motivated by their sup-
port for the Union. As the judge emphasized, the Re-
spondent’s union animus is revealed by Watanabe’s ear-
lier threat of job loss if employees supported the Union.
Significantly, the Respondent’s refusal to recall the em-
ployees effectively made good on this threat. See W. F.
Bolin Co., 311 NLRB 1118, 1119 (1993), enfd. mem. 99
F.3d 1139 (6th Cir. 1996) (employer’s unlawful threat to
get rid of employees who complained about pay sup-
ported finding of animus and unlawful motivation in sub-
sequent layoff of those who continued to complain).
Unlawful motivation is also revealed by General Man-
ager Histo Baba’s false statement to employees that he
could not place them in other areas of the kitchen “because
the operation is full. We have just enough people.” In
fact, the Respondent did not have enough people. Thus, as
the judge found, in September the Respondent hired at
least six new employees to staff its “full” operations, and
continued to hire new employees in the ensuing months.
See generally Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466, 470 (9th Cir. 1966) (falsity of asserted reason
for adverse action supports inference of unlawful motive).
And as the judge pointed out, the Respondent offered no
explanation for its decision to hire new employees rather
than recall its experienced workers.
In view of all these facts, we agree with the judge that
a reason for the Respondent’s refusal to recall the six
employees was their support for the Union. We also
agree with the judge that the Respondent failed to estab-
lish that it would have refused to recall the employees
even in the absence of their union activity. Therefore,
we affirm the judge’s finding of a violation of Section
8(a)(3) and (1). See Grinnell Corp., 320 NLRB 817, 831
(1996) (although employee’s layoff was not unlawful,
employer’s refusal to recall him violated Sec. 8(a)(3)).
The Respondent’s argument, based on Kmart Corp.,
320 NLRB 1179 (1996), and Lampi, L.L.C., 322 NLRB
502 (1996), that the judge was required to find evidence
of disparate treatment is without merit. To be sure, these
decisions make clear that the presence or absence of dis-
parate treatment can be important evidence in a case al-
leging a violation of Section 8(a)(3). Such evidence,
however, is not required to establish a case of unlawful
discrimination. The Board and the courts have recog-
nized that a variety of circumstances may support a find-
ing of unlawful motivation. See W. F. Bolin Co. v.
NLRB, 70 F.3d 863, 870 (6th Cir. 1995); NLRB v. Adco
Electric, Inc., 6 F.3d 1110, 1118 fn. 6 (5th Cir. 1993).
Similarly, the lack of “suspicious timing,” as the Re-
spondent puts it, is not determinative. See Flannery Mo-
tors, 321 NLRB 931 (1996) (lapse of time between pro-
tected activity and discharges was insufficient to over-
come other evidence of antiunion motive), enfd. mem.
129 F.3d 1263 (6th Cir. 1997).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, Daikichi Corp.
d/b/a Daikichi Sushi, Long Island City, New York, its
officers, agents, successors, and assigns shall take the
action set forth in the Order as modified.
Substitute the following paragraph for paragraph 2(d).
“(d) 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, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”

CHAIRMAN HURTGEN, dissenting in part.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(1) of the Act based on the statement of
Assistant Supervisor Wahab Ahdul (Dipu) to employee
Aporna Deb. I also agree that the Respondent did not
violate Section 8(a)(3) by contracting out the hot kitchen
work. However, I disagree with the conclusions of my
colleagues on four other matters.
First, contrary to my colleagues and the judge, I find
that the Respondent did not violate Section 8(a)(1) based
on the speech by Daikichi’s president, Mr. Watanabe.
Employees and supervisors in the Daikichi central kitchen
spoke a variety of different languages including Chinese,
Japanese, Spanish, and Bengali. Watanabe’s disputed
speech was given in English. However, as found by the
judge, the three employee witnesses who testified about
the speech understood English “only to a limited extent”
and “only with great difficulty.” The judge also found that
the employees’ understanding of English was “at best hit
or miss[.]” The judge said that he did “[not] consider any
of the three to be wholly credible witnesses.”1 However,
the judge nonetheless turned right around and credited the
employees. He did so solely on the basis that Respon-
dent’s witnesses did not deny the testimony of the General
Counsel’s witnesses. In these circumstances, I conclude
that the judge has not appropriately resolved the credibility
issue. As the judge found, the testimony of the three Gen-

1 It is clear that, in context, the judge inadvertently omitted the
bracketed word “not.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 626
eral Counsel witnesses raised a credibility issue. That
credibility issue existed by reason of language barriers.
The failure of Respondent’s witnesses to testify on the
point did not erase or resolve the credibility issue. Indeed,
it had nothing to do with the credibility issue. Notwith-
standing this, the judge purported to resolve the credibility
issue. The judge could only bring himself to say that Wa-
tanabe said, “[S]omething along the line of.” Since the
judge cited nothing else to resolve credibility, I find his
purported credibility resolution to be lacking in substance.
My colleagues say that the judge drew an adverse in-
ference from Watanabe’s failure to testify, i.e., the judge
properly inferred that, had Watanabe testified, he would
have supported the employees’ testimony. In fact, the
judge did no such thing. He made no specific reference
to Watanabe’s failure to testify; he did not say anything
at all about an adverse inference; he did not speculate
about how Watanabe would have testified. In short, my
colleagues’ discussion of “adverse inference” is their
own creation, designed to build up a shaky case.
In sum, there is insufficient evidence to establish that
Watanabe uttered the words attributed to him. Further,
there is insufficient evidence to establish that the em-
ployees who heard the speech understood the language in
which it was made. The judge made no such finding.
Moreover, the record contains no evidence that Wata-
nabe’s speech was translated for the employees by some-
one who heard the speech.2 Although it was unnecessary
to prove that the employees were actually coerced, the
General Counsel was required to prove that the Respon-
dent’s conduct reasonably tended to restrain, interfere
with, or coerce the employees’ exercise of Section 7
rights. Here, there was no reasonable likelihood of co-
ercing employees who lacked sufficient understanding of
the language in which the statements were made. Absent
a translation, the statements made by Watanabe in Eng-
lish (to employees whom the judge found did not suffi-
ciently understand English) would not reasonably tend to
restrain, interfere with, or coerce the exercise of the em-
ployees’ rights. I find no basis for my colleagues’ appar-
ent assumption that, following Watanabe’s speech, the

