East Village Grand Sichuan Inc. d/b/a Grand Sichuan Restaurant

National Labor Relations Board - Administrative Judge Opinions

Jan 14, 2016

02-CA-143468 (N.L.R.B. Jan. 14, 2016)

JD(NY)-02-16
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK OFFICE
EAST VILLAGE GRAND SICHUAN INC. D/B/A
GRAND SICHUAN RESTAURANT
and Case No. 02-CA-143468
CHINESE STAFF & WORKERS ASSOCIATION
Joane Si Ian Wong, Esq., for the General Counsel.
Curt Donald Schmidt, Esq. (Law Office of Thomas D.
Gearon), Flushing, NY, for the Respondent.
Margaret E. McIntyre, Esq., New York, NY, for the Union.
DECISION
Statement of the Case
STEVEN DAVIS, Administrative Law Judge: Based on a charge filed by Chinese Staff
& Workers Association (Union) on December 23, 2014, a complaint was issued against East
Village Grand Sichuan Inc. d/b/a/ Grand Sichuan Restaurant (Respondent) on August 31, 2015.
The complaint alleges that the Respondent discharged its employee Fang Xiao because
she engaged in protected concerted activity by filing a civil action against the Respondent in
U.S. District Court which alleged violations of the Fair Labor Standards Act and the New York
Labor Law.1
The Respondent’s answer denied the material allegations of the complaint and a hearing
was held before me in New York, NY on November 8, 10, 12, and 30, 2015.
On the entire record,2 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following:
Findings of Fact
I. Jurisdiction
The Respondent, a corporation having its place of business at 19-23 St. Marks Place,
New York, NY, is engaged in the operation of a public restaurant serving and delivering food

1 The complaint also alleged that the Respondent unlawfully discharged employee Chang
Hui Lin. However, on October 19, 2015, the charge alleging his discharge was withdrawn and
the complaint’s allegations concerning his discharge were dismissed. Accordingly, Lin’s
discharge is not before me.
2 The General Counsel’s unopposed motion to correct the transcript is granted and received
in evidence as G.C. Exhibit 22. During the hearing, the Respondent made a motion to dismiss
the complaint and for summary judgment. The motions are hereby denied.
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and beverages to individual customers. The Respondent’s answer denied that it was engaged in
interstate commerce. However, during the hearing, it agreed to a stipulation entered into in a
prior case involving these parties.3 That stipulation stated that “annually, the Respondent
purchases and receives at its New York facility, products, goods, and materials valued in excess
of $5,000 directly from points located outside New York State.”
In addition, the Respondent’s U.S. Income Tax Return for the period June 1, 2013 to
May 31, 2014, stated that its gross sales were $1,223,279. Thus, the Respondent meets the
Board’s standards for the assertion of jurisdiction, and I accordingly find and conclude that the
Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and
(7) of the Act.
II. The Facts
A. Xiao’s Discussions with her Co-Workers
Fang Xiao began work for the Respondent in August, 2008. She worked as a “busboy”
throughout her employment. Her duties included preparing tea, clearing dirty dishes from the
tables, re-filling customers’ water glasses and cleaning the bathroom. Her co-workers included
three waiters/waitresses and three busboys. Tips received by the wait staff and the busboys
were combined at the end of each day. Busboys earned one-half the amount of the tips that the
waiters earned.
Xiao is a native of Fuzhou, China whose residents speak Fuzhounese, which is
apparently spoken exclusively by those residents. Her fellow employees who spoke
Fuzhounese were Xing Duan Jiang, Chang Hui Lin, and Xue Qin Tang4.
Xiao took coffee breaks from work once or twice per week with co-workers Ah Ying, Min
Fu, Xing Duan Jiang, Chang Hui Lin, and Xue Qin Tang. During those breaks, which took place
after lunch when they left the restaurant for coffee, they spoke about their working conditions
including the Respondent’s failure to pay them the minimum wage and for overtime work, their
long work hours, and the requirement that they purchase their work uniforms.
Their discussions culminated in a lawsuit filed against the Respondent in U.S. District
Court in November, 2012, by Xiao’s co-workers Xing Duan Jiang, Chang Hui Lin, and Xue Qin
Tang, and four others. It alleged that the employees were not paid proper wages under the New
York Labor Law or the Fair Labor Standards Act. (FLSA).
