Dickens Inc.

National Labor Relations Board - Board Decisions

May 26, 2011

356 N.L.R.B. 1298 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1298
Dickens, Inc. and Wenquing Lin. Cases 29–CA–
29080, 29–CA–29198, and 29–CA–29254
May 26, 2011
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
On June 10, 2010, the National Labor Relations Board
issued a decision in this case,1 affirming Administrative
Law Judge Raymond P. Green’s finding that Respondent
Dickens, Inc. (Dickens) had violated Section 8(a)(1) of
the Act by falsely accusing employee Wenquing Lin of
stealing and assault and by calling the police to harass
him because of his protected conduct (Lin had prevailed
in a prior unfair labor practice proceeding against the
Respondent). The Board also affirmed the judge’s find-
ing that the General Counsel had shown that protected
activity on the part of Lin and Miaona Wu (who had co-
operated with the Region’s investigation of the prior case
involving Lin) was a substantial or motivating factor in
Dickens’ decision to select Lin and Wu for layoff.2
However, the Board found that Dickens had presented
some evidence that Lin’s and Wu’s lack of facility in
English was one reason for their layoffs, and therefore
that the judge had erred by finding that Dickens had not
presented any evidence tending to demonstrate that it
would have taken the same action absent Lin’s and Wu’s
protected activity.3 Accordingly, the Board remanded
the complaint allegations concerning the layoffs of Lin
and Wu to the judge for him to assess that evidence and
determine whether Dickens had met its rebuttal burden.
On July 16, 2010, Judge Green issued the attached
supplemental decision.4 Judge Green assessed the evi-
dence in question and found that Dickens had not met its
rebuttal burden. Accordingly, he reaffirmed his prior
findings that Dickens violated Section 8(a)(1) by laying
off Lin and Section 8(a)(1) and (4) by laying off Wu.
Dickens filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
1 355 NLRB 255.
2 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. on other grounds
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
3 Wright Line, above, 251 NLRB at 1089.
4 In discrediting James Chou’s testimony, the judge inadvertently
stated that “I do rely on it for any purpose.” In context, it is clear that
the judge meant to say “I do not rely on it for any purpose.” We correct
the error.
The Board has reviewed the supplemental decision and
the record in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings,5 and con-
clusions and to adopt the relevant portions of the judge’s
recommended Order, as modified and set forth in full
below.6
ORDER
The National Labor Relations Board orders that the
Respondent, Dickens, Inc., Commack, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying employees off because of their protected
concerted activity of seeking higher wages or better
terms and conditions of employment.
(b) Laying employees off because they cooperate with
the National Labor Relations Board or furnish affidavits
to Board agents during its proceedings.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed 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
Wenquing Lin and Miaona Wu 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 en-
joyed.
(b) Make Wenquing Lin and Miaona Wu whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, in the manner set
forth in the remedy section of the judge’s initial decision
as amended in this decision.
5 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 preponder-
ance 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.
6 The judge described Dickens’ treatment of Lin and Wu as both
layoffs and discharges. The record indicates that the actions are more
aptly described as layoffs. We shall modify the judge’s recommended
Order and notice accordingly. We shall also modify the judge’s notice
to conform to the Board’s standard remedial language.
We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
Finally, in accordance with our decision in Kentucky River Medical
Center, 356 NLRB 6 (2010), we shall modify the judge’s recommended
remedy by requiring that backpay shall be paid with interest com-
pounded on a daily basis.
356 NLRB No. 165

DICKENS, INC. 1299
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful layoffs, and
within 3 days thereafter, notify the employees in writing
that this has been done and that the layoffs will not be
used against them in any way.
(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 rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic 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 Commack, New York facility, copies of the attached
notice, in English, Cantonese, Mandarin, and Spanish,
marked “Appendix.”7 Copies of the notice, on forms
provided by the Regional Director for Region 29, after
being signed by the Respondent’s authorized representa-
tive, 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,
notices shall be distributed electronically, such as by e-
mail, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the penden-
cy of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since June 9, 2008.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 29 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
7 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.”

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
activities.

WE WILL NOT lay off or otherwise discriminate against
any of you for engaging in the protected concerted activi-
ty of seeking better pay or better working conditions.
WE WILL NOT lay off or otherwise discriminate against
any of you because you cooperate with the National La-
bor Relations Board or furnish affidavits to the Board’s
agents during its proceedings.
WE WILL NOT in any other manner interfere with, re-
strain, 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 Wenquing Lin and Miaona Wu full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Wenquing Lin and Miaona Wu whole
for any loss of earnings and other benefits resulting from
their layoffs, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoffs of Wenquing Lin and Miaona Wu, and WE
WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the layoffs will
not be used against them in any way.

DICKENS, INC.