2 The three employee witnesses who testified about the speech spoke
Bengali. The judge found that when Watanabe arrived, Assistant Su-
pervisor Dipu, who spoke Bengali and at times translated manage-
ment’s comments for the Bengali-speaking employees, left the room as
instructed. Assistant Supervisor Kien Vi Lu left as well. Neither em-
ployees Kazi Rahman nor Mohammed Based testified that other super-
visors were present during Watanabe’s speech or that the speech was
translated into Bengali for them. Only employee Christopher Gomes
testified that, at some later time, Assistant Supervisors Dipu and Lu
were brought in to translate Watanabe’s speech into Bengali and Chi-
nese, respectively. No witnesses testified that Dipu heard the disputed
speech.
employees jointly developed an understanding of what
Watanabe said. Even if they did jointly develop such an
understanding, that would not establish the substance of
what Watanabe said or whether the understanding was
reasonable.
My colleagues also say that Watanabe “presumably
believed that his speech could be understood or he would
not have made it.” However, that obviously does not
establish that employees in fact understood what he said.
I, therefore, find that the General Counsel failed to prove
that the Respondent violated Section 8(a)(1) of the Act
based on Watanabe’s speech.
Second, contrary to my colleagues and the judge, I find
that the Respondent did not violate Section 8(a)(1) based
on the statement of Assistant Supervisor Lu to employee
Mohammed Rahman. As with Watanabe’s speech, Lu’s
statement to employee M. Rahman that “it’s an open
secret that you’ve joined the Union” was made to an em-
ployee who spoke a different language. The judge ex-
pressed the same concerns about the accuracy of M.
Rahman’s testimony and his understanding of English as
he (the judge) did with respect to the witnesses noted
above. Given these concerns, my colleagues’ “implicit”
finding that M. Rahman understood the statement despite
the significant language barrier is not sufficient. There is
no actual finding, nor would any such finding be sup-
ported by the evidence. Absent a finding by the judge
that M. Rahman understood Lu’s statement, I find that
the General Counsel failed to prove that the statement
created an impression of surveillance, in violation of
Section 8(a)(1) of the Act.
Third, contrary to my colleagues and the judge, I find
that the Respondent did not violate Section 8(a)(3) by
failing to recall six employees from layoff. Under the
test set forth in Wright Line,3 the General Counsel must
initially establish a prima facie case that the Respon-
dent’s decision not to recall the employees from layoff
was motivated, at least in part, by the employees’ pro-
tected activity. However, the record shows no connec-
tion between the Respondent’s failure to recall the laid-
off employees and any union animus. The judge found
that the Respondent’s decision to lay off the employees
was not motivated by union animus and, for reasons
stated above, I find no union animus on the part of Wata-
nabe. Having found no unlawful threat by Watanabe, I
disagree with my colleagues’ conclusion that the failure
of the Respondent to recall the employees “effectively
made good on his threat.” Further, I reject the majority’s
reliance on a statement made by East Coast General
3 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert.
denied 495 U.S. 989 (1982).
DAIKICHI SUSHI 627
Manager Histo Baba at the time the Respondent lawfully
laid off the employees. That statement, even if false,
relates to the Respondent’s decision to lay off the em-
ployees, and does not establish the General Counsel’s
prima facie case that the Respondent unlawfully failed to
recall employees from layoff. The record also contains
no evidence concerning the skills of the newly hired em-
ployees compared with the skills of the laid-off employ-
ees, and no evidence on whether the newly hired em-
ployees had a history of union activity. Further, the re-
cord contains no evidence that the Respondent has ever
recalled any employees from layoff. Thus, I find no ba-
sis for inferring that the Respondent’s failure to do so
here was motivated by union animus.
In these circumstances, I find no connection between
the Respondent’s failure to recall the laid-off employees
and the employees’ protected activity and, therefore, I
conclude that the General Counsel failed to establish a
prima facie case of discrimination under Section 8(a)(3).
Fourth, I conclude that the statement by Kitchen Man-
ager Fumio Saito was not violative of Section 8(a)(1).
An employer may lawfully communicate its views to
employees about a particular union provided the com-
munications “do not contain a threat of reprisal or force
or promise of benefit.” NLRB v. Gissel Packing Co., 395
U.S. 575, 618 (1969). I find no threat of reprisal in
Saito’s statement describing that the Respondent’s East
Coast operation might be unable to continue in the event
of unionization because Daikichi would lose its ability to
compete successfully. Saito explained that if all the de-
mands of the Union were to be met, the production costs
would go up, and closure of the operation might occur.
Saito did not imply that the operation would close for
retaliatory reasons rather than for economic reasons.
Rather, as shown by the record, Saito linked the possible
closure of the facility to the conditions of increased costs
and loss of competitiveness. These are objective, eco-
nomic factors beyond the Employer’s control. Saito’s
statement suggested that higher production costs and loss
of competitiveness, brought on if the Union’s demands
were met, could be determinative. There was no implica-
tion that the Respondent would take action for reasons
unrelated to economic necessities.
I find it unnecessary in the circumstances of this case
for Saito to have recited precise economic data to support
his statement. Unlike Glasgow Industries, 204 NLRB
625 (1973); and Mohawk Bedding Co., 204 NLRB 277
(1973), cited by the majority, Saito’s statement was not
made in an otherwise “coercive context,” and thus the
environment in this case did not present an “atmosphere
of apprehension in the minds of the [employees.]” Glas-
gow, supra at 627; Mohawk, supra at 279.4 As explained
above, I find the evidence insufficient to show that Wa-
tanabe made a statement which reasonably tended to co-
erce employees or that Lu created the impression of sur-
veillance. Moreover, the facility supervisors were spe-
cifically trained by a labor consultant on what they were
and were not allowed to say to employees during an elec-
tion campaign and, with one isolated exception, did not
otherwise violate the law. Thus, absent other coercive
circumstances, I do not interpret Saito’s statement as
indicating that the Respondent might decide on its own
initiative to shut down operations in retaliation for em-
ployees’ selection of the Union. Rather, I find Saito’s
statement was protected speech under Section 8(c).

