East Market Restaurant, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2015

362 NLRB No. 143 (N.L.R.B. 2015)

362 NLRB No. 143
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
East Market Restaurant, Inc. and 318 Restaurant
Workers Union. Cases 02–CA–120982, 02–CA–
133656, and 02–CA–144988
June 30, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
The General Counsel seeks a default judgment in this
case on the ground that East Market Restaurant, Inc. (the
Respondent) has withdrawn its answer to the complaint.
Upon a charge and an amended charge filed by 318 Res-
taurant Workers Union (the Union) on January 17 and
May 27, 2014, respectively, and charges filed on July 29,
2014, and January 23, 2015, the General Counsel issued
a complaint, consolidated complaint, and amendment to
the consolidated complaint on August 29, 2014, and
March 20 and April 8, 2015, respectively, against the
Respondent, alleging that it has violated Section 8(a)(5),
(4), (3), and (1) of the Act. The Respondent filed an an-
swer to the complaint. However, by letter dated March
19, 2015, the Respondent withdrew its answer and indi-
cated its intention not to file an answer to the consolidat-
ed complaint, which was then pending. By letter dated
April 9, 2015, the Respondent indicated its intention not
to file an answer to the amendment to the consolidated
complaint. Consistent with its representations, the Re-
spondent failed to file an answer to the consolidated
complaint or the amendment to the consolidated com-
plaint.
On April 15, 2015, the General Counsel filed a Motion
for Default Judgment with the Board. Thereafter, on
April 20, 2015, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board's Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the consolidated complaint affirma-
tively stated that unless an answer was received by April
3, 2015, the Board may find, pursuant to a motion for
default judgment, that the allegations in the complaint
are true. Further, the amendment to the consolidated
complaint affirmatively stated that unless an answer was
received within 14 days from the date of service thereof,
all of the allegations in the amendment to the complaint
would be deemed to be admitted. Although the Re-
spondent filed an answer to the complaint on September
25, 2014, it subsequently withdrew its answer to the
complaint. The withdrawal of an answer has the same
effect as a failure to file an answer, i.e., the allegations in
the complaint must be considered to be admitted as true.1
Accordingly, based on the withdrawal of the Respond-
ent’s answer and its failure to file an answer to the con-
solidated complaint or the amendment to the consolidat-
ed complaint, we deem the allegations in the consolidat-
ed complaint, as amended, to be admitted as true, and we
grant the General Counsel's Motion for Default Judgment
in part.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a domestic cor-
poration with an office and place of business located at
75 East Broadway, New York, New York (the Respond-
ent’s facility), has been engaged in the business of oper-
ating a restaurant.
Annually, the Respondent, in the course and conduct
of its operations as described above, derives gross reve-
nue in excess of $500,000.
Annually, the Respondent, in the course and conduct
of its operations as described above, purchases and re-
ceives at its facility goods and materials valued in excess
of $5000 from suppliers located within the State of New
York, each of which other enterprises had received these
goods directly from points outside the State of New
York.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and/or agents of the
Respondent within the meaning of Section 2(13) of the
Act:

1 See Maislin Transport, 274 NLRB 529 (1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Guo Ping Zheng President &
Shareholder
Shi Gan Zheng a/k/a Jimmy Cheng Principal
Shareholder
Zheng Xiang Zheng Shareholder
Wan Lung Cheng a/k/a Alex Cheng Manager
Ren Kan Wu a/k/a John Ng Manager
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time dining room em-
ployees, including bus persons, waiters, captain, hosts
and dim sum sellers employed by Respondent at its fa-
cility. And excluding guards, professionals, kitchen
employees and supervisors as defined in the National
Labor Relations Act, as amended.
Since about July 25, 2011, and at all material times,
the Respondent has recognized the Union as the exclu-
sive collective-bargaining representative of the unit.
This recognition has been embodied in a recognition
agreement dated July 25, 2011.
At all material times since July 25, 2011, based on
Section 9(a) of the Act, the Union has been the exclusive
collective-bargaining representative of the unit.
The following events occurred beginning in November
2013.
1. About November 26, 2013, the Respondent, by
Wan Lung Cheng a/k/a Alex Cheng at the Respondent’s
facility, threatened employees with criminal charges if
they engaged in protected concerted and union activities.
2. About February 2014, the Respondent, by Zheng
Xiang Zheng at the Respondent’s facility:
(a) threatened employees with discharge if they en-
gaged in protected concerted and union activities;
(b) threatened employees with unspecified reprisals if
they engaged in protected concerted and union activities;
and
(c) threatened to close the restaurant to discourage
employees from engaging in protected concerted and
union activities.
3. Beginning about December 2013 and continuing to
date, the Respondent’s employees and employees of Jing
Fong Restaurant and Grand Harmony Restaurant (collec-
tively, “the Restaurants”) participated in union protests
outside the Respondent’s facility regarding the Respond-
ent’s treatment of its employee Sky Wong.
4. Beginning about April 2014, the Respondent orga-
nized regular pickets in front of the Restaurants in retali-
ation for the participation of the Restaurants’ employees
in the union and protected concerted activities referenced
in paragraph 3.2
5. About June 7, 2013, the Respondent’s employee
Sky Wong engaged in concerted activities with other
employees for the purpose of mutual aid and protection
by filing with other employees a collective civil action in
the United States District Court, Southern District of
New York (Civil Action No. 1:13-CV-03902-HBP), al-
leging violations of the Fair Labor Standards Act and the
New York Labor Law.
6. About November 26, 2013, the Respondent dis-
charged Wong.
7. The Respondent engaged in the conduct described
above in paragraph 6 because Wong assisted the Union
and engaged in concerted activities described above in
paragraph 5, and to discourage employees from engaging
in these activities.
8. The Respondent engaged in the conduct described
above in paragraph 6 because Wong cooperated in a
Board investigation in Case 02–CA–105999.
9. About February 2014, the Respondent’s employee
Sai Qin Chen spoke with employees engaged in the con-
duct described above in paragraph 5 while at the Re-
spondent’s facility.
10. About May 5, 2014, Chen refused to participate in
the conduct described above in paragraph 4.
11. About May 7, 2014, the Respondent discharged
Chen.
12. The Respondent engaged in the conduct described
above in paragraph 11 because Chen engaged in the ac-
tivities described in paragraphs 9 and 10, assisted the
Union, and engaged in concerted activities, and to dis-
courage employees from engaging in these activities.
13. At the time of the discharges described above in
paragraphs 6 and 11, the Union and the Respondent had
not entered into an initial collective-bargaining agree-
ment or an interim grievance procedure.
14. The subjects set forth above in paragraphs 6 and
11 relate to wages, hours, and other terms and conditions
of employment of the unit and are mandatory subjects for
the purposes of collective bargaining.
15. The Respondent exercised discretion in engaging
in the conduct set forth in paragraphs 6 and 11.
16. The Respondent engaged in the conduct described
above in paragraphs 6 and 11 without prior notice to the
Union and without affording the Union an opportunity to

2 Although the complaint alleges that these facts constitute a viola-
tion of Sec. 8(a)(1), the complaint does not allege sufficient facts to
determine whether this conduct violated the Act. Accordingly, the
General Counsel’s motion for default judgment with respect to this
issue is denied.
EAST MARKET RESTAURANT, INC. 3
bargain with the Respondent with respect to this conduct
and the effects of this conduct.
17. About December 29, 2014, the Respondent closed
its facility.
18. The effects of the conduct set forth above in para-
graph 17 relate to wages, hours, and other terms and
conditions of employment of the unit and are mandatory
subjects for the purposes of collective bargaining.
19. The Respondent engaged in the conduct described
above in paragraph 17 without prior notice to the Union
and without affording the Union an opportunity to bar-
gain with the Respondent with respect to the effects of
this conduct.
20. As a result of the Respondent’s conduct described
above in paragraph 17, on December 29, 2014, the Re-
spondent terminated the employees in the unit.
CONCLUSIONS OF LAW
1. By the conduct described above in paragraphs 1, 2,
6, and 11, the Respondent has been interfering with, re-
straining, and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act in violation of
Section 8(a)(1) of the Act.
2. By the conduct described above in paragraphs 6 and
11, the Respondent has been discriminating in regard to
the hire or tenure or terms or conditions of employment
of its employees, thereby discouraging membership in a
labor organization in violation of Section 8(a)(3) and (1)
of the Act.3
3. By the conduct described above in paragraph 6, the
Respondent has been discriminating against employees
for giving testimony under the Act in violation of Section
8(a)(4) and (1) of the Act.
4. By the conduct described above in paragraphs 19
through 20, the Respondent has been failing and refusing
to bargain collectively and in good faith with the exclu-
sive collective-bargaining representative of its employees
in violation of Section 8(a)(5) and (1) of the Act.
5. The Respondent’s unfair labor practices described
above affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, to remedy
the Respondent’s unlawful failure and refusal to bargain

