Dickens, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 4, 2007

29-CA-028229 (N.L.R.B. Dec. 4, 2007)

JD(NY)–51–07
Commack, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
DICKENS, INC.
and Case No. 29-CA-28229
WENQING LIN, an Individual
Henry Powell, Esq., and Tabitha Boerschinger, Esq.
Brooklyn, NY, for the General Counsel
James Chou, Esq., Vice President and Owner
Commack, NY, for the Respondent
DECISION
Statement of the Case
STEVEN FISH, Administrative Law Judge. Pursuant to charges filed on March 21,
2007, by Wenqing Lin, an Individual, herein called Lin, the Director for Region 29, issues a
Complaint and Notice of Hearing on July 19, 2007, alleging that Dickens, Inc., herein called
Respondent, violated Section 8(a)(1) of the Act, by threatening employees with discharge if they
requested improvements in their pay, and by discharging Lin, because he engaged in protected
concerted activity.
The trial with respect to the allegations raised in said Complaint was held before me in
Brooklyn, New York on August 20 and 21, 2007. Briefs have been filed and have been carefully
considered. Based upon the entire record, including my observation of the demeanor of the
witnesses, I make the following
Findings of Fact
I. Jurisdiction
The Employer is a corporation, with its principal office and place of business in
Commack, New York, where it is engaged in the wholesale distribution of greeting cards and
social stationary.
During the past year, Respondent purchased and received at its Commack facility,
goods and products valued in excess of $50,000 directly from entities located outside the state
of New York.
It is admitted and I so find, that Respondent is and has been an Employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
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II. Facts
Respondent, as noted above is engaged in the wholesale distribution of greeting cards
and stationary. James Chou is Respondent’s vice-president and owner.
Wenqing Lin, had been employed by Respondent as a warehouse employee since
August 1, 1998. Qui Shen Liu and Miaona Wu have been employed by Respondent in a similar
capacity, since 2004 and 2000 respectively. Their job consisted of filling orders which entails
reading orders , carrying and stocking boxes, and preparing orders to be shipped.
Respondent has for some time employed a system of paying bonuses to its employees,
which is calculated based on a comparison of monthly sales figures to the same month, the
prior year. Respondent would then calculate the amounts due based on different percentages
for different employees, ranging from 0.2% to 0.5%. Lin, Liu and Wu all received the same
percentage, 0.2% or $2.00 per thousand.
In early 2006,1 Respondent’s chief competitor went out of business. As the major
greeting card supplier in the area, Respondent picked up more business, and was able to earn
increased monthly profits. This resulted in bonuses for its employees. In July, Respondent
hired three new employees, and decided not to give bonuses to these new employees, who
were primarily college students.
Lin, Liu and Wu, as long term employees received their bonus, which amounted to over
$800.00 per person. On September 29, Lin, Wu and Liu were cleaning up outside their work
area and preparing to leave for the day. Chou approached the three employees, and said that
business continues to be good, and that employees should expect to receive a bonus again for
this past month.
He added that employees had received over $800.00 per month as a bonus. Wu
responded by asking how long this kind of bonus can last? Chou replied that he didn’t know,
but he thought it should last for a while. Wu then stated that since business was getting better,
at the same time, their work became more busy. Wu then asked if it was possible for the bonus
to be increased?
Chou made no response to Wu’s inquiry, but Lin then interjected himself into the
conversation. Lin said that the bonus rate that we2 have was only two out of a thousand. Lin
asked whether new employees would be receiving the bonus. Chou replied that the new
employees would not be receiving any bonus, and added “do me a favor, you are getting paid
much more than anybody else, please keep silent, don’t have a big mouth. You are making
over $800.00 per month, in bonuses, and I cannot afford to pay that to everyone”. Lin then
questioned Chou about the bonus rates for office employees and that of employees Jian Ping
Chiang. Chou explained that everyone has different nature and scope of work, and that’s why
bonuses vary. Lin asked if Chiang’s rate is four out of a thousand. Chou confirmed that amount
for Chiang, but asked how Lin had found out about Chiang’s rate? Lin did not answer Chou’s
question. Chou then explained why Chiang received a higher bonus than Wu, Lin and Liu,
pointing out Chiang’s 18 years seniority, and his ability to speak English and drive a truck, and
the fact that Chiang works with clients and sales people. Lin then asked about the office
employees. Chou responded that the sales manager received a higher bonus, but that the

