Mexican Radio Corp.

National Labor Relations Board - Board Decisions

Apr 20, 2018

366 NLRB No. 65 (N.L.R.B. 2018)

366 NLRB No. 65
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.
Mexican Radio Corp. and Rachel Nicotra. Case 02–
CA–168989
April 20, 2018
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On April 26, 2017, Administrative Law Judge Kenneth
W. Chu issued the attached decision. The Respondent
filed exceptions with supporting argument, and the Gen-
eral Counsel filed an answering brief. In addition, the
General Counsel filed limited cross-exceptions and a
supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions, as
modified herein, and to adopt the recommended Order
as modified and set forth in full below.2
1. We agree with the judge that employees Tangni
Fagoth, Stephanie Garcia, Nadgie Santana, and Juliana
Palomino engaged in protected concerted activity when
they replied in agreement to a group email written by a
former employee, Annette Polanco, that complained
about wages, work schedules, tip policies, working con-
ditions, and management’s treatment of employees.3 We
further agree that their replies were not so egregious as to
cause them to lose the protection of the Act. As the
judge noted, the email was part of an ongoing dialogue
between the workers and the Respondent and was a reac-
tion to the Respondent’s failure to correct the problems
perceived by the employees; the email contained little
profanity and was merely a critique of the Respondent’s
management style; the employees did not add to the
email with any negative comments of their own; the

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 We shall modify the judge’s recommended Order to conform to the
violations found and to the Board’s standard remedial language, and we
shall substitute a new notice to conform to the Order as modified.
3 The Respondent excepts to the judge’s findings pertaining to
events not specifically pled in the complaint. We rely on these findings
merely as background evidence. Cf. CSC Holdings, LLC and Cablevi-
sion Systems New York City Corp., 365 NLRB No. 68, slip op. at 4 fn.
14 (2017).
email was nonpublic and did not cause a loss of reputa-
tion or business for the Respondent; and there was no
disruption of business.
To the extent that the Respondent contends that the
discharges were based on reasons other than responding
in agreement to Polanco’s email, we agree with the
judge's finding that these other purported reasons were
pretextual. Therefore, the Respondent failed to meet its
burden of showing that it would have taken the same
action absent the protected activity. Rood Trucking Co.,
342 NLRB 895, 897–898 (2004).
Accordingly, because the Respondent’s decision to
reprimand and discharge these four employees was based
on their protected concerted activity, the Respondent
violated Section 8(a)(1) of the Act by its actions.
2. We find merit in the General Counsel’s exception
to the judge’s failure to find that the Respondent violated
Section 8(a)(1) when it retroactively issued Tangni Fag-
oth a written reprimand on November 5, 2015.4 This
reprimand concerned Fagoth’s purported failure to notify
management immediately about an incident that occurred
on October 9, in which an employee allegedly threatened
the kitchen staff with a knife. After her discharge, Fag-
oth, along with the other three discriminatees, filed an
unemployment claim with the New York State Depart-
ment of Labor. Upon receiving notification of Fagoth’s
unemployment claim, the Respondent drafted a repri-
mand for the October 9 incident and backdated it to Oc-
tober 10, despite the Respondent’s failure to issue Fagoth
any discipline at the time of the incident.
We find that this allegation is, at the very least, closely
connected to the subject matter of the complaint and was
fully litigated at the hearing, as would be required by
Pergament United Sales, 296 NLRB 333 (1989), enfd.
920 F.2d 130 (2d Cir. 1990), to find a violation not al-
leged in the complaint.5 Furthermore, the evidence
shows that until Fagoth sought compensation for this
unlawful discharge, the Respondent did not seek to dis-
cipline her for this incident. Therefore, Fagoth’s protect-
ed concerted activity prompted the Respondent to unlaw-

4 All dates hereinafter are in 2015, unless otherwise indicated.
5 The complaint, as amended at the hearing without objection by the
Respondent, alleges in pars. 6(c), (e), and (f) that on or about October
30, the Respondent prepared and/or issued reprimands to Fagoth be-
cause she engaged in protected concerted activities and to discourage
employees from engaging in such activities. Contrary to the judge’s
statement that the reprimand issued to Fagoth on November 5, and
backdated to October 10, “was not raised as an allegation in the com-
plaint and need not be addressed,” we find that an allegation concerning
this backdated reprimand is in all practical terms identical to and en-
compassed by the allegation in pars. 6(c), (e), and (f) and thus is at the
very least closely related to the subject matter of the amended com-
plaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
fully issue this reprimand. As a result, we find that the
Respondent violated Section 8(a)(1) by retroactively is-
suing the October 10 reprimand to Fagoth.