Xiao did not join the lawsuit because she intended to travel to China and because she
began work at a friend’s restaurant. She told the plaintiffs that she had no time to become
involved in the action. Xiao visited China from March, 2012 to April, 2012.
After her return from China, Xiao worked at a different restaurant and then left New York
to work at her friend’s restaurant. She stopped work there in late 2012. In early 2013, Xiao
returned to New York. The Respondent’s admitted supervisory manager Tian Sheng Wang
called and asked her to return to work at the Employer’s restaurant. She worked for the

3 East Village Grand Sichuan, Inc., d/b/a Grand Sichuan, JD(NY)-81-3.
4 A “name chart,” G.C. Exhibit 11, lists the English name, Chinese name, and nickname for
persons mentioned at the hearing. I have used the English name of each person since that was
the name the witnesses used. Nicknames were also used at the hearing.
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Respondent from early 2013 through May, 2014.
Xiao gave uncontradicted testimony that manager Wang, who did not testify, spoke to
her about five times concerning employees Xing Duan Jiang, Chang Hui Lin, and Xue Qin Tang,
her Fuzhounese co-workers who were the plaintiffs in the 2012 Federal lawsuit.
In their first conversation, Wang told her that the three were not “personable people.
They work at the restaurant at this time but they are also suing the restaurant at the same
time…. They are part of the worker union; so no hanging out with them.” Xiao replied that Wang
should not bother them.
Xiao continued to take her breaks with the three employees identified by Wang, and that
practice continued until she was discharged in May, 2014.
Later, in March or April, 2013, Wang told Xiao that the three employees wanted to work
at the restaurant but at the same time were suing the company and attempting to receive some
benefits. Xiao responded by saying that they were “fighting” to obtain the “minimum wage”
which is “normal and fair.” Wang angrily replied “if you analyze this or be like this, the Boss will
not like it.” Xiao continued taking breaks with those workers.
In August, 2013, Wang directed Xiao not to “hanging out with them. If you continue
hanging out with them, the Boss will not like you.” Xiao asked him why she should not meet with
them because they are “doing what they are doing and I’m doing my own thing. We just hanging
out.” Wang angrily told her “I don’t care, and if you continue like this, the Boss will not like you
and he’s kind of upset… don’t listen or don’t hang out with them.”
In November, 2013, Wang asked Xaio in an angry manner “why you don’t listen to me?
Why you keep hanging out with them? You continue hanging out with them. Boss will not like
you.” Xiao replied that they were doing “our own thing. We don’t bother each other. Why the
boss don’t like us just going out to have coffee?” Wang responded “you don’t listen so I don’t
care about you. You just like to hang out with them.”
Their last conversation concerning her co-workers occurred in February, 2014. Wang,
speaking in an angry, very strong voice, asked Xiao “why you going out with them, hanging out
with them? Why don’t you listen to me? The Boss don’t like you going out with them.” Xiao
replied that they were “suing the restaurant for the minimum wage and I can do that. Why you
don’t like me going out with them?” Wang replied “if you continue going out with them, the
Boss will not like you, and I’m not going to care about you anymore.” Xiao replied that she would
not care about him either.
During the time that Wang warned Xiao not to associate with her three co-workers, she
nevertheless continued to meet with the three Federal court plaintiffs during their breaks.
In about February or March, 2014, Xiao spoke to co-worker and busboy Ah Ying about
two or three times concerning the need to receive a greater portion of the tips. At about that
time, manager Wang was replaced by admitted statutory supervisor Wen Yan Gao, called
“Sister Gao.”
In late March or April, 2014, Xiao told Sister Gao that she has been working at the
restaurant a long time, and asked if she would “increase the tips.” Gao told her that she had to
speak with Xiao Tu Zhang, known as “Boss Zhang.” A few days later, Gao told Xiao that Boss
Zhang denied her request.
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B. Xiao’s Workplace Injury
At the end of the shift on May 28, 2014, as was the practice, all the tips received by the
waiters and busboys were combined. The waiters received a full share of the tips and the
busboys a half share. The money was then distributed to the workers. Yan Hua Li, also known
as Qi Qi, gave Xiao her money. Xiao immediately protested that she did not receive the correct
amount of her share. Qi Qi slapped the table, saying that she would not pay her more than she
had. Xaio said that Qi Qi “cannot do that to me.” Qi Qi said she was and that she did not care.