1 All dates hereafter are in 2006, unless otherwise indicated.
2 When using the term we, Lin testified that he was referring to himself, Wu and Liu.
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office staff received the same 0.2% as Lin(and Wu and Liu). Lin then asked Chou if he was
telling the truth? Chou answered that this is the truth. Chou conceded that he was getting
annoyed with Lin’s questioning his veracity in front of other employees. Chou stated, that “Lin
was confronting me, but I kept my temper”.
My findings detailed above, concerning the events of September 29 is based on a
compilation of the credible portions of the testimony of Lin, Wu and Chou, as well as Chou’s
affidavit and the affidavit submitted by Wu to the Region. With respect to the latter document,
the significant fact continued therein, which I have credited over Wu’s testimony, was that Wu
asked Chou if the employees’ bonus could be increased, in view of the increase in business.
While Wu did not recall making such a comment during her testimony, I have, based on the
circumstances here, credited her affidavit in this respect.
I find that Wu was most reluctant to testify here, was still employed by Respondent, and
felt intimidated to testify on behalf of Respondent. In this regard the record reveals that in
preparation for filing its answer to the above complaint, Respondent by Chou obtained affidavits
from Wu and Liu in a group setting. In fact the affidavits of Wu and Liu submitted by
Respondent along with its answer, were identical concerning the events of September 29th. I
find that the affidavit supplied by Wu to the Board to be more reliable, than her testimony, and I
rely on said affidavit as substantive evidence. L.S.F. Transportation, 330 NLRB 1054, 1065
(2000); Three Sisters Sportswear Co., 312 NLRB 853, 865 (1993); New Life Bakery, 301 NLRB
421, 426 (1991); Snaider Syrup, 220 NLRB 238, fn.1, 245 (1975); Starlite Mfg, 172 NLRB 68, 72
(1968).
Respondent argues that Wu’s affidavit should not be relied upon, because of the
circumstances that motivated her to give such an affidavit to the Region. In that regard, in
February of 2007, Chou asked Wu to clean the toilets, because the employee who usually
performed that task was on vacation. Wu refused to do so, because she wanted to go to lunch.
Chou also asked Liu to perform this job, but he also refused, claiming that he had allergies.
These refusals angered Chou, and two days later he informed Liu and Wu that Respondent
would be eliminating their holiday pay and vacation benefits. Neither employee received holiday
pay for President’s day on February 19. Wu took a vacation from March 16 to April 9, and was
not paid for her vacation, as she had been in the past. Wu was quite upset about Respondent’s
decision to cancel these benefits for her. Lin filed his charge in the instant case on March 21,
2007. Thereafter Lin had a conversation with Wu. Lin told her that he had filed a complaint with
the NLRB, and she told him that she was unhappy that Respondent had canceled her vacation
and holiday benefits. As a result of this conversation, Wu went to the NLRB to furnish an
affidavit on May 22, 2007. The affidavit consisted of four pages. The first five paragraphs of the
affidavit dealt with Lin’s charge, and detailed her version of the events of September 29th and
thereafter. The remainder of the affidavit, consisting of 7 paragraphs dealt with her complaints
about the cancelling of her vacation and holiday benefits.