Sharon Chau, Esq., for the General Counsel.
Anthony B. Byergo, Esq. and Frederic H. Fischer, Esq. (Sey-
farth, Shaw, Fairweather and Geraldson, Esqs.), of Chi-
cago, Illinois, for the Respondent.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. The Re-
spondent, Daikichi Corp. d/b/a Daikichi Sushi, owns and oper-
ates fast food sushi stores on both the East and West Coasts.1
Almost all of Daikichi’s East Coast stores are in New York.
Beginning in February 1996 Daikichi prepared most of the
sushi it sold in its East Coast establishments at a central kitchen
in Long Island City. And since May 1997 the central kitchen
has prepared all of Daikichi’s East Coast sushi. We are con-
cerned here with events that occurred in the central kitchen
facility beginning in February 1997.
On February 20, 1997, Teamsters Local 295 (the Union)
filed a repesentation petition seeking to represent the approxi-
mately 60 bargaining unit employees employed in the central
kitchen.2 At an election conducted by the Board on April 7,
Daikichi’s central kitchen employees voted to be represented
by the Union.3
The General Counsel contends that beginning in March 1997
and continuing until after the election, five different Daikichi
supervisors and a consultant retained by Daikichi violated Sec-
tion 8(a)(1) of the Act by reason of statements they made to
Daikichi’s employees.
In August 1997, Daikichi contracted out some of the kitchen
work that had been performed by Daikichi employees. That
resulted in Daikichi permanently laying off eight employees.

4 I also find the statement in McDonald Land & Mining Co., 301
NLRB 463, 466 (1991), referred to by the majority, to be too specula-
tive in that case to have been based on objective facts.
1 Daikichi admits that it is an employer engaged in commerce within
the meaning of the National Labor Relations Act (the Act).
2 The unit:
All full-time and regular part time kitchen worker employees em-
ployed by Daikichi at its 36-35 35th Street, Long Island City, New
York, facility, excluding all other employees, guards and supervisors
as defined in the Act.
3 On November 4, 1997, the Board certified the Union as representa-
tive of the unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 628
The General Counsel argues that Daikichi contracted out the
work in order to rid itself of prounion employees and, because
of these employees’ prounion stance, refused to reassign the
employees or to recall them, all in violation of Section 8(a)(3).
This decision will discuss the alleged unlawful utterances in
part I, the contracting out in part II, and in part III, the fact that
Daikichi did not recall any of the laid-off employees.
I. THE ALLEGED UNLAWFUL UTTERANCES
The General Counsel alleges that various Daikichi supervi-
sors and a consultant to Daikichi violated Section 8(a)(1) by:

• Because of employees’ membership in, activities on be-
half of and sympathy for the Union, threatening the em-
ployees with more onerous working conditions, with
discharge, with loss of jobs, with blacklisting, with plant
closure or relocation, with sale of the Company’s busi-
ness operations, and with unspecified reprisals.

• Directing employees not to vote for the Union and to re-
frain from attending union meetings, from joining the
Union, from speaking to representatives of the Union,
and from seeking the assistance of the Union.

• Promising employees pay increases and other benefits to
induce them to abandon their support for the Union.

• Interrogating employees concerning their membership
in, activities on behalf of, and sympathy for the Union.

• Informing employees that it would be futile for them to
select the Union as their collective bargaining represen-
tative.

• Creating the impression among its employees that it was
keeping under surveillance their activities on behalf of
the Union.

The General Counsel’s contentions about the various super-
visors’ and the consultant’s alleged unlawful remarks depend
almost entirely on the credibility of six witnesses called by the
General Counsel: Mohammed Based, Aporna Deb, Christopher
Gomes, Kazi Rahman, Mohammed Rahman, and Mohammed
Zaman.4 I have concerns about the accuracy of much of their
testimony. Most importantly, their understanding of English
was at best hit or miss, a problem of considerable significance
since, with the exception of but one individual, the Daikichi
agents and supervisors who allegedly uttered the unlawful re-
marks spoken in English.5 Additionally, the only language of
relevance to us here in which the six witnesses were fluent was
Bengali even though Bengali was by no means the only lan-
guage spoken by Daikichi employees. (Spanish and Chinese
were also commonplace.) Accordingly, hearing only from
Bengali-speaking employees left me with the uncomfortable
feeling of being presented with only a narrow and potentially
distorted slice of the full picture.
A. The Speech of a California-Based Daikichi Official
General Counsel’s witnesses Christopher Gomes, Moham-
med Based, and Kazi Rahman testified that sometime in March
(that is, in the midst of the Union’s campaign), in the middle of
the day shift, the facility’s supervisors ordered the employees to
gather for talk by a California-based Daikichi official. Kazi
Rahman testified that the official described himself as Daiki-
chi’s president. None of the three remembered being told the
official’s name. (Other testimony, however, indicates that Dai-
kichi’s president is a Mr. Watanabe.)
Gomes credibly testified that this official “immediately on
arrival . . . told Mr. Saito [head of the central kitchen] to go
away, then he told Mr. Dipu [and] Mr. Lu [lower-level supervi-
sors] to go away from the scene and he said, ‘I will talk to the
employees myself.’” According to Gomes, this official, speak-
ing English (sometimes without translators being present,
sometimes with them), told the employees that—

I don’t want you guys to join the union. After all, why should
you join the union? And you know that already four of the
people have been fired for joining the union so why should
you follow their footsteps and endanger your career or job . . .
we could give you better raise and better payment, I find no
reason [for you] to join the union.