Qi Qi told Sister Gao that Xiao should not receive more money than she received
because she was lazy. Sister Gao told her that Xaio helped her and she should be paid what
she was entitled to. Qi Qi then spat at Xiao who spat at her in return. Qi Qi then grabbed Xiao’s
hair and punched her head. Xiao fell to the floor. Xiao’s husband came and called the police.
Xiao went to the hospital where she received a “return to work statement” which stated
that she may return to work without restrictions one month later, on June 29.
Boss Zhang visited Xaio at her home on June 1. He asked what happened and when
told that Xaio did not cause the altercation, said that Sister Gao would investigate. Zhang told
her to “just get rest. I hope you can go to work.” He told her to keep her medical records, but
that he would pay her. Xaio stated that she was not paid by the Respondent for the time she did
not work after her injury or for her medical expenses.
On June 21, Zhang called Xaio and was told that she continued to have headaches.
Zhang told her to rest and “don’t rush to return to work.” In late July, Zhang called again and
asked where she was. Xiao told him that “I was at the China Town, the worker union.” Zhang
said that he would call her again, but did not. Xaio testified that the Union helped her file the
charge in this case, and also assisted workers in filing their minimum wage and other lawsuits.
C. The Physician’s Notes
Xaio stated that in June and July she had intermittent pain, dizziness and headaches.
She filed a claim for workers compensation and on July 7, 2014 visited physician Dr. Frantz
Jasmin who wrote a note which stated that she was being treated for (a) post-concussion (b)
neck pain and (c) pain in both shoulders. The note stated that she was currently “disabled as a
worker until re-evaluation in 4 weeks.” Xaio gave the note to employee Min Fu to present to
Sister Gao. Min Fu testified that he did so.
One month later, on August 4, Dr. Jasmin wrote that Xaio was seen for “both shoulders,
neck and head injuries” and was disabled from work for four weeks. Xaio gave this note to
Sister Gao a day or two later. Sister Gao appeared unhappy at receiving the note.
Xaio stated that during September, she experienced headaches, dizziness and shoulder
pain. She visited Dr. Jasmin that month. His September 3 note was identical to the July 14 note
and also indicated that she was disabled from work for four weeks. Xaio gave the note to Sister
Gao.
On October 1, Dr. Jasmin wrote that Xaio was being treated for headaches and shoulder
pain, and was disabled from work for four weeks. She gave the note to Sister Gao who, at
hearing, admitted receiving it.
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Xaio testified that when she gave the notes to Sister Gao, she did not ask to return to
work because she did not know when she would able to return to work or when she would be
fully recovered. Therefore, she could not tell Sister Gao when she would return to work.
Xaio conceded that in November, 2014, Dr. Jasmin told her that he could not say that
she could “fully” return to work, but that she could “try to work.” He did not give her a note that
month or in December that she was disabled from work.
Xaio testified that she did not return to work for the Respondent in November or
December because she was not fully recovered, and was not certain that she was capable of
working on a full time basis as she had in the past. She reasoned that she preferred not to
return to work for the Respondent only to find that she was capable of working only one or two
days and then having to give an excuse for not being able to work.
However, in November, Xaio applied for work as a busboy at four restaurants. At three
of the restaurants she agreed to start work on a specific day. However, when that day arrived,
she felt dizzy, had headaches and believed that she could not work. She did not report to work.
She worked one day at the fourth restaurant, located in Connecticut. The following day she
experienced headaches and did not return to work. Although she was asked to return again to
try to work at some of those restaurants, she did not.
Notwithstanding that she tried to work at four restaurants in November, 2014, Xaio did
not communicate with the Respondent in November or December in an effort to return to work,
or for any other reason.
Xaio stated that, in December, 2014, she told Dr. Jasmin that she was always feeling
dizzy. Another physician recommended an injection of some type or physical therapy.
D. Xaio Files a Federal Lawsuit
In August, 2014, Xiao spoke to co-workers Min Fu, Chang Hui Lin, Ah Ying, and Fu Xiao
about joining her in filing a lawsuit against the Respondent for its failure to pay them the
minimum wage. She urged them to become “united together to sue the restaurant.” She told
them that they had been working for the Respondent for a long time at long hours and have not
been treated very well. She spoke to Ah Ying two or three times about the need to sue the
Respondent.