Respondent argues in effect that this affidavit should not be credited, because Wu was
unhappy with Respondent at the time, and presumably gave false testimony in the affidavit,
because she was displeased with Respondent. I do not agree. To the contrary, I believe that
these facts further support my conclusion to credit the affidavit over her testimony with respect
to the issues in dispute. In my view, the fact is Wu was unhappy with Respondent, and that she
went to the Region primarily to register her own complaint about the cancellation of her benefits,
do not indicate that her affidavit was likely to be false. Further, since she was there primarily to
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register her own complaint,3 her version of the events relating to Lin’s case was merely
incidental, and not likely to be fabricated. Further, I am persuaded that the fact that Respondent
would cancel her vacation and holiday benefits, (whether this action is unlawful or not), because
she refused to clean toilets, supports my conclusion that Wu was intimidated by Respondent,
and gave her affidavit to Respondent and testified as she did, in fear of further retaliation by
Respondent. I therefore find, for the reasons detailed above, that her affidavit given to the
Board is more reliable, than her testimony, with respect to whether she asked Chou for an
increase in the bonus rate on September 29th. L.S.F. Transportation, supra; Three Sisters,
supra and cases cited therein.
Finally, I also note that Wu was somewhat equivocal in her testimony that she did not
make such a request. Thus she admitted that she did not recall clearly what she said on
September 29, and when confronted with her affidavit by General Counsel, Wu finally conceded
that she might have made such a comment, but she was kidding around. Her response was as
follows: “I would say that at that time since we were like joking around in a happy manner and
then I might have said something like maybe you can give us more bonus, but it was like… like
kidding around in a very informal manner”.
Accordingly, based on the foregoing, I find that Wu did, as detailed above, asked
Chou for an increase in the bonus rate for employees, before Lin interjected himself into the
conversation, and gave his comments and asked his questions concerning the bonus issue.
Lin testified that on the next workday, Monday, October 2, after a general meeting of
employees, Chou spoke to Liu, Lin and Wu. According to Lin, Wu spoke first, and said that
business is getting better, we have a lot of orders and that is why we wanted to increase our
bonus. Lin further asserts that Chou did not respond, but as he was walking out of the room,
Chou allegedly said “whoever talks about increasing the bonus would be fired”. Lin further
testified that he (Lin) then said “you should just fire me”.
Lin also testified that later in the day, at about 5:20 PM Chou called him into his office,
with no one else present. Lin asserts that Chou told him that if he wants higher income, he
should look for another job, and added that “whoever asks for an increase in wages or with
benefits would be fired”. According to Lin, later in the conversation, Chou told Lin that
Respondent was going to fire him, and instructed Lin to go home and think through it.
I do not credit Lin’s testimony concerning these conversations on October 2. I note that
unlike the September 29 conversation detailed above, Lin received no corroboration from Wu or
from her affidavit with respect to October 2 conversations, or to Lin’s assertion that Chou
threatened to discharge employees who talk about bonuses. I also rely on the fact that both Wu
and Liu although allegedly present when Chou made this threat, credibly denied hearing Chou
make such a statement.4
Furthermore, Chou testified credibly and passionately that he did not and would not

3 It does not appear that Wu filed a charge on her own behalf with regard to the cancellation
of her benefits. There is no evidence that the Region solicited a charge from her. The Region
did not allege in the complaint that the cancellation of her benefits was unlawful.
4 I again note the affidavit given to the Board by Wu, which I have relied on in connection
with the September 29 incident, does not corroborate Lin’s testimony as to October 2, and
specifically states that Wu never heard Chou threaten employees with discharge if they
discussed pay or benefits with the other employees.
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threaten employees with termination with discharge if they discussed or complained about
wages or benefits. Chou testified further, credibly and without any contradictory evidence, that
numerous employees including Lin have complained to him in the past about their wages, and
he has not fired anyone for such conduct. Chou also credibly testified, corroborated by
testimony from Kenneth Wagner, Respondent’s Director of Marketing, that Wagner on two prior
occasions, including in July of 2006, had proposed to Chou that Respondent institute a rule that
employees be prohibited from discussing their pay or bonus.5 Chou vetoed Wagner’s
suggestions on both occasions, telling Wagner that such a rule would violate a 25 year open
door policy that Respondent has had with its employees.
For the above reasons, I do not credit Lin’s testimony concerning the events of October
2, and find that Chou did not threaten to terminate or discharge employees, if they complained
about or discussed their pay or bonuses.