ORDER
The National Labor Relations Board orders that the
Respondent, Mexican Radio, Corporation, New York,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or disciplining employees because
they engaged in protected concerted activities.
(b) 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) Within 14 days from the date of this Order, offer
Tangni Fagoth, Stephanie Garcia, Nadgie Santana, and
Juliana Palomino full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make Tangni Fagoth, Stephanie Garcia, Nadgie
Santana, and Juliana Palomino whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the decision.
(c) Compensate Tangni Fagoth, Stephanie Garcia,
Nadgie Santana, and Juliana Palomino for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 2,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(d) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful dis-
charges and disciplines of Tangni Fagoth, Stephanie
Garcia, Nadgie Santana, and Juliana Palomino and all
references to any notes, memoranda, and any other writ-
ten documents prepared in response to and in defense of
the unemployment insurance claims filed by them with
the New York State Department of Labor, and within 3
days thereafter, notify the employees in writing that this
has been done and that the discharges, disciplines, and
any of these other documents will not be used against
them in any way.
(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 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.
(f) Within 14 days after service by the Region, post at
its New York, New York facility copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting 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.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If 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 em-
ployees and former employees employed by the Re-
spondent at any time since October 29, 2015.
(g) 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. April 20, 2018
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MEXICAN RADIO CORP. 3
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you because you engaged in protected
concerted activities.
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, within 14 days from the date of the Board’s
Order, offer Tangni Fagoth, Stephanie Garcia, Nadgie
Santana, and Juliana Palomino full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
WE WILL make Tangni Fagoth, Stephanie Garcia,
Nadgie Santana, and Juliana Palomino whole for any loss
of earnings and other benefits resulting from their dis-
charges, less any net interim earnings, plus interest, and
WE WILL also make such employees whole for their rea-
sonable search-for-work and interim employment ex-
penses, plus interest.
WE WILL compensate Tangni Fagoth, Stephanie Gar-
cia, Nadgie Santana, and Juliana Palomino for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 2, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the un-
lawful disciplines and discharges of Tangni Fagoth,
Stephanie Garcia, Nadgie Santana, and Juliana Palomino,
including all references to any notes, memoranda, and
any other written documents prepared in response to and
in defense of the unemployment insurance claims filed
by them with the New York State Department of Labor,
and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that their
disciplines, discharges, and any of these other documents
will not be used against them in any way.
MEXICAN RADIO CORP.
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-168989 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.
Audrey Eveillard, Esq. and Joseph Luhrs, Esq., of New York,
New York, for the General Counsel.
Dana L. Salazar, Esq. and Kathleen McAchran, Esq., of East
Greenbush, New York, for the Respondent.
Rachel Nictora, Esq., of New York, New York, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
KENNETH W. CHU, Administrative Law Judge. This case
was tried in New York, New York, on September 13, 27, 28,
October 11, 12, November 16 and 17, 2016. Rachel Nicotra, an
attorney, filed the initial and amended charges.
Pursuant to a complaint issued by Region 2 of the National
Labor Relations Board (NLRB) on May 31, 2016, and amended
on September 13, 2016, it is alleged that on about October 5,
2015, the Respondent's employees Tangni Fagoth (Fagoth),
Stephanie Garcia (Garcia), and Nadgie Santana (Santana) con-
certedly complained to Respondent regarding the wages, hours,
and working conditions of Respondent's employees, by com-
plaining about, among other things, their work schedules, Re-
spondent's tip policies, and General Manager Theodora Alfre-
dou's treatment of employees. Further, on about October 29,
2015, the Respondent’s employees Juliana Palomino (Palomi-
no), Fagoth, Garcia, and Santana engaged in concerted activi-
ties with other employees for the purposes of mutual aid and
protection, by replying to a group email which complained
about, among other things, work schedules, Respondent's tip
policies, and General Manager Alfredou's treatment of employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ees.