On November 13, 2014, Xiao filed a complaint against the Respondent in U.S. District
Court alleging violations of the Fair Labor Standards Act and the New York State Labor Law in
its failure to pay her the minimum wage, pay for overtime work, and withholding tip money.
After she filed the suit she again asked Min Fu several times and she also asked Ah
Ying, Min Fu and Chang Hui Lin to join the suit. She told Min Fu that a lawsuit was necessary to
require the Respondent to pay the minimum wage, and to stop it from requiring them to
purchase their own uniforms. She urged, “why don’t we put together to the Boss?” Min Fu
corroborated Xaio’s statement that she asked him five or six times to join her lawsuit, saying
that the Respondent did not treat them fairly, urging him to “join together to sue.” On August 11,
2015, Min Fu filed his own lawsuit against the Respondent alleging the same violations as those
set forth in Xiao’s complaint.
Ah Ying and Min Fu told Xaio that they were undecided about joining her lawsuit, but
Chang Hui Lin agreed. On April 30, 2015, Xiao’s complaint was amended to include Chang Hui
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Lin.
E. Xaio Attempts to Return to Work With the Respondent
Min Fu began work in September, 2013, and quit in May, 2014. He returned to work one
month later. He testified that In July, 2014, Sister Gao told him that Xaio had no illness and was
just “acting out.” She also told him that the “Fuzhounese speakers, they are united, they want to
sue the restaurant to make money.”
Min Fu further testified that in September, 2014, following the discharge of employee
Dayong Chen, he heard Sister Gao say that “all Fuzhounese, they are united, and Dayong
Chen will sue me.”
After Chang Hui Lin was fired in October, 2014, Min Fu heard Sister Gao say that “all the
Fuzhounese, they want to sue the restaurant, sue the boss to make the money.” Min Fu recalled
that after employee Xue Qin Tang stopped work in late October, 2014, Sister Gao said that Xue
Qin Tang would sue her. She further said that she (Gao) would not take the same course of
action as Boss Zhang by paying the employees. Rather, she will “fight to the end."
On January 2, 2015, Xaio entered the Respondent’s restaurant with Chang Hui Lin, and
asked cashier Phoebe to see Sister Gao. Phoebe said that she was in the kitchen and asked
her to wait. Xaio stated that Sister Gao exited the kitchen and approached her with a “very mad
face.” Xaio asked her “can you arrange what time for me to return to work?”
Sister Gao replied “you coming back to work? You suing the Boss? You suing the
restaurant, and now you want coming back to the restaurant to work? This is not right. Go look
for your lawyer. You want to come back to work?” Xaio concluded that Sister Gao “not allow me
back to work.”
Min Fu was present during this exchange, and testified in detail about the confrontation.
He stated that he was standing near the restaurant’s door and greeted Xaio as she entered. He
saw Sister Gao leave the kitchen and tell Xaio “you sued the restaurant and now you want to
come back to work.” He corroborated Xaio’s version of her exchange with Sister Gao, adding
that Sister Gao spoke in a very loud, high pitched voice.
Analysis and Discussion
The complaint alleges that the Respondent discharged Xiao because she engaged in
protected concerted activity by filing a civil action against the Respondent in U.S. District Court
which alleged violations of the Fair Labor Standards Act and the New York Labor Law.
The question of whether the Respondent unlawfully discharged Xaio is governed by
Wright Line, 251 NLRB 1083, 1084 (1980). Under that test, the General Counsel must prove by
a preponderance of the evidence that animus toward Xaio’s concerted activity was a substantial
or motivating factor in the decision to discharge her. The General Counsel must show that Xaio
engaged in concerted activity, employer knowledge of such activity, and animus toward such
conduct by the Respondent.
Once the General Counsel has made the requisite showing, the burden then shifts to the
Respondent to prove, as an affirmative defense, that it would have discharged Xaio even in the
absence of her concerted activity.
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To establish this affirmative defense “an employer cannot simply present a legitimate
reason for its action but must persuade by a preponderance of the evidence that the same
action would have been taken even in the absence of the protected activity.” L.B.&B.
Associates, Inc., 346 NLRB 1025,1026 (2006). “The issue is, thus, not simply whether the
employer ‘could have’ disciplined the employee, but whether it ‘would have’ done so, regardless
of [her protected] activities.” Carpenter Technology Corp., 346 NLRB 764, 773 (2006).