On October 3, at the end of the day, Chou called Lin into his office and told him that he
was being fired because he and Chou ”could not get along well”. Lin replied that this was the
first time he had heard about this and asked for specifics. Chou made no reply, and Lin insisted
on something in writing explaining the termination. Chou agreed and typed up a letter which
stated that Lin was terminated “because of a personality conflict with the undersigned”.
Chou explained what he meant by “personality conflict” in his affidavit. His affidavit
states “I believe that Lin is an asshole and has an asshole attitude. He questioned my honesty
and integrity in front of other employees”. Chou admitted that the questioning of his honesty
and integrity by Lin was in connection with the issue of bonus rates of employees.
Chou further admitted in his testimony that the primary factor in his decision to fire Lin
was Lin’s “asshole attitude” about the bonus. Chou added later in his testimony that he was
unhappy with Lin, because the “bonus is really the highest time I ever had in this past ten years.
Okay? And even if $800.00 bonus I cannot please him and he’s still not happy, how I can…!”
While admitting that Lin’s conduct during the September 29 discussion, was the
precipitating factor, in his decision to terminate Lin, Chou testified that there were also other
reasons that contributed to his decision. Chou asserts that Lin’s work performance was poor
and that he had previous conflicts with fellow workers. Chou claims that Lin’s capacity was
limited, in that he was able only to pickup small pieces, and was not physically able to move
large boxes. Chou adds that at times, Lin refused to do some work, and had several disputes
with supervisors and employees. Respondent adduced evidence from Chiang, that at some
undefined time in the past, Lin had a loud argument with fellow employee Liu Bo during which,
“they almost fight each other”. Neither employee was disciplined for this loud argument. Wu
testified to an incident “many years ago”, when Lin refused to clean the bathroom, and had a
loud argument with a supervisor at the time about that work assignment. According to Wu, at
the time, employees would rotate cleaning the bathroom, on a monthly basis, and it was Lin’s
turn to clean the bathroom, when Lin refused to perform that work. Lin was not terminated or
disciplined for this conduct.
Chou testified that sometime in 2002, he terminated Lin, because of his alleged limited
capacity and his refusal to perform work. Chou claims that at that time, Lin’s wife telephoned

5 Wagner had previously worked for a store that had such a rule in its handbook. Wagner
felt that such a rule would be advisable for Respondent, because employees talking about these
issues could “cause problems”.
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Chou, and begged him not to fire her husband. According to Chou, Lin’s wife asked him to do
her a favor, and rehire Lin and let him stay “for a few more years, so he can retire and get his
social security”. Chou testified that he relented and rehired Lin in 2002.6
Chou also testified that another reason for his decision to terminate Lin, was cost
savings issues, since he could hire younger employees, who could speak English fluently, at
lower salaries, who could perform tasks, such as lifting heavy boxes, that Lin was allegedly
unable to perform.7
In this regard the evidence, discloses that Liu ($8.50) and Wu ($9.25), had higher
salaries than Lin, and also had the same limited capacity. (i.e. inability to lift heavy boxes, and
limited capacity to speak English).
Finally, Respondent notes that Lin filed a charge with the EEOC, which asserts that he
was terminated by Respondent because of his age. With Lin’s charge filed with the EEOC on
December 6, 2006 he submitted a letter of Complaint, which included Lin’s belief that he was
fired because of his age. The letter made no reference to the events of September 29, 2006, or
any claim that he was fired for the exercise of protected concerted activity.
Further in connection with this EEOC charge, Chou submitted a response. In this
response, which related to why he terminated Lin, Chou explained that Lin had questioned him
about bonuses of other employees and related that Lin “started questioning me in front of other
associates if I was telling the truth”. Chou added that he was “angry”, because of this conduct
by Lin, and added, “The next day I called Mr. Lin in my office and told him that I can never
please or satisfy some people like him regardless how hard I try, and the longer he works for
this company, the more he feels I owe him, we had a ‘serious personality conflict’, and I
decided to let him go”.
III. Analysis
A. The Alleged Threat to Discharge
The Complaint alleges that Respondent violated Section 8(a)(1) of the Act, by Chou
threatening to discharge employees, if they requested improvements in their pay.
Since I have not credited the testimony of Lin that Chou made such threats, I shall
recommend dismissal of this allegation of the complaint.