Based testified that this same official spoke of three central
kitchen employees who had joined the Union and, because of
that, were fired. According to Based, the official went on to say:

[L]ook, this is an example for you guys. These three have
been fired, so if anybody else joins the union now, they will
all be fired . . . we will give you a raise and if we give you a
better raise, then what is the point of your joining the union?
So don’t join the union, stay with us and you’ll get a raise.

There is something ghost-like about this speech. Consider
that only three witnesses testified about Watanabe and his talk
even though about 50 employees were said to have been pre-
sent, and two of these three (Gomes and Based) did not even
claim to know either his name or his position with Daikichi.
Further, for the reasons discussed above I do consider any of
the three to be wholly credible witnesses. (The affidavit a
Board agent took from Kazi Rahman says nothing whatever
about a presentation by Daikichi’s president; indeed, much of
Rahman’s testimony conflicts with or is unsupported by his
affidavit.)
On the other hand: none of Daikichi’s witnesses denied that
such an event occurred or otherwise had anything to say about
the event; and Daikichi’s counsel chose not to cross-examine
either Gomes or Based about it.
I have therefore decided to credit Gomes’, Based’s, and Kazi
Rahman’s testimony that Daikichi’s president, Watanabe, gave
a speech to the employees in March 1997 and to find that in
that speech Watanabe said something along the lines of:

You know that four Daikichi employees have been fired for
joining the Union. Don’t follow in their footsteps. Don’t join
the Union and endanger your job. Stay with us and you’ll get
the raise that you want.

Daikichi thereby violated Section 8(a)(1) of the Act. E.g.,
County Window Cleaning Co., 328 NLRB 190 (1999) (promise
of benefits; NLRB v. Neuhoff Bros., Inc., 375 F.2d 372) (5th
Cir. 1967) (threats of discharge for union activity).
DAIKICHI SUSHI 629
B. The Labor Consultant’s Advice
After the Teamsters filed its election petition, Daikichi re-
tained the services of a labor consultant, Edwin Colon, to assist
Daikichi’s East Coast management in the Company’s effort to
keep the facility nonunion. Colon’s work included several inter-
related tasks: (1) instructing supervisors on what the Act for-
bids them to say to employees and what it allows; (2) recom-
mending to management strategy and tactics for convincing
employees not to support the Union, including recommending
reading material that the Company should hand out to employ-
ees and topics that supervisors should cover in talks to employ-
ees; and (3) speaking directly to employees about why they
should not support the Union.
Much of what Colon said—both to management and directly
to employees—was entirely commonplace. For example: that
union membership dues are costly and that as a result of collec-
tive-bargaining employees might end up better off, but they
might also find themselves in a worse position. But Colon pro-
posed two lines of argument that are of particular significance.
The record does not provide us with Colon’s precise words. But
it appears that Colon suggested that supervisors tell employees
that unionization had caused some employers to shut down.
Also, Colon urged supervisors to tell employees that Daikichi
had “a right to close the plant for economic reasons.” So if
Daikichi’s New York operations ceased being profitable be-
cause unionization caused the costs of those operations to rise
to the extent that the Company’s prices could no longer be
competitive, the employees were to be informed, Daikichi
“could sell, it could go out of business, it could merge [or] it
could downsize” (to quote from Colon’s testimony). The sig-
nificance: for employees whose understanding of English is
limited, it must have been easy to misunderstand these argu-
ments, hearing them as threats that Daikichi would close the
New York operations if the employees voted to be represented
by a union. I conclude that this is in fact what happened, and
accordingly (with one exception to be discussed below) I do not
credit the General Counsel’s witnesses’ testimony that either
Colon or any of the Company’s East Coast officials threatened
employees with plant closure or discharge.
Colon’s role in this proceeding is important primarily be-
cause his instructions form the backdrop to various utterances
by Daikichi supervisors, Saito, Dipu, and Lu. Colon did speak
directly to employees, and the General Counsel alleges that
many of his utterances violated Section 8(a)(1). But I credit
Colon’s testimony about what he told employees and conclude
that nothing he said violated the Act.6