The General Counsel’s Case
Xaio engaged in concerted activities by conversing with her fellow, Fuzhounese-
speaking co-workers once or twice per week concerning their working conditions. Three of
those co-workers filed a federal lawsuit thereafter in 2012 alleging as violations the very same
matters they spoke about during their breaks.
Xaio also asked Sister Gao if the tips could be increased. Her request was concerted
because it addressed the wage concerns of other employees.” Salisbury Hotel, 283 NLRB 685,
686-687 (1987). Her request reflected the complaints of other workers that their tips were
unlawfully inadequate. In fact, the federal lawsuit alleged that they were not paid their proper
tips.
Further, employees’ “discussion of wages is protected concerted activity because wages
are a ‘vital term and condition of employment,’ probably the most critical element in employment
and the grist on which concerted activity feeds.” Aroostook County Regional Ophthalmology
Center, 317 NRLB 218, 220 (1995).
In addition, Xiao’s filing of the federal lawsuit alleging improper wage payments
constitutes protected, concerted activity. U Ocean Palace Pavilion, Inc., 345 NLRB 1162, 1170
(2005).
Prior to the filing of her lawsuit, Xaio spoke to fellow workers about their need to join
together to sue the Respondent for its failure to pay the minimum wage.
The Respondent’s knowledge of her conversations with her fellow workers is clearly
established in manager Wang’s warnings to her in 2013 that she should not “hang out” with the
three plaintiffs because they were suing the restaurant and were part of the workers union. He
told her the Boss would not like her to associate with them, would not like her for doing so, and
that he would not care about her. Despite the warnings that she stay away from those
employees she told Wang that she would continue to take breaks with them and that he should
not bother them. Her insistence that she would disobey his order to disassociate with them
made it clear that she was in league with them in their attempts to remedy the alleged improper
workplace issues they faced.
Similarly, the Respondent’s knowledge that she brought a lawsuit against the
Respondent, and its animus toward her for doing so is established in Sister Gao’s angry refusal
to permit her to return to work, saying that she sued the restaurant and now wants to work for it?
Gao’s adding that “this is not right” demonstrates Sister Gao’s animus toward her because she
filed the lawsuit.
Respondent’s animus toward Xaio and her Fuzhounese co-workers is also amply
demonstrated by Sister Gao’s telling Min Fu that the Fuzhounese speakers are united and want
to sue the restaurant, and that she would “fight to the end.” Of course, as the Respondent
argues, there is nothing unlawful in the Respondent’s desire to defend the lawsuits against it.
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However, its discharge of Xaio for suing the restaurant violates the Act.
Xaio gave uncontradicted testimony about her visit to the Respondent’s premises on
January 2, 2015 at which she asked Sister Gao what time she could return to work. Gao
sarcastically replied that Xaio is suing the Boss and the restaurant and wants to return to work,
adding “this is not right,” advising that she “look for your lawyer.”
I credit Xaio’s interpretation that this exchange constituted her discharge. She
understood that she could no longer work at the restaurant. She stated that Gao did not allow
her to return to work. No words of art are necessary to establish a discharge. Indeed, the
Respondent’s answer admitted that it discharged Xaio.
Based on the record evidence, I find that the General Counsel has proven that the
Respondent was motivated in discharging Fang Xiao by her filing the Federal lawsuit alleging
that it failed to lawfully compensate her. Wright Line, above.
The Respondent’s Case
The Respondent’s answer to the complaint admits that it discharged Xaio on January 2.
However, no evidence was adduced as to why it discharged her. Gao, the Respondent’s
witness, did not contradict or deny Xaio’s testimony that when she appeared for work she was
simply told that she sued the restaurant and expected to be rehired?
The Respondent changed its position, arguing in its brief that it did not discharge Xaio.
Rather, it argues that it not have to do so because she abandoned her position. Shifting of
positions is evidence of unlawful motivation. Naomi Knitting Plant, 328 NLRB 1279, 1283 (1999)
(shifting reasons constitute evidence of discriminatory motivation); Black Entertainment Television,
324 NLRB 1161 (1997) (Board noted Respondent's shifting explanations given in its position
statement and its assertions at the hearing for reducing hours and laying off of employees. “The
Board has long expressed the view that when an employer vacillates in offering a rational and
consistent account of its actions, an inference may be drawn that the real reason for its conduct is
not among those asserted,” Sound One Corp., 317 NLRB 854, 858 (1995); Mastercraft Casket Co.,
289 NLRB 1414, 1420 (1988), enfd. 881 F.2d 542 (8th Cir. 1989). I infer that the reasons given for
discharging Xaio, including her alleged abandonment of her job, are not the true reasons for the
Respondent’s refusal to add her to the work schedule.