3 The complaint additionally alleged that the conduct in pars. 13–16
violated Sec. 8(a)(5) of the Act. We find it unnecessary to pass on
whether the Respondent’s conduct in this regard also violated Sec.
8(a)(5), because finding this additional violation would not materially
affect the remedy.
with the Union about the effects of its decision to close
its facility, we shall order the Respondent to bargain with
the Union, on request, about the effects of its decision.
As a result of the Respondent’s unlawful conduct, how-
ever, the unit employees have been denied an opportuni-
ty to bargain through their collective-bargaining repre-
sentative at a time when the Respondent might still have
been in need of their services and a measure of balanced
bargaining power existed. Meaningful bargaining cannot
be assured until some measure of economic strength is
restored to the Union. A bargaining order alone, there-
fore, cannot serve as an adequate remedy for the unfair
labor practices committed.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
policies of the Act, to accompany our bargaining order
with a limited backpay requirement designed both to
make whole the employees for losses suffered as a result
of the violations and to recreate in some practicable
manner a situation in which the parties’ bargaining posi-
tion is not entirely devoid of economic consequences for
the Respondent. We shall do so by ordering the Re-
spondent to pay backpay to the unit employees in a man-
ner similar to that required in Transmarine Navigation
Corp., 170 NLRB 389 (1968), as clarified by Melody
Toyota, 325 NLRB 846 (1998).4
Thus, the Respondent shall pay its unit employees
backpay at the rate of their normal wages when last in the
Respondent’s employ from 5 days after the date of this
Decision and Order until occurrence of the earliest of the
following conditions: (1) the date the Respondent bar-
gains to agreement with the Union on those subjects per-
taining to the effects of its decision to cease operations of
its facility on the unit employees; (2) a bona fide impasse
in bargaining; (3) the Union’s failure to request bargain-
ing within 5 business days after receipt of this Decision
and Order, or to commence negotiations within 5 busi-
ness days after receipt of the Respondent’s notice of its
desire to bargain with the Union; or (4) the Union’s sub-
sequent failure to bargain in good faith.
In no event shall the sum paid to these employees ex-
ceed the amount they would have earned as wages from
the date on which the Respondent ceased operations of
its New York, New York facility to the time they secured
equivalent employment elsewhere, or the date on which
the Respondent shall have offered to bargain in good
faith, whichever occurs sooner. However, in no event
shall this sum be less than the employees would have
earned for a 2-week period at the rate of their normal
wages when last in the Respondent’s employ. Backpay

4 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
shall be based on earnings which the unit employees
would normally have received during the applicable pe-
riod, less any net interim earnings, and shall be computed
in accordance with F.W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8
(2010).5 Additionally, we shall order the Respondent to
compensate unit employees for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards
and to file a report with the Social Security Administra-
tion allocating the backpay awards to the appropriate
calendar quarters for each employee. Don Chavas d/b/a
Tortillas Don Chavas, 361 NLRB No. 10 (2014).
Further, having found that the Respondent has violated
Section 8(a)(3) and (1) of the Act by discharging Sky
Wong and Sai Qin Chen, we shall order the Respondent
to make Sky Wong and Sai Qin Chen whole for any loss
of earnings and other benefits they may have suffered as
a result of the Respondent’s unlawful conduct. Backpay
shall be computed in the manner set forth in F. W.
Woolworth Co., supra, with interest at the rate prescribed
in New Horizons, supra, compounded daily as prescribed
in Kentucky River Medical Center, supra. We shall also
order the Respondent to compensate Sky Wong and Sai
Qin Chen for the adverse tax consequences, if any, of
receiving lump-sum backpay awards and to file a report
with the Social Security Administration allocating the
backpay awards to the appropriate calendar quarters for
each employee. Don Chavas, supra. In addition, the
remedy for this violation would ordinarily also include
an order requiring the Respondent to offer full reinstate-
ment to Wong and Chen within 14 days from the date of
our Order. However, in light of the fact that the Re-
spondent has ceased operations, we shall not order the
immediate reinstatement of Wong and Chen. Instead, to
further effectuate the policies of the Act, we shall order
the Respondent, in the event that it resumes the same or
similar business operations, to offer Wong and Chen full
reinstatement to their former positions or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other