The complaint alleges that on about October 30, 2015, the
Respondent prepared and/or issued reprimands to employees
Fagoth, Garcia, Palomino, and Santana and subsequently dis-
charged the four employees on the same date.1
The complaint alleges that the Respondent reprimanded and
discharged Fagoth, Garcia, and Santana because they concert-
edly complained about their terms and conditions of employ-
ment and to discourage employees from engaging in these or
other concerted activities.
The complaint further alleges that the Respondent repri-
manded and discharged Palomino, Fagoth, Garcia, and Santana
because they engaged in concerted activity with others for the
purpose of mutual aid and protection in replying to a group
email and to discourage employees from engaging in these or
other concerted activities.
The complaint alleges that by the conduct described, the Re-
spondent has been interfering with, restraining, 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 (GC Exh.
2).2
The Respondent timely filed an answer denying the material
allegations in the complaint (GC Exh. 1).
On the entire record, including my assessment of the wit-
nesses’ credibility3 and my observation of their demeanor at the
hearing and corroborating the same with the adduced evidence
of record, and after considering the briefs filed by the General
Counsel, the Charging Party and the Respondent, I make the
following4
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York State corporation with an of-
fice and place of business at 19 Cleveland Place, New York,
New York, operates a restaurant at 19 Cleveland Place serving
food and beverages to the public, where it derived gross reve-
nues valued in excess of $500,000. It purchased and received
at its New York, New York restaurant, goods and materials
valued in excess of $5000 directly from points outside the State
of New York. The Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background
The Respondent operates a food and beverage public restau-

1 All dates are in 2015 unless otherwise noted.
2 The exhibits for the General Counsel are identified as “GC Exh.”
and the Respondent’s exhibits are identified as “R. Exh.” Joint Exhib-
its by the parties are identified as “Jt. Exh.” The posthearing briefs are
identified as “GC Br.” for the General Counsel, “CP. Br.” for the
Charging Party and “R. Br.” for the Respondent. The hearing transcript
is referenced as “Tr.”
3 Witnesses testifying at the hearing included Tangni Fagoth, Steph-
anie Garcia, Juliana Palomino, Nadgie Santana, Mark Young, Lori
Selden, John Petrow, and Stephen Eckert.
4 I find that all parties submitted their posthearing briefs on a timely
basis.
rant. At the time of this complaint, the Respondent’s corporate
office was located in Schenectady, New York, and was operat-
ing restaurants in Schenectady, Hudson County and New York
City. The Respondent’s restaurant at issue in this complaint is
located at 19 Cleveland Place, New York, and has been opened
since 1996.
The Respondent is co-owned by Mark Young (Young) with
Lori Selden (Selden) since December 1, 1999, to the time of
this hearing. They are equally responsible for the operation and
decision-making of the business. The coowners have the au-
thority to hire, fire, suspend, promote, and to reassign, lay off,
and recall employees. The Respondent hired Steve Morgan
(Morgan) as the director of operations on March 16, 2015,
through January 1, 2016.5 Morgan also had the authority to
hire, fire, reassign, suspend, lay off, and recall employees. The
co-owners and Morgan work in the Schenectady office and
travel as necessary (Jt. Exh. 1).