6 Several of the General Counsel’s witnesses testified about talks
given by a Daikichi lawyer. The record is clear that in fact the wit-
nesses were referring to Colon. During the course of the hearing Colon
stated that he always ensures that he abides by the Act’s requirements,
that he urges his clients to do the same, and that even though he has
participated on behalf of management in many election campaigns,
there is no reference to him as a wrongdoer in any of the Board’s deci-
sions. That appears to be correct, although management’s efforts in an
election campaign in which he apparently participated (as a consultant
to management) produced numerous violations of the Act. See
Grimmway Farms, 314 NLRB 73, 84 (1994).
C. Supervisors Wahab Abdul, Fumio Saito,
Hisato Baba, and Kien Vi Lu7
Wahab Abdul (Dipu). At all relevant times until December
1997 Daikichi employed a first-line supervisor named Wahab
Abdul. Everyone called him Dipu. (In December 1997, Dipu
left Daikichi without notice. He later asked to return, but Daiki-
chi turned him down. Neither the General Counsel nor Daikichi
sought to call Dipu as a witness.)
Like all of the witnesses called by the General Counsel (four
of whom constitute the Charging Parties in this proceeding),
Dipu had emigrated to the United States from Bangladesh.
Dipu figures prominently in this proceeding both for the re-
marks he allegedly made to employees and for his work as an
interpreter: He translated into Bengali many of management’s
anti-union speeches.
Dipu was a friend of several of the General Counsel’s wit-
nesses and on occasion met with them in social gatherings
away from Daikichi’s facility at which they discussed, among
other things, the Union and the election.
Fumio Saito. Daikichi’s kitchen manager on the East Coast
is Fumio Saito. He heads Daikichi’s Long Island City facility.
Prior to the election campaign, Saito called employees to 8 a.m.
meetings once or twice a week at which he spoke of various
matters related to the facility’s operations. Starting not long
after the Union filed its election petition, Saito doubled or tri-
pled the number of times he met with employees each week
and, at those meetings, tried to make the points that Colon had
urged on him.
Saito’s first language is Japanese. He is not altogether com-
fortable speaking English. Nonetheless he spoke in English at
these meetings. As I have already discussed, on the employees’
part many of them spoke and understood English only to a lim-
ited extent and only with great difficulty. Accordingly, Dipu
translated into Bengali what Saito purportedly said. In other
words, the General Counsel’s witnesses, who spoke English
only poorly, testified about what they thought they heard being
said in English by the kitchen manager whose primary language
was Japanese and about what Dipu, speaking in Bengali, told
them what he understood of Saito’s attempts at antiunion
speeches in English.
I found Saito to be a credible witness. But it is not clear to
me that what he intended to communicate to Daikichi’s em-
ployees (the arguments taught to him by Colon) and what he in
fact did say in English always coincided.
Hisato Baba. Baba is Daikichi’s general manager for its East
Coast operations. As with Saito, Baba’s first language is Japa-
nese. He does not speak English fluently. I found Baba to be a
credible witness.
Kien Vi Lu. At all relevant times Lu was a first-line supervi-
sor at the Long Island City facility, except that he ceased work-
ing for Daikichi before the election. Lu spoke English and Chi-
nese. (Neither the General Counsel nor Daikichi sought to call
Lu as a witness.) The General Counsel alleges that Lu uttered
numerous remarks that violated Section 8(a)(1) of the Act.
7 All parties agree that these four individuals were supervisors within
the meaning of Sec. 2(11) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 630
Lu is fluent in Chinese (and he translated the speeches of
other supervisors and of Colon into Chinese for the benefit of
employees who spoke only that language). But he does not
speak Bengali. Thus his conversations with the employees who
testified in this proceeding—none of whom speak Chinese—
were entirely in English.
My findings about the supervisors’ unlawful utterances.
Having considered the record, including such matters as which
witnesses’ statements were corroborated and which were not,
the nature of Colon’s instructions to the supervisors, the likely
inability of the General Counsel’s witnesses to entirely com-
prehend much of what was said to them in English, the kinds of
misunderstandings most likely to have arisen as the Bengali
employees listened to antiunion speeches in English, and
obvious inaccuracies in witnesses’ testimony even about what
was said to them in Bengali, I find that on this record it is
more likely than not that Daikichi’s supervisors made these
unlawful utterances, and only these (in addition to those that
Watanabe made):

• Saito told a group of bargaining unit employees, during
the election campaign, that Daikichi would be unable to
continue its East Coast operation if the employees voted
in favor of union representation because Daikichi would
lose its ability to compete successfully.

• When Daikichi began providing transportation between
the central kitchen and a nearby subway station, em-
ployee Deb asked Dipu why the Company was doing
this. Dipu responded:

This is for two reasons. One is for your safety,
your security. And the other reason is so that no
members of the union can approach the employ-
ees, to come to you and talk to you. They [man-
agement] want the employees to avoid the union
people and that’s why they would like to drop
you from work to the subway station.8

• Lu told employee Mohammed Rahman that “it’s an
open secret that you’ve joined the Union.”

See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 620
(1969) (threats of closure); Syncor International Corp., 324
NLRB 8 (1997) (impression of surveillance); Hearst Corp., 281
NLRB 764 (1986), enfd. mem. 837 F.2d 1088 (5th Cir. 1988)
(employees “warned . . . to keep away from officers and sup-
porters” of the Union).
I find that the record fails to prove that any Daikichi super-
visor or other Daikichi agent made any other utterance that
violated Section 8(a)(1) of the Act.
II. DAIKICHI’S CONTRACTING OUT OF ITS “HOT
KITCHEN” WORK
Daikichi’s central kitchen includes a “hot kitchen” area
where rice is cooked and items that Daikichi refers to as
“noodle toppings”—such as shrimp tempura and fried
chicken—are prepared. The hot kitchen is in a room separate

8 The General Counsel contends that Baba made a similar remark. I
do not find that to be the case.
from the rest of the central kitchen’s food preparation area.
Until late August (1997) about 8 of Daikichi’s 60 or so cen-
tral kitchen employees worked in the hot kitchen.
The rice is cooked in a massive semi-automated machine
that produces about 300 pounds of rice per hour. Two of the
eight employees were assigned as full-time operators of the
rice cooker, and a few other hot kitchen employees operated
the rice cooker on an as-needed basis.
Daikichi first began using the rice cooker in late 1994
(when Daikichi’s central kitchen was at another location). By
1996 customers were complaining about the rice in Daikichi’s
sushi. Sometimes it was cooked too much, sometimes not
enough. Sometimes the rice was watery, sometimes too hard.
Daikichi’s management believed that the problem, which
appeared to be getting worse, stemmed from both a lack of
expertise of its personnel in knowing how to best operate the
cooker and in Daikichi’s inability to find anyone competent to
keep the cooker properly maintained. Needless to say, since
rice makes up a considerable proportion of almost all sushi, it is
no small matter when a sushi seller is unable to consistently
produce tasty rice.
On the West Coast, Daikichi does not itself prepare the rice
that it needs. Rather, since the late 1980s Daikichi has pur-
chased all of the rice it uses on the West Coast from a company
called California Rice Center (CRC) which, in turn, prepares
the rice in commercial cookers akin to the one in Daikichi’s
East Coast central kitchen, but even larger.
In April—almost surely after the election—Daikichi’s man-
agement began discussions with CRC with a view to having
CRC take over, as a contractor, the Long Island City facility’s
hot kitchen operations, including the operation of the rice
cooker.
In late May or early June those discussions produced an
agreement. The result: Beginning on August 29, CRC, after
something less than 2 months of preparatory activity (including
training one of its supervisors and hiring employees), staffed
and operated the hot kitchen part of Daikichi’s central kitchen,
selling all of its output to Daikichi.
Concomitantly, on August 28 and 29 Daikichi permanently
laid off all of its eight employees then working in the hot
kitchen: the four Charging Parties in this proceeding (Moham-
med Rahman, Mohammed Based, Kazi Rahman, and Aporna
Deb); the two other employees who testified on behalf of the
General Counsel (Mohammed Zaman and Christopher Gomes);
and two other employees about whom the record tells us virtu-
ally nothing.
At the time of their layoffs, all six of the employees who tes-
tified on behalf of the General Counsel asked Baba (Daikichi’s
general manager for East Coast operations) that Daikichi retain
them as employees elsewhere in the central kitchen. Baba told
them that there were no job openings. Baba did, however, give
them Daikichi job application forms containing handwritten
changes so as to indicate that the forms were for application to
CRC. But none of the six employees sought employment by
CRC. Nor did the employees ever seek re-employment by Dai-
kichi.
The General Counsel contends that it was Daikichi’s union
animus that was behind the Company’s decision to contract out
DAIKICHI SUSHI 631
its hot kitchen work and to lay off, permanently, its hot kitchen
employees.
A. Evidence Supporting the General Counsel’s Contention
that the Contracting Out was Motivated by Antiunion
Considerations
At least six of the eight hot kitchen bargaining unit employ-
ees signed union authorization cards (the six employees called
by the General Counsel as witnesses). And it is probable that
Daikichi knew that. (Deb’s rejection of the Company’s prof-
fered transportation would have led Dipu to suspect her of pro-
union sentiments. And I got the impression that Based and Kazi
Rahman had free-wheeling conversations with Dipu about the
Union in which those two employees made their prounion posi-
tions clear and likely spoke of the positions on unionization of
other employees, particularly Bengali-speaking employees.)
As for union animus, we have seen that in a speech to the
central kitchen’s employees during the Union’s campaign, Dai-
kichi President Watanabe said something like:

You know that four Daikichi employees have been fired for
joining the Union. Don’t follow in their footsteps. Don’t join
the Union and endanger your job.

As for Daikichi’s problems with the rice cooker:

1. Those problems had begun in 1996. Years earlier
Daikichi and CRC had discussed the possibility of CRC
providing cooked rice for Daikichi’s East Coast opera-
tions. But those talks had not bome [sic] fruit. Daikichi did
not again consider the contracting out until after the Un-
ion’s campaign began. Then, within weeks of the election
in which the central kitchen’s employees voted in favor of
unionization, Daikichi began talking to CRC about CRC
taking over the hot kitchen work. Daikichi and CRC
reached agreement a month or two after the election.
2. Daikichi did not contract out just the operation of
the rice cooker, but instead contracted out the operation of
the entire hot kitchen. On the West Coast Daikichi obtains
all of its cooked rice from CRC. But cooked rice is all that
Daikichi’s West Coast outlets get from CRC, and CRC
prepares the rice at facilities entirely separate from Daiki-
chi’s. There is no precedent, that is to say, for Daikichi
having CRC use Daikichi’s own facilities for the prepara-
tion of food or for Daikichi getting its noodle toppings
from CRC.

Additionally, Daikichi made no attempt to find other em-
ployment within the Company for the hot kitchen employees,
either before or after the contracting out. Yet: (1) Daikichi does
not contend that any of the laid-off employees are poor work-
ers; (2) all had central kitchen experience with Daikichi apart
from their hot kitchen work; (3) two of these employees had
been with Daikichi for more than a year (Based and Deb), and
one had been with Daikichi more than 3 years (Kazi Rahman);
and (4) there is substantial turnover among Daikichi’s central
kitchen staff.
B. Evidence Supporting Daikichi’s Contention that Union Ani-
mus Played no Part in the Company’s Decision to Contract Out
the Hot Kitchen Work
First, while Daikichi’s president is sufficiently antiunion to
threaten employees that prounion employees would be fired,
that does not necessarily mean that management was in fact
willing to base operational decisions on what its employees’
views were about unionization. And a partial shutdown of two
of Daikichi’s nonunion facilities suggests that management did
not permit union issues to play a significant role in such mat-
ters. Recall that on April 7, 1997, the central kitchen employees
voted in favor of representation by the Union. At the time, two
of Daikichi’s East Coast outlets still had their own kitchens.
The employees of neither of these stores were unionized. None-
theless, in May Daikichi closed both of these stand-alone kitch-
ens, laying off eight or nine employees in the process. Thereaf-
ter these two stores, along with all of Daikichi’s other East
Coast stores, got their sushi and other prepared foods from the
now unionized central kitchen, to that extent strengthening the
Union’s position.
Second, as of the spring of 1997: (1) Daikichi was having
problems with the quality of its East Coast rice and noodle
toppings; (2) with respect to the rice, at least, these problems
were getting worse; (3) Daikichi had a longstanding business
relationship with CRC (on the West Coast) and was aware that
CRC has considerable expertise in the preparation of both rice
and noodle toppings; (4) Daikichi’s East Coast sales were in-
creasing and were expected to increase still further, putting
additional pressure on the central kitchen.
Third, nothing in the record suggests that the hot kitchen
employees as a group were any more prounion than the central
kitchen employees generally. Similarly, while all of the ex-hot
kitchen employees whom the General Counsel called as wit-
nesses were prounion, their support for the Union was limited
to signing union authorization cards and, for some but not all of
the six, attending a union meeting or two.
Fourth, as for Daikichi’s failure to shift at least some of the
hot kitchen employees to other jobs prior to CRC taking over
the hot kitchen operations, management had decided to keep
the contracting out a secret until the day CRC began its opera-
tions. While that might lead one to grade Daikichi something
less than A+ in human resources management, there is nothing
suspicious about the decision to proceed that way. And having
made that decision, it is unremarkable that Daikichi did not
switch any of the hot kitchen employees to other jobs prior to
CRC’s entry.
C. Daikichi’s Contracting Out the Hot Kitchen
Work—Conclusion
For some considerable period of time Daikichi’s hot kitchen
suffered from quality problems. Yet Daikichi did little to deal
with the problems. When the union campaigned to represent
Daikichi’s central kitchen employees, Daikichi’s president
threatened that the Company would fire employees who sup-
ported the Union and Daikichi’s East Coast kitchen manager
said that unionization would lead to the sale or closure of the
facility. Then, within weeks after the employees voted in favor
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 632
of unionization, Daikichi entered into a contract to have CRC
take over the hot kitchen work.
But I credit Saito in his denial that he intended to threaten
employees with the sale or closure of the facility, Daikichi’s hot
kitchen problems were getting worse, Daikichi had previously
looked into having CRC handle its hot kitchen work, business
firms routinely take months before arriving at a decision as
significant as contracting out a significant part of their opera-
tion, and the record fails to show that Daikichi’s animus was
such that the Company would permit its antiunion views to
interfere with whether and how it made operational changes.
As I am about to discuss in part III, Daikichi’s failure to re-
call the laid-off employees probably was a result of its union
animus. And that, in turn, surely is a factor to take into account
in determining why Daikichi contracted out it hot kitchen op-
eration. But having done so, I remain of the view that: (1) the
General Counsel has failed to prove that the contracting out
was motivated by union animus, even in part; and (2) even
assuming that the record should be read as showing that the
contracting out was at least partially a function of union ani-
mus, Daikichi proved that it would have contracted out its hot
kitchen operations even absent the union animus.
III. DAIKICHI’S FAILURE TO RECALL THE LAID-OFF
EMPLOYEES
As touched on earlier in this decision: on August 28 and 29
Daikichi permanently laid off all eight of its employees then
working in the hot kitchen, including Based, Deb, Gomes, the
Rahmans, and Zaman, all of whom, as Daikichi probably knew,
supported the Union; at the time of their layoffs, these six em-
ployees made clear their interest in continuing to work for Dai-