The Employer further argues that, even assuming that it fired Xaio, it did so lawfully
because she did not appear to work for 60 days from the time, in November, 2014, that her
physician did not provide a statement of disability.
Sister Gao testified that after receiving Dr. Jasmin’s notes that Xaio was disabled for
each month she did not take any action concerning them. Rather, she simply noted that she
“has excuse from work.” She did not know when she would return to work, but she expected,
thought and hoped that she would hear from Xiao at the expiration of the four weeks noted in
the documents.
Certainly, Sister Gao said nothing to Xaio on January 2 concerning her alleged
abandonment of her job. She did not tell her that she had been absent from work for too long a
period of time. Nor could she have done so since Xaio was absent from work for about one
year, from March, 2012 to early 2013 due to a trip to China and her work in another restaurant.
No complaint was made to her about being away from work for so long, and there was no
evidence that she was in contact with the Respondent during that period of time. In fact,
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manager Wang called her in early 2013 and asked her to return to work, which she did. Further,
there was no evidence that the Respondent had a policy or any standards concerning the
amount of time a worker could be absent from work. Accordingly, the Respondent’s defense
that Xaio abandoned her job or that it would have fired her for her absence has no merit.
Further, it appears that the Respondent was anxious to have Xaio return to work until it
was told the she was seeking the help of the union and until it received the lawsuit she filed.
Thus, manager Wang visited her at home in June after her injury. Later that month, he told her
to rest. When Xaio told him in July that she was at the union’s premises, he said he would call
her again but did not. Further, Gao testified that when she received the physician’s notes she
hoped that she would return to work.
That friendly attitude changed when Xaio filed the lawsuit in August, 2014. When she
attempted to return to work four or five months later, she was discharged.
The Respondent argues that Xaio’s failure to advise the Respondent that she wanted to
return to work, following the advice from her physician in November, 2014 that she should try to
work, establishes that she abandoned her job. Xaio admittedly did not communicate with and
had no contact with any of the Respondent’s managers from the time that Dr. Jasmin suggested
in early November that she try to work, until January 2, 2015, when she asked to return.
According to the Respondent, Xaio’s failure to tell the Respondent during that period of
time that she was no longer disabled, that she claimed to continue to be disabled, that she was
not seeking employment elsewhere, or that she had not abandoned her job with the Employer,
established that she intended to abandon her job.
The Respondent asserts that following its receipt of physicians’ notes in May, and July
through October, 2014 that she continued to be disabled from work, it “continued to hold her job
available.” However, when Xaio failed to provide similar notices of disability in November and
December, when it did not hear from Xaio, it concluded that she was no longer interested in
resuming work at the restaurant.
The Respondent asserts that it should not have to “hold open indefinitely” Xaio’s position
when she did not “fulfill her obligations to the restaurant” by notifying it of her continued disability
or her interest in returning to work during the months of November and December.
It therefore follows, argues the Respondent, that it was entitled to conclude that Xaio
abandoned her job when she did not provide a physician’s notice of disability in November or
December, 2014 as she had in the past, and had also not sought to return to her job or
communicate with the Respondent.
The Board has held that “in order to establish abandonment of employment … an
employer must present ‘unequivocal evidence of intent to permanently sever [the striker’s]
employment relationship…’” L.B.&B. Associates, Inc., 346 NLRB 1025, 1029 (2006). The
Respondent has made no showing that Xaio unequivocally intended to permanently sever her
employment relationship with the Employer.
In fact, during the course of her treatment for her injury, Xaio timely presented
physicians’ notes of her disability to the Respondent. Her only lapse was in the months of
November and December which was due to the fact that she received none in those months.
She then asked for her job in January. However, Xaio was not notified during that time that she
was discharged or that she had been replaced. Further, as set forth above, Xaio was absent
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from work for nearly one year and was asked, by the Respondent, to return to work after that
lengthy absence.
Moreover, the Respondent argues that Xaio’s actions in seeking work at four other
restaurants in November, 2014, establish her intent to abandon her job with the Respondent.