However, I have found above, and Chou admitted in both his testimony and his affidavit,
that he instructed employees not to discuss their bonus with other, recently hired employees,
who would not be receiving such a bonus. Such comments reasonably tend to coerce
employees in the exercise of Section 7 rights, (to discuss their terms and conditions of
employment with fellow employees), and absent a substantial and legitimate business
justification, is violative of Section 8(a)(1)) of the Act. Radisson Plaza Minneapolis, 307 NLRB

6 Lin denied that he had been terminated by Respondent in 2002. Lin did recall that in 2002,
while he was out sick, Chou called and told him not to return to work, and that Chou planned to
retain younger workers. Lin conceded that his wife had called Chou, and persuaded Chou to
allow Lin to return to work after he recovered from his illness.
7 The new employees could be hired according to Chou at $8.00 per hour. Lin’s salary was
$8.25 per hour.
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94 (1992); Heck’s Inc., 293 NLRB 1111, 1114 (1989); Waco Inc., 273 NLRB 796, 748 (1984);
see also, Scientific Atlanta, Inc., 278 NLRB 622, 625 (1986); Miller Electric Pump, 334 NLRB
824, 825 (2001).
Here Respondent has adduced no evidence of a substantial business justification, for
Chou’s instruction to its employees. Chou’s belief that there could be dissension if the new
employees who did not receive the bonus found out about the bonus, is not a substantial or
sufficient business justification. That argument could be made in any case, where employees
are prohibited from discussing wages. C.f, IBM Co., 265 NLRB 638 (1982) (Substantial
business justification shown, for rule prohibiting distribution of wage data, complied by Employer
but which did not prohibit employees from discussion their wages with other employees);
Jeannette Corp. v. NLRB, 532 F.2 916, 919 (3d Cir. 1976) (Possibility that ordinary speech and
discussion over wages on an employee’s own time may cause jealousy and strife among
employees is not a justifiable business reason to inhibit opportunity to exercise Section 7 rights).
Accord Scientific, supra.
I recognize that the Complaint did not allege that Respondent violated the Act by such
conduct of Chou. However, it did allege that Chou violated Section 8(a)(1) of the Act, by
threatening to discharge employees, who discussed wages and benefits with fellow employees.
Moreover, the testimony concerning this statement made by Chou, come from Chou’s own
testimony, and appeared in his affidavit. In these circumstances, I find that the issue is closely
connected to the subject matter of the Complaint and has been fully litigated. Trim Corp. of
America, 349 NLRB #56 Slip op. at 2 (2007); Golden State Foods, 340 NLRB 2382 (2003). In
that regard, this rule has been applied with particular force, where, the finding of violation is
established by the testimonial admissions of the Respondent’s own witnesses. Transpersonal
Inc., 336 NLRB 484, 485 (2001); Letter Carriers Local 3825 (Postal Service), 333 NLRB 343,
fn. 3 (2001); Meisner Electric Inc., 316 NLRB 597 (1995); Pergament United States, 296 NLRB
333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1996).
Accordingly, I find that by Chou’s conduct in instructing employees not to discuss their
bonuses with other employees, Respondent has violated Section 8(a)(1) of the Act.
B. The Termination of Lin
The standards for assessing the legality of Lin’s termination is detailed in Meyers
Industries, 268 NLRB 443, 447 (1984) (Meyers I).
In general, to find an employee’s activity to be “concerted”, we shall
require that it be engaged in with or on the authority of other employees, and not
solely by and on behalf of the employee himself. Once the activity is found to be
concerted, an 8(a)(1) violation will be found if, in addition, the Employer knew of
the concerted nature of the employee’s activity, the concerted activity was
protected by the Act, and the adverse employment action at issue (e.g.,
discharge) was motivated by the employee’s protected concerted activity.
[Footnotes deleted].
And as clarified in and as clarified in Meyers Industries, 281 NLRB 882, 887 (1986)
(Meyers II).