kichi; all six had experience with Daikichi apart from their hot
kitchen work; and in the months following the layoffs Daikichi
continued to hire new employees. (In September alone, Daiki-
chi hired six new employees to do bargaining unit work in the
central kitchen.)
On its part, Daikichi gave no explanation whatever about
why it hired new employees rather than recalling the laid-off
employees.
There is much that the record does not tell us. For example,
we do not know whether Daikichi ever recalls employees from
layoff. There is no evidence about whether the new employees
had experience relevant to the work for which Daikichi hired
them. We don’t know whether any of the new employees had a
history of prounion activity (and, if so, whether Daikichi’s
management knew about it). And there is no direct evidence
that the prounion stance of the six employees had anything to
do with Daikichi’s failure to recall them. (For example, there is
no credible evidence that anyone from management said any-
thing to the employees suggesting that their support for the
union was a factor in their layoffs.)
Notwithstanding all these evidentiary gaps, I conclude that it
is more probable than not that Daikichi hired newcomers, rather
than recalling Based, Deb, Gomes, the two Rahmans and
Zaman, because of these six employees’ support for the Union.
I reach that conclusion because of three considerations. First,
Daikichi’s president threatened employees with discharge if
they joined the Union. Second, I infer that, all other consider-
tions held equal, employers proceed on the assumption that
“seasoned men are better than green hands.” NLRB v. Reming-
ton Rand, Inc., 94 F.2d 862, 872 (2d Cir. 1938) (L. Hand, J.).
And third, Daikichi provided no reasons why it preferred new-
comers even though “those reasons lay exclusively within its
own knowledge.” (Id.)
I have taken into consideration that the employees failed to
follow through on Daikichi’s suggestion that they apply for
jobs with CRC. But the record provides no reason to suppose
that Daikichi’s failure to recall the employees was related to the
employees’ unwillingness to apply for jobs with CRC. In addi-
tion there is no indication that, at the time of the layoffs, CRC
had any job openings. I have also taken into consideration that
none of the six employees subsequently sought reemployment
with Daikichi. But Daikichi knew that the employees wanted to
continue as Daikichi employees. And the manner in which
Daikichi laid them off discouraged application for reemploy-
ment.
I accordingly find that a reason that Daikichi did not recall
bargaining unit employees Based, Deb, Gomes, Zaman, Kazi
Rahman, and Mohammed Rahman from layoff was their sup-
port for the Union. I further find that Daikichi has failed to
show that it would have refrained from recalling the laid-off
employees even absent its union animus. Daikichi thereby vio-
lated Section 8(a)(3) of the Act. E.g., N. D. Peters & Co., 327
NLRB 922 (1999).
IV. DAIKICHI’S AFFIRMATIVE DEFENSES
A. Section 10(b)
Although Daikichi referred to Section 10(b) in its answer,
the Company did not refer to it on brief and thus it is not clear
that the Company is pursuing this defense.
The earliest charge against Daikichi was filed on September
9, 1997. It alleged that Daikichi fired Based in August because
of his union activities. Mohammed Rahman filed a comparable
charge covering him, Gomes, and Zaman on September 11.
Deb’s charge followed on September 16. The first charge that
alleged an unlawful utterance was filed on September 23. The
allegation there was that management unlawfully interrogated
Kazi Rahman in May 1997.
The complaint’s theory is that management discriminated
against six employees in August because of the employees’
support for the Union during the election campaign in March
and April, a campaign in which management expressed its un-
ion animus via threats and other unlawful utterances. My con-
clusion is similar except that I have found that the discrimina-
tion (by way of refusals to recall) did not begin until Septem-
ber. The point of both the complaint and my conclusion, that is
to say, is that the 8(a)(1) utterances and the 8(a)(3) discrimina-
tory conduct arose out of the “same sequence of events” (to
quote Redd-1, Inc., 290 NLRB 1115, 1116, 118 (1988)), and
are “factually related” (Harmony Corp., 301 NLRB 578
(1991)). On the other hand, it is hard to think of the election
campaign—which ended in early April—as falling within “the
DAIKICHI SUSHI 633
same time period” as the August layoffs and the subsequent
refusals to recall the employees (to again quote from Redd-1.) 9
Fortunately I need not determine whether the first three
charges filed in this proceeding support the utterances that I
have found violated Section 8(a)(1). That’s because the Sep-
tember 23 charge, referring to an 8(a)(1) interrogation in May
1997, surely encompasses threats and suggestions of surveil-
lance during the March–April election campaign. Accordingly,
10(b)’s 6-month limitation provides no defense to threats made
on and after March 23. As for whether any of the utterances I
have found to be unlawful were made before March 23, it was
up to Daikichi to prove that. E.g., NLRB v. J & S. Drywall, 974
F.2d 1000, 1004 (8th Cir. 1992). 10 Daikichi failed to carry this
burden.
B. Prior Settlement Agreement
Daikichi’s answer contends that “certain of the General
Counsel’s allegations are improperly included in the Consoli-
dated Complaint because they were the subject of a prior Set-
tlement Agreement.” But Daikichi proffered no information
about the settlement agreement either at the hearing or on
brief.”11
REMEDY
Daikichi lawfully laid off Mohammed Based, Aporna Deb,
Christopher Gomes, Kazi Rahman, Mohammed Rahman, and
Mohammed Zaman when it contracted out its hot kitchen work.
But even though the jobs at which the six employees were
working at the time of their layoff no longer exist, other central
kitchen jobs do, jobs for which the six employees are qualified;
and I have found it to be more probable than not that it was for
reasons of union animus that Daikichi failed to recall them to
fill those jobs as positions in the central kitchen came open. I
accordingly shall recommend that Daikichi be ordered to offer
full and immediate reinstatement to Based, Deb, Gomes, the
two Rahmans, and Zaman, to positions in the central kitchen
and to make them whole for any loss of earnings and other
benefits that they suffered as a result of Daikichi’s failure to
recall them. Determination of the date on which each of the six
employees would have been recalled but for Daikichi’s viola-
tion shall be left to the compliance stage. Loss of earnings and
benefits shall be computed on a quarterly basis, less any interim
net earnings, as prescribed in F.W. Woolworth Co., 90 NLRB
289 (1950), plus interest to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12