At the time of the complaint, the Respondent’s New York
City restaurant (restaurant) employed approximately 23 work-
ers, with 12 working at the front of the house. The employees
working at the front of the restaurant were the hostess, bartend-
ers, shift supervisors, waiters/waitresses and the general man-
ager. The wait staff took customers’ orders, served the food,
collected the customers’ payments, and cleaned the tables. The
restaurant also employed “runners” who assisted the wait staff
in clearing the finished plates and cleaning the tables. The first
general manager for the restaurant was Michael Mogavero, who
left in 2011. John Petrow (Petrow) replaced Mogavero and
continued to serve as the manager until August 2015.6
The Respondent hired Theodora Alfredou (Alfredou) as the
general manager on August 5, 2015, through December 19,
2015, to replace Petrow. At all material times, Alfredou had
the authority to hire, fire, transfer, promote, suspend, discipline,
and lay off or recall employees (Jt. Exh. 1). Petrow was
reemployed to his former position as bartender at an hourly rate
of $11 dollars (Tr. 19–25).
Tangni Fagoth was employed as a waitress in the restaurant
in August 2010. Stephanie Garcia was employed as a waitress
in April 2010. Garcia was initially hired as a hostess and was
reassigned to a waitress in September 2011. Nadgie Santana
was initially hired as a hostess in January 2009 and was reas-
signed to a waitress in spring 2013. Juliana Palomino started
working at the restaurant in 2012 as a hostess and reassigned to
a waitress in September 2013.
Tangni Fagoth’s Terms and Conditions of Employment with
the Respondent
Tangni Fagoth (Fagoth) worked as a waitress since August
2010 and had also served as a shift supervisor towards the latter
part of 2014. Fagoth testified that her primary responsibility as
a shift supervisor was to record in the restaurant’s daily log of
activities during her watch so that the owners, Morgan and
Petrow would know what had occurred on her shift. Fagoth

5 It was not seriously disputed that Lori Selden is a supervisor of Re-
spondent within the meaning of Sec. 2(11) of the Act and/or an agent
within the meaning of Sec. 2(13) of the Act.
6 Chris Stein was hired for less than 1 month in 2014 and Petrow be-
came the manager again after Stein left.
MEXICAN RADIO CORP. 5
testified that she served 2 or 3 days per week as a shift supervi-
sor. She would serve as a supervisor for her entire shift, which
was usually from 4 p.m. until the restaurant closed. Fagoth was
also a waitress during her supervisory shifts.
Fagoth said that she had no additional responsibilities as a
supervisor other than to enter the daily activities in the log. In
contrast, Fagoth asserted that Petrow continued to exercise his
supervisory responsibilities after Alfredou was hired as the new
general manager in August and Petrow had returned to his bar-
tender position. Fagoth testified that Petrow continued to deal
with the vendors, paid the staff, disciplined and assigned the
workers and did the schedule and assignments of the workers in
2015 while Alfredou was the manager. Fagoth also stated that
Petrow was in charge of the restaurant when Alfredou was not
working on Sundays. Fagoth repined that she never had these
additional responsibilities while as a shift supervisor. Fagoth
also maintained that Petrow was assigned six or seven supervi-
sory shifts while her own shift was reduced to one in August.
Fagoth testified that she first noticed a reduction in her supervi-
sory shifts in the second week of August (Tr. 328).
Fagoth further testified to other changes when Alfredou was
hired. Fagoth said that Alfredou was rude, loud and cursed at
the wait staff in front of the customers and made discriminatory
remarks about her coworkers. Fagoth said that she discussed
the disparate and demeaning treatment of the wait staff by Al-
fredou with the other servers, particularly with Juliana Palomi-
no, Nadgie Santana, Noemi Rivera, and Angelica Robleto a day
prior to her complaint to Steve Morgan by email on August 9.7
(Tr. 306–326; 384–387)
Fagoth emailed Morgan at 6:50 p.m. on August 9 to com-
plain about Alfredou (GC Exh. 6b). The email stated
Hi Steve,
This is in regards to the New GM. I understand we have lots
of things to take of ASAP but she is going in all the wrong
ways approaching us. She is coming in a very aggressive
way. We have had the same staff for a while and trust me I
know we need to take care of things but there is no reason to
be aggressive or disrespectful about it. We have all being
loyal to Mexican Radio, when we didn’t have a manager,
when everything was breaking down, when no one was mak-
ing money. The least she can do is schedule a meeting and in-
troduce herself properly and be nice to the staff. If things
keep going this way soon everyone will be leave including
me. I will not work at a place where I'm being spoken down
to. Not after everything I've done.