We reiterate, our definition of concerted activity in Meyers I encompasses
those circumstances where individual employees seek to initiate or to induce or
to prepare for group action, as well as individual employees bringing truly group
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complaints to the attention of management.
Thus the determinative issue here is whether Lin engaged in concerted activity, during
the discussions of September 29th. I have found above that Chou approached Lin, Wu and Liu,
three primarily Chinese speaking warehouse employees, all of whom had received the same
0.2% bonus from Respondent. Chou began the conversation by informing the three employees
that business continues to be good, they had received a bonus of $800.00 per month and they
should expect to receive a bonus again for the next month. Wu after asking how long the bonus
can last, stated the employees work became more busy, and asked if it was possible for the
bonus to be increased.
Lin, at that point, interjected himself into the conversation, and said that the bonus rate
that we (emphasis supplied) get was only two out of a thousand. Lin continued to press Chou
for an increase in the bonus rate, and inquired about the bonus rates of other employees,
including office workers. Although Chou responded to Lin’s persistent inquiries, Lin asked if
Chou was telling the truth in his responses to Lin concerning the rates for other employees.
Chou considered that Lin was questioning his veracity in front of other employees, and
terminated Lin, primarily , if not solely for Lin’s conduct on September 29.
I conclude that there is little doubt, that by Lin’s conduct in supporting Wu’s request for a
raise in the bonus rate, he was engaged in protected concerted activity. Hahmer Foreman &
Harness, 343 NLRB 1423, 1424 (2004) (Two employees protested loss of benefits); Bowling
Transportation, 336 NLRB 393, 400-401 (2001) (Two employees requested increase in safety
bonus); Avery Leasing, 315 NLRB 576,580 (1994) (Two employees complained about seniority
system); Morton International, 315 NLRB 564, 566 (1999) (Two employees complained about
smoking policy) ; E.L. Gran Combo, 284 NLRB 1115, 1117 (1987) (Two employees complaints
about wages); Churchill’s Catering, 276 NLRB 775, 776 (1985) (One employee complained
about reduction in insurance coverage. Second employee supported first employee’s complaint
and accused Employer of prejudice against Mexicans).
Further, where as here, the Employer initiates a discussion about a term and condition of
employment with its employees, an employee who comments concerning that issue, particularly
where he or she uses the first person plural in making their complaint, is engaged in concerted
activity. Whittaker Corp., 289 NLRB 933, 934 (1988) (Employee complaint at group meeting
about wage increases, phrased in terms of “us” and “we”); Bergensons Property Services, 338
NLRB 883, 886 (2003) (Employee complaints at group meeting); CKS Tool & Engineering, 332
NLRB 1578, 1583-1585 (2000) (Employee, at group meeting, complained about Employer’s
demand for increased production, using the term “we”); Air Contact Transport, 340 NLRB 688
(2003) (Employee at group meeting, stated that they had “some questions on behalf of myself
and other co-workers”.); Grimmway Farms, 315 NLRB 1276, 1279-1280 (1995) (Employee
complained at a group meeting about how Employer treated fellow employee used the term
“we” wanted to know); Colders Furniture, 292 NLRB 941, 944-945 (1989) enfd. 907 F.2d 765,
768 (7th Cir. 1990) (Salesman in complaining about hours, used “we”, several times).
Here, Chou initiated the discussion about bonuses with the three employees, and when
Lin made his initial complaint to Chou about the size of the bonus, Lin said the bonus rate that
we had (emphasis supplied) was only two out of a thousand.8

8 By we, Lin meant himself, Liu and Wu, who were the three employees that were
approached by Chou to discuss bonuses, and who all had the same bonus rate.
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Accordingly, based on the above analysis and precedent, I conclude that Lin was
engaged in concerted activity on September 29, in his discussions with Chou about bonus rates.