The fact that Xaio sought other employment does not prove that she abandoned her job.
She stated that she tried to work pursuant to Dr. Jasmin’s advice but found that she was unable
to do so. Her explanation was understandable that she sought work in jobs where she could
stop work without difficulty. She credibly reasoned that if she returned to work full time at the
Respondent and found that she was unable to work she would have to make an excuse for not
being able to work.
Accordingly, I cannot find that Xaio abandoned her job with the Respondent. I also find
and conclude that the Respondent has not met its burden of proving that it would have
discharged Fang Xaio even in the absence of her protected, concerted activities. Wright Line,
above.
Conclusions of Law
1. The Respondent, East Village Grand Sichuan Inc. d/b/a Grand Sichuan Restaurant, is
an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by discharging its employee Fang
Xiao.
3. The unfair labor practices set forth above are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
The 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 to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged and refused to reinstate Fang Xiao,
it must offer her reinstatement to her former position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to her seniority or any other rights or
privileges she would have enjoyed absent the discrimination against her. Further, I shall
recommend that the Respondent make her whole for any loss of earnings and other benefits
suffered as a result of the discrimination against her.
Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010),
enf. denied on other grounds sub. nom. Jackson Hospital Corp. v NLRB, 647 F.3d 1137 (D.C.
Cir. 2011). In accord with Tortillas Dan Chavas, 361 NLRB No.10 (2014), my recommended
Order also requires the Respondent to (1) submit the appropriate documentation to the Social
Security Administration so that when backpay is paid to Xiao, it will be allocated to the
appropriate calendar quarters, and/or (2) reimburse her for any additional Federal and State
income taxes she may be assessed as a consequence of receiving a lump-sum backpay award
covering more than 1 calendar year.
JD(NY)-02-16
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In accordance with the Board's decision in J. Piccini Flooring, 356 NLRB No. 9, slip op.
at 5-6 (2010), I shall recommend that the Respondent be required to distribute the attached
notice to members and employees electronically, if it is customary for the Respondent to
communicate with employees and members in that manner. Also in accordance with that
decision, the question as to whether a particular type of electronic notice is appropriate should
be resolved at the compliance stage. J. Piccini Flooring, above, slip op. at 3. See Teamsters
Local 25, 358 NLRB No. 15 (2012).
The General Counsel asks that I recommend that Xaio be awarded reimbursement of
expenses incurred while she sought interim employment. Inasmuch as the Board has not
awarded such a remedy, I shall not do so here.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended5
ORDER
The Respondent, East Village Grand Sichuan Inc. d/b/a Grand Sichuan Restaurant, New
York, NY, its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Discharging employees because of their concerted activities.
(b) 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 Fang Xiao full reinstatement to
her former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges previously enjoyed.
(b) Make Fang Xiao whole for any loss of earnings and other benefits suffered as a result of
the discrimination against her, in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any reference to
the unlawful discharge, and within 3 days thereafter notify Fang Xiao in writing that this has
been done and that the discharge will not be used against her in any way.
(d) Within 14 days after service by the Region, post at its facility in New York, NY, copies of
the attached notice marked “Appendix.” 6 Copies of the notice, on forms provided by the

5 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.
6 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
Continued
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Regional Director for Region 2, 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. In
addition to physical posting of paper notices, the 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 customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered
by any other 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 November
13, 2014.

(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place 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.
(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
the Respondent has taken to comply.
Dated, Washington, D.C. January 14, 2016
____________________
Steven Davis
Administrative Law Judge
_________________________
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(NY)-02-16
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 discharge you because of your protected, concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order, offer Fang Xiao full
reinstatement to her former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL within 14 days of the date of the Board’s Order, make Fang Xiao whole for any
loss of earnings and other benefits suffered as a result of the discrimination against her.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge, and within 3 days thereafter notify Fang Xiao in writing that
this has been done and that the discharge will not be used against her in any way.
EAST VILLAGE GRAND SICHUAN INC. d/b/a
GRAND SICHUAN RESTAURANT
(Employer)
Dated By
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.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
The Administrative Law Judge’s decision can be foun
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,
20570, or by calling (202) 273-1940.
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
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212
d at www.nlrb.gov/case/0
S.E., Washington, D.C.
BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
-264-0346.
2-CA-143468 or