Tangni
It seems that Fagoth then forwarded the same email 2
minutes later to Lori Selden and copied Mark Young (GC Exh.
6a). Upon further reflection, Fagoth emailed Selden at 11:34
p.m. on the same date and stated

Hi Lori, I hope you don't take the previous Email to offense.
I'm just not happy on the way she is approaching us and the
demeaning way she is speaking to us. I just wanted to reach

7 Noemi Rivera and Angelica Robleto were also waitresses but were
not identified as discriminatees in the complaint.
out to our human resources guy so he can look into it. Lori I
hope you know I care for the restaurant and I know we need
to move forward and for the best and I will keep doing a good
job like I have been.
Tangni
The record does not indicate if Morgan had responded to
Fagoth’s email, but Selden responded in the morning of August
10 and stated to Fagoth that “Not a problem Tangni. I will
speak with Steve today and thank you for letting me know”
(GC Exh. 6a).
After the August 9 email, Fagoth sent a second email to Sel-
den with a copy to Morgan on August 12 and stated that she
and other workers spoke to Alfredou on the same day and Al-
fredou had apologized for her “rude” behavior and represented
to the workers that “it will never happen again.” Morgan re-
sponded on August 13 that he was pleased that “you are all
making process towards coming together as true team in NYC.”
(GC Exh. 6c). Selden also responded on August 13 stating that
Alfredou is the new person and trying to resolve longstanding
issues at the restaurant. Selden expressed her appreciation that
Fagoth had reached out to her to let her know how Fagoth felt
(GC Exh. 6d; Tr. 402, 403).
This amicable working relationship did not last long. Fagoth
testified that her relationship with Alfredou deteriorated after
her August 9 email. Fagoth testified that she met with Alfredou
after sending the email and Alfredou did in fact apologized for
her rudeness. Fagoth maintained, however, that Alfredou be-
came rude again from that point until Fagoth was discharged
(Tr. 446, 447).
On August 14, Fagoth complained to Morgan that her super-
visory shifts were reduced by Alfredou from four to two shifts
and given to Petrow. Fagoth complained that “…it seems like
everyone’s schedule is revolving around JP (John Petrow) and I
don’t find that fair” (GC Exh. 6e). Fagoth testified that Alfre-
dou told her if she did not like the shift changes, then Fagoth
“could leave.”
Fagoth’s August 14 complaint to Morgan about her reduced
schedule shifts had a temporary positive effect. The record
shows that Fagoth’s shifts were increased from one or two
shifts to three or four supervisory shifts the week of August 17
through September 6 (Tr. 389–390; R. Exhs. 2a and 2b).
The August 25 Pre-Service Staff Meeting
Alfredou was hired on August 5. Fagoth testified that Alfre-
dou did not formally introduce herself to the staff until August
25. Fagoth said that some of the wait staff was sitting around a
table before the beginning of the evening shift. Fagoth identi-
fied herself, Annette Polanco, Angelica Robleto, and a couple
of the runners as being presented at the meeting. Fagoth was
not certain if Juliana Palomino and Nadgie Santana were pre-
sent. Fagoth said that the wait staff complained that all the
shifts were given to Petrow. Robleto complained that her tips
should not be shared with the runners or that the runners should
not be given an equal share of the tips as the waitresses. Fagoth
testified that Polanco complained that she was switched from a
bartender to a waitress. Fagoth further testified that Alfredou
told the staff that “if you don’t like it, you can go” and that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
changes were instructions from Young and Selden.
Fagoth maintained that Alfredou then criticized the staff. It
is alleged that Alfredou said that Nadgie Santana “looks and
sounds like a retard” and was wondering if Stephanie Garcia
was “dead yet” referring to her absence from work due to an
illness. Fagoth responded that it was not nice to judge Santana
by the way she looks and her remark about Garcia was rude and
mean. Fagoth testified that after the pre-service meeting, she
spoke to Palomino about her reduced number of shifts. Ac-
cording to Fagoth, Palomino responded that she was not happy
with her reduced work hours but she would keep quiet for fear
of losing her job. Fagoth also stated that she spoke to Garcia
over the phone that night regarding the pre-service meeting.