Having found that Lin engaged in concerted activity during the September 29 meeting, I
still l must determine whether it was protected by the Act. In this regard, the Board has held that
there are limits as to how far an employee can go in the course of exercising their concerted
activity, in order to retain the Act’s protection. However, it is well settled that an “employee’s
right to engage in concerted activity may permit some leeway for impulsive behavior which must
be balanced against the employer’s right to maintain order and respect. NLRB v. Thor Power
Tool Co., 351 F.2d 584, 587 (7th Cir. 1965); Mast Advertising Co., 304 NLRB 819, 820 (1991);
Neff Perkins Co., 315 NLRB 1229, 1233-1234 (1994); Bergenson’s Property, supra at 884. The
test is whether the conduct of the employee was so egregious that it renders him “unfit for
further service”. Chromolloy Gas Turbine Corp., 331 NLRB 860, 863 (2000), enfd. 168 LRRM
1067 (2nd Cir. 2001); Thor Power, supra; Cibao Meat Products, 338 NLRB 934, 935 (2003).
Here the alleged misconduct by Lin, which so angered Chou, consisted merely of Lin’s
persistent questioning of Chou about the bonus rates of other employee, and Lin’s asking Chou
if he was telling the truth about such rates, which Chou deemed as insulting, and “questioning
his veracity in front of other employees”. Such comments by Lin do not come close to meeting
the stringent standard of egregious conduct, rendering Lin unfit for service, which would remove
Lin’s concerted conduct from the Act’s protection. Indeed, far more insulting or profane
comments have been found not to be unprotected. Neff Perkins, supra, at 1233. (Employee
told supervisor to “shut up and sit down”, and made profane comments such as “shitty”);
Chromolloy Gas, supra (Employee argumentive and confrontational and according to company
“disparaged company official in front of other employees”, and made official “look like a fool”.);
Stanford N.Y., 344 NLRB 558, 559 (2005) (Employee called boss a “f---ing son of a bitch”.);
United Enviro Systems, 301 NLRB 942, 944 (1991) (Profanity used by salesman in complaining
about work assignments); CKS Tool, supra, at 1583, 1585-1586 (Employee made several
profane and insulting comments to management official at meeting); Churchill’s Restaurant,
supra, at 777 (Employee accused boss of being “prejudiced against Mexicans”.)
Therefore having found that Lin was engaged in protected concerted activity on
September 29, the next issue becomes whether Respondent terminated him for that conduct.
In that regard, the General Counsel must first establish that this conduct of Line was a
motivating factor in Respondent’s decision to discharge him. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). There can be no
doubt that General Counsel has met that burden. Indeed, Respondent has virtually admitted in
the testimony of Chou, as well as in his affidavit, that Lin’s protected conduct was at least a
factor, if not the primary factor, in Respondent’s decision. Thus Chou admitted that his decision
to terminate Lin because of “personality conflicts”, was based primarily on Lin’s conduct on
September 29th, particularly Lin’s questioning Chou’s veracity or honesty in front of other
employees. Since the questioning of Chou’s veracity was in connection with Lin’s concerted
complaint about bonus rates, this conduct is part and parcel of Lin’s protected conduct.
Moreover, Chou also admitted that Lin had an “asshole attitude” about the bonus, since even
with an $800.00 bonus, “I cannot please him”, thereby demonstrating Chou’s annoyance that
Lin would have the temerity to request a raise in the bonus rate for employees.
Since I have found that General Counsel has established that a motivating factor in
Respondent’s decision to discharge Lin, was Lin’s protected conduct,9 the burden shifts to

9 Respondent’s reliance on Lin’s EEOC charge misplaced. Although Lin may have alleged
different reasons (age discrimination) in that charge, that does not mean that there may not
Continued
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Respondent to establish by a preponderance of the evidence that it would have terminated Lin,
absent such protected conduct. Wright Line, supra, Respondent has fallen far short of meeting
its burden in this regard.
Indeed while Chou did testify concerning several other alleged reasons for his decision
to discharge Lin, he did not testify, nor does the record establish, that any of these reasons,
singly or collectively, would have been sufficient to persuade Respondent to terminate Lin,
absent his protected conduct. See St. Barnabas Hospital, 334 NLRB 1000, 1015 (2201)
(Respondent must establish that it would have terminated employees absent their protected
conduct. Insufficient to establish that “primary” reason was unprotected conduct).