5 In the complaint and the motion for default judgment, the General
Counsel seeks an order requiring reimbursement of all search-for-work
and work-related expenses regardless of whether the discriminatees
received interim earnings in excess of these expenses, or at all, during
any given quarter, or during the overall backpay period. Because the
relief sought would involve a change in Board law, we believe that the
appropriateness of this proposed remedy should be resolved after a full
briefing by the affected parties, and there has been no such briefing in
this case. Accordingly, we decline to order this relief at this time. See,
e.g., Ishikawa Gasket America, Inc., 337 NLRB 175, 176 (2001), enfd.
354 F.3d 534 (6th Cir. 2004), and cases cited therein.
rights or privileges previously enjoyed. The Respondent
shall also be required to remove from its files any and all
references to the unlawful discharges and to notify Sky
Wong and Sai Qin Chen in writing that this has been
done and that the unlawful conduct will not be used
against them in any way.
Finally, in view of the fact that the Respondent has
ceased operations at its New York, New York facility,
we shall order the Respondent to mail a copy of the at-
tached notice, in English as well as Mandarin, Canton-
ese, Foo Zhu, and any other dialects spoken by the em-
ployees, to the Union for posting, if willing, and to the
last known addresses of the unit employees who were
employed by the Respondent at any time since Novem-
ber 26, 2013, in order to inform them of the outcome of
this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, East Market Restaurant, Inc., New York,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with criminal charges, un-
specified reprisals, or discharge because they engage in
concerted activities.
(b) Threatening to close the restaurant to discourage
employees from engaging in protected concerted and
union activities.
(c) Discharging employees because they join the Un-
ion and engage in concerted activities or to discourage
employees from engaging in these activities.
(d) Failing and refusing to bargain collectively and in
good faith with 318 Restaurant Workers Union as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit with respect to
the effects of its decision to cease operations at its New
York, New York facility:
All full-time and regular part-time dining room em-
ployees, including bus persons, waiters, captain, hosts
and dim sum sellers employed by Respondent at its fa-
cility. And excluding guards, professionals, kitchen
employees and supervisors as defined in the National
Labor Relations Act, as amended.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) In the event that the Respondent resumes opera-
tions, offer Sky Wong and Sai Qin Chen full reinstate-
ment to their former positions or, if those positions no
EAST MARKET RESTAURANT, INC. 5
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
(b) Make Sky Wong and Sai Qin Chen whole for any
loss of earnings and other benefits they may have suf-
fered as a result of its unlawful conduct, with interest, in
the manner set forth in the remedy section of this deci-
sion.
(c) Compensate Sky Wong and Sai Qin Chen for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards, and file a report with the Social Securi-
ty Administration allocating the backpay awards to the
appropriate calendar quarters.
(d) Within 14 days from the date of this Order, re-
move from its files any and all references to the unlawful
discharges of Sky Wong and Sai Qin Chen and, within 3
days thereafter, notify them in writing that this has been
done and that its unlawful conduct will not be used
against them in any way.
(e) On request, bargain collectively and in good faith
with the Union concerning the effects of the Respond-
ent’s decision to cease operations at its New York, New
York facility, and reduce to writing and sign any agree-
ment reached as a result of such bargaining.
(f) Pay the unit employees their normal wages for the
period set forth in the remedy section of this decision,
with interest.
(g) Compensate unit employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards and file a report with the Social Security Admin-
istration allocating the backpay awards to the appropriate
calendar quarters for each employee.
(h) 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.
(i) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix,”6 in English as
well as Mandarin, Cantonese, Foo Zhu, and any other
dialects spoken by the employees, to the Union and to

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the last known addresses of all unit employees who were
employed by the Respondent at any time since Novem-
ber 26, 2013. In addition to physical mailing of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
(j) Within 21 days after service by the Region, file
with the Regional Director for Region 2 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.
Dated, Washington, D.C. June 30, 2015
Mark Gaston Pearce, Chairman
Philip A. Miscimarra, Member
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
MAILED 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 mail 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 threaten employees with criminal charg-
es, unspecified reprisals, or discharge because they en-
gage in concerted activities.
WE WILL NOT threaten to close the restaurant to dis-
courage employees from engaging in protected concerted
and union activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
WE WILL NOT discharge employees because they join
the Union and engage in concerted activities or to dis-
courage employees from engaging in these activities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with 318 Restaurant Workers Union as
the exclusive collective-bargaining representative of our
unit employees with respect to the effects of our decision
to cease operations at our New York, New York facility.
The bargaining unit is:
All full-time and regular part-time dining room em-
ployees, including bus persons, waiters, captain, hosts
and dim sum sellers employed by Respondent at its fa-
cility. And excluding guards, professionals, kitchen
employees and supervisors as defined in the National
Labor Relations Act, as amended.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, in the event that we resume operations, offer
Sky Wong and Sai Qin Chen full reinstatement to their
former positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
WE WILL make Sky Wong and Sai Qin Chen whole for
any loss of earnings and other benefits they may have
suffered as a result of our unlawful conduct, with inter-
est.
WE WILL compensate Sky Wong and Sai Qin Chen for
the adverse tax consequences, if any, of receiving lump-
sum backpay awards, and WE WILL file a report with the
Social Security Administration allocating the backpay
awards to the appropriate calendar quarters for each em-
ployee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
unlawful discharges of Sky Wong and Sai Qin Chen, and
WE WILL, within 3 days thereafter, notify them in writing
that this has been done and that our unlawful conduct
will not be used against them in any way.
WE WILL, on request, bargain collectively and in good
faith with the Union concerning the effects of our deci-
sion to cease operations at our New York, New York
facility, and WE WILL reduce to writing and sign any
agreement reached as a result of such bargaining.
WE WILL pay our unit employees their normal wages
for the period set forth in the Board’s decision, with in-
terest.
WE WILL compensate our unit employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file a report with the So-
cial Security Administration allocating the backpay
awards to the appropriate calendar quarters for each em-
ployee.
EAST MARKET RESTAURANT, INC.
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-120982 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.