Henry Powell, Esq., for the General Counsel.
James Chou, for the Respondent.
SUPPLEMENTAL DECISION
RAYMOND P. GREEN, Administrative Law Judge. On June
10, 2010, the Board, at 355 NLRB 255, issued a Decision that
remanded certain matters for further consideration. In pertinent
part, the Board stated that it agreed that the General Counsel
showed that Lin’s and Wu’s protected activity was a substantial
or motivating factor in the Respondent’s decision to select them
for layoff and that the burden of proof shifted to the Respond-
ent to prove that it would have taken the same action even
absent their protected activity. However, the Board concluded
that I did not sufficiently consider whether the Respondent had

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1300
met its burden of sustaining its contention that it “selected Lin
and Wu for layoff at least in part because of their lack of facili-
ty in English.”
I conclude that the Respondent has not met its burden for the
following reasons.
1. In my opinion, Chou’s testimony was not credible. Alt-
hough he was given the opportunity to testify as to the reasons
for his decision to lay off the two discriminates, his testimony
was so marred by incoherence and irrelevancies that I do rely
on it for any purpose.
2. By a letter to the NLRB’s Regional Office dated Decem-
ber 29, 2008,1 Chou reviewed his experiences in the prior case
and responded to new unfair labor practice charges that had
been filed. Among other things, he attached a letter to the Re-
gional Office dated June 20, 2008, where he asserted that be-
cause business was down, he was going to have to reduce his
work force in the warehouse. Chou stated inter alia:

As shown on the attached list, currently we have 15 people
working in the warehouse and we are planning to cut down at
least 6 people immediately. Based on employee performance
and the company’s need, Mr. Wenquing Lin and Ms. Miaona
Wu are in the list to be laid off and they are involved in a
pending case with the NLRB.

Please let us know if we are not allowed to lay off Mr. Lin or
Ms. Wu. We are also more than happy to meet you to answer
your questions. We have had enough problems with the
NLRB and we are not looking for extra troubles.

As an attachment to a letter sent to the Regional Director
dated October 16, 2008, Chou submitted a spreadsheet, listing
all of his warehouse employees, setting forth their job duties
and his opinion of their performance. Wu was ranked in this
chart as the lowest performing employee.
Respondent’s Exhibit 2, consisting of multiple emails and
letters (with attachments), between Chou and personnel in the
Brooklyn Regional Office are out-of-court statements and
therefore constitute hearsay for the truth of the matters asserted,
if offered for that purpose by the Respondent. This exhibit was
received in evidence, in part, because Chou wanted to demon-
strate his alleged persecution by the Regional Office and it was
easier to receive the documents than to fight him on an eviden-
tiary issue that he did not understand. The bottom line is that
the letters, emails, and attached documents that were submitted
by Chou to Region 29 in the course of the investigation are not
substitutes for actual evidence that must be presented in any
subsequent trial. Any assertions made by Chou in these letters
and attached documents do not constitute competent evidence
in support of his contention that Wu and Lin were laid off or
terminated for good cause. And in this connection, I specifical-
ly advised Chou that when he gave his testimony, he should
testify as to the reasons why he laid off Wu and Lin.
1 This is R. Exh. 2. This is a letter explaining his position to the Re-
gional Office and contains a large number of attachments.
3. Although Chou testified under oath, without interruption
by either the General Counsel or me for 4 hours, he never once
stated during his testimony that the reason he chose Lin or Wu
for layoff was because they had difficulty with the English
language. In fact, he didn’t even describe any reasons why he
laid off either individual.
4. The fact that Wu conceded that Chou told her on the day
of her layoff that he had selected her because she could not
speak English and because she was the highest paid employee,
does not prove that this was the actual reason Chou selected her
for a layoff. Wu also testified that when he said this, she stated
that she never had any trouble doing her work and that he re-
mained silent when confronted with her response. Although
her testimony as to what Chou said to her at the time of her
layoff should be considered as evidence regarding the issue, it
is still up to the Respondent to establish, by competent evidence
including testimony under oath, that this was in fact the reason
and not simply a statement made by Chou to set up a pretext.
5. In the prior case involving this Respondent, at 352 NLRB
667 (2008), the Respondent made essentially the same conten-
tion with respect to the previous discharge of Lin. This was
rejected by the administrative law judge and the Board. The
administrative law judge concluded:

Chou also testified that part of his decision was “cost sav-
ings,” inasmuch as Lin cannot lift heavy boxes and did not
speak English and Chou could hire college students at $8 per
hour who could speak English and were capable of lifting
heavy boxes. . . . I note that Liu and Wu had higher salaries
than Lin and also speak limited English. More importantly,
Respondent could have enjoyed cost saving at any time, by
hiring more college students and terminating Lin, but it did
not do so until Lin engaged unprotected conduct on Septem-
ber 29. In my view, it is clear that Lin’s protected conduct was
the sole and only reason for Respondent’s decision to termi-
nate him. In any event, it is even clear that Respondent has
failed to show that it would have discharged Lin absent his
protected concerted activity.

6. The evidence here established that both Lin and Wu had
been performing their work for many years and that their lim-
ited skills in English did not impede their work. (Wu had been
employed in the warehouse since September 2000).
For all of the reasons described above, I conclude that the
Respondent has not met its burden of establishing that it would
have terminated or laid off Lin or Wu for any reason apart from
their protected concerted activities. In the case of Wu, I also
conclude that her termination was motivated by her participa-
tion in an NLRB proceeding and that the Respondent has not
met its burden of showing that it would have laid her off for
any other reason. I therefore reaffirm my previous decision that
the Respondent violated Section 8(a)(1) of the Act by laying off
Lin and violated Section 8(a)(1) and (4) of the Act by laying off
Wu.
[Recommended Order omitted from publication.]