Further the other reasons given by Chou, which allegedly caused him to terminate Lin,
do not withstand scrutiny. Chou asserts that Lin had previous conflicts with fellow workers.
While Respondent did adduce some evidence of this conduct, Lin was never warned or
disciplined for any of these incidents, which I might add, took place years ago. Chou also
testified that he terminated Lin in 2002, for these incidents, as well as a general inability to
perform work, and was persuaded to take Lin back, after a plea from Lin’s wife. Whether or not
this incident took place as testified to by Chou,10 it cannot justify terminating Lin four years later.
Chou also testified that part of his decision was “cost savings”, inasmuch as Lin cannot
lift heavy boxes, and did not speak English, and Chou could hire college students at $8.00 per
hour, who could speak English and were capable of lifting heavy boxes. However, I note initially
that Lin’s salary was $8.25 per hour, only a twenty five cents per hour difference from what
Respondent was paying the college students. This is hardly a significant difference, and I find
that this assertion by Respondent is clearly pretextual. 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 in protected conduct on September 29, In my view, it is clear that
Lin’s protected conduct was the sole and only reason for Respondent’s decision to terminate
him. In any event , it is even clearer, that Respondent has failed to show that it would have
discharged Lin, absent his protected concerted activity, and has therefore violated Section
8(a)(1) of the Act. I so find.
Conclusions of Law
1. Respondent, Dickens Inc., is an employer engaged in commerce within the meaning
of Section 2(2) and (6) of the Act.
2. Respondent, by ordering, instructing and requesting its employees to refrain from
discussing bonuses with other employees, has violated Section 8(a)(1) of the Act.
3. Respondent, by terminating the employment of Wenqing Lin, because he engaged in
protected concerted activities, has violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of Section
_________________________
have been other unlawful reasons, i.e. his protected concerted activity for the discharge.
Further, Chou’s response to that EEOC further establishes the unlawfulness of Respondent’s
conduct. Chou admitted therein that Respondent fired Lin for questioning him about bonuses in
front of other employees.
10 Lin had a different version as related above. I need not resolve this credibility dispute.
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2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and refrain and to take certain affirmative action
designed to effectuate the policies of the Act.
I shall recommend that Respondent offer reinstatement to Wenqing Lin to his former
position of employment and make him whole for the discrimination against him, plus interest, as
computed in F.W. Woolworth, 90 NLRB 289 (1950) and Horizons for the Retarded, 283 NRLB
1173 (1980).
Based on the foregoing findings of fact and conclusions of law and on the entire record, I
issue the following recommended11
ORDER
The Respondent, Dickens Inc., Commack, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Telling employees not to discuss their bonuses, wages or any other term and
condition of employment, with one another.
(b) Discharging or refusing to reinstate their employees, because said employees
engaged in protected concerted activities.
(c) 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 effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Wenqing Lin full
reinstatement to his former job or, if this job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Lin whole for any loss of earnings and other benefits suffered as a result of the
discrimination against him in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Boar’s Order, remove from its files any reference
to the unlawful discharge of Lin, 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.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional

11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended 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 purposes.
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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, timecards, personnel
records 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.
(e) Within 14 days after service by the Region, post at its Commack, New York, copies
of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by the
Regional Director for Region 29, after being signed by the Respondent’s authorized
representative, 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.
Reasonable 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 pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, 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
September 29, 2006.
Dated, Washington, D.C., December 4, 2007.
____________________
Steven Fish
Administrative Law Judge

12 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 United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)–51–07
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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT tell our employees not to discuss their bonuses, wages, or any other terms and condition of
employment with one another.
WE WILL NOT discharge or refuse to reinstate our employees, because said employees engaged in protected
concerted activities.
WE WILL NOT in any like in related manner interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL within 14 days form the date of the Board’s Order, offer Wenqing Lin full reinstatement to his
former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL make Lin whole for any loss of earnings and other benefits suffered as a result of the
discrimination against Lin plus interest.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any reference to the
unlawful discharge of Lin, and within 3 days thereafter notify the employee in writing that this has been done and that
the discharge will not be used against him in any way.
DICKENS, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts
secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.