9 Compare Harmony Corp., supra, in which the unlawful utterances
and the discriminatory action occurred within a few weeks of one an-
other.
10 Denying enforcement on other grounds to 303 NLRB 24 (1991).
11 Daikichi also contends, by way of a third affirmative defense, that
the utterances that were in part I of this decision I concluded were
unlawful “were protected by Section 8(c) of the Act and the First
Amendment to the U.S. Constitution.”
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
ORDER
The Respondent, Daikichi Corp., d/b/a Daikichi Sushi,
Long Island City, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge if they join
Teamsters Local 295 or any other union.
(b) Promising employees improved compensation in order
to discourage them from engaging in union or other protected
concerted activity.
(c) Threatening employees with plant closure should the
employees vote in favor of union representation.
(d) Telling employees that the Company’s management
wants employees to avoid union representatives.
(e) Creating the impression that the union activities of its
employees were under surveillance.
(f) Failing to recall employees from layoff because of their
support for Teamsters Local 295 or any other union.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Mo-
hammed Based, Aporna Deb, Christopher Gomes, Kazi Rah-
man, Mohammed Rahman, and Mohammed Zaman, full rein-
statement to positions in the Company’s central kitchen,
without prejudice to their seniority or other rights or privi-
leges previously enjoyed.
(b) Make Mohammed Based, Aporna Deb, Christopher
Gomes, Kazi Rahman, Mohammed Rahman, and Mohammed
Zaman whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in the
manner set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful failures to recall,
and within 3 days thereafter, notify the employees in writing
that this has been done and that the failures to recall will not
be used against them in any way.
(d) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
cards, 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 due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at its
central kitchen facility in Long Island City, New York, copies
of the attached notice marked “Appendix.”13 Copies of the
notice, on forms provided by the Regional Director for Region

adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 634
No. 29, after being signed by a representative of Daikichi, shall
be posted by Daikichi and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Daikichi shall take reason-
able steps to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, Daikichi has gone out of busi-
ness or closed the facility involved in these proceedings, Daiki-
chi shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by Daikichi at any time since March 23, 1997.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Daikichi has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
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 the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT threaten that we will fire you if you join
Teamsters Local 295 or any other union.
WE WILL NOT promise you better pay or benefits in order
to discourage you from engaging in union or other protected
concerted activity.
WE WILL NOT threaten you with plant closure for voting
in favor of union representation.
WE WILL NOT tell you that we want you to avoid union
representatives.
WE WILL NOT say anything that creates the impression
that your union activities are under surveillance.
WE WILL NOT fail to recall employees from layoff be-
cause of their support for Teamsters Local 295 or any other
union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights that Sec-
tion 7 of the Act guarantees to you.
WE WILL offer Mohammed Based, Aporna Deb, Christo-
pher Gomes, Kazi Rahman, Mohammed Rahman, and Mo-
hammed Zaman full reinstatement to positions in our central
kitchen, without prejudice to their seniority or other rights or
privileges they previously enjoyed.
WE WILL make Mohammed Based, Aporna Deb, Christo-
pher Gomes, Kazi Rahman, Mohammed Rahman, and Mo-
hammed Zaman whole for any loss of earnings and other
benefits suffered as a result of our discriminatory failure to
recall them, less any interim earnings, plus interest.
WE WILL, within 14 days of the Board’s Order, remove
from our files any reference to our unlawful failures to recall
Mohammed Based, Aporna Deb, Christopher Gomes, Kazi
Rahman, Mohammed Rahman, and Mohammed Zaman, and
WE WILL, within 3 days thereafter, notify them, in writing,
that this has been done and that our failure to recall them will
not be used against them in any way.

DAIKICHI CORP. D/B/A DAIKICHI SUSHI