Fagoth stated that Garcia already heard about the derogatory
remark about Garcia’s demise Fagoth ended the conversation
with Garcia by stating that the staff was going to get together
and let the owners and Morgan know about Alfredou’s behav-
ior and remarks (Tr. 333–341).
John Petrow (Petrow) testified that he was present at the Au-
gust 25 meeting when Alfredou introduced herself to the wait
staff. He said that tip pooling has been in place since the
1990’s and the policy of sharing the tips had been determined
by the employees. Petrow insisted that everyone has to agree
on the tip pooling system. Petrow recalled a heated discussion
between Alfredou and Robleto over whether the runners should
be included with a full equal share of the tips. Petrow said that
an equal share of the tips for everyone except for supervisors is
the restaurant policy although there has always had heated dis-
cussion over tip pooling (Tr. 195–201; GC Exh. 10).
Stephanie Garcia’s Terms and Conditions of Employment with
the Respondent
Stephanie Garcia (Garcia) was employed as a waitress in
April 2010. Garcia was initially hired as a hostess and was
reassigned to a waitress in September 2011 at her request (Tr.
586, 587).
Garcia knew that Alfredou was hired as the general manager.
Garcia was hospitalized in August and was not released from
the hospital until August 25 and returned to work 2 weeks later.
Garcia testified that upon her return to work, she realized that
Petrow was now bartending but he had the same duties as in his
former position as the manager. Garcia observed Petrow
speaking with the vendors, taking restaurant receipts to the
bank, dealing with liquor companies, dealing with unsanitary
restaurant conditions, and handling situations in the kitchen.
Garcia said that she would go to Petrow because Alfredou did
not like to deal with the patrons (Tr. 587–591).
Garcia testified that on the eve of her release from the hospi-
tal on August 25, she spoke to Fagoth because she was aware
that there was a pre-service staff meeting on that date. Garcia
was not present at the staff meeting. Garcia testified that Fag-
oth stated to her that Alfredou wanted to fire Garcia because
she has not been at work. At this point, Garcia decided to email
Selden on August 28 (GC Exh. 7; Tr. 592). The following is an
excerpt of Garcia’s salient points to Selden
Hello
I am writing to you to let you know that I was informed by a
few of my coworkers that the GM wants to fire me. I have
been in the hospital for 8 days (sick for 3 weeks) and have
kept her informed as much as I could through text message
and she seemed fine and very understanding. Now I am hear-
ing that she is upset because I did not go to her personally to
let her know that I was sick…I don’t think it is professional of
her to go and tell people that I work with that she is going to
fire me before firing Nadgie (Santana) without speaking to me
or giving me a warning and telling them not to tell me about
it…Sorry to bother but I am upset that she is telling everyone
about firing me without speaking to me about it.
Selden replied to Garcia by email on August 28 and thanked
her for letting her know about the situation and that she was
sorry for Garcia’s illness. Selden informed Garcia that her
email was forwarded to Morgan and Young. Selden said that
Morgan would be at the NYC restaurant the following day and
that she will speak to Morgan before he leaves for New York
(GC Exh. 7; Tr. 607).
Garcia testified that she is not aware of whether Morgan ac-
tually spoke to Alfredou regarding her email. Garcia, however,
complained that her work schedule also changed under Alfre-
dou when she returned to work in early September. She testi-
fied that her schedule was reduced to 1 shift per week from her
previous schedule of 2 or 3 shifts per week. Garcia testified she
spoke to Nadgie Santana and Fagoth about her changed work
schedule. Garcia, like Fagoth, believed that their reduced work
hours were given to Petrow and the new hires (GC Exh. 33; Tr.
593, 594). Garcia admitted that her ability to work at Mexican
Radio was limited because Garcia was also working some-
where else during the month of August (Tr. 609).
Nadgie Santana’s Terms and Conditions of Employment with
the Respondent
Nadgie Santana (Santana) was initially hired as a hostess in
January 2009 and was reassigned to a waitress in spring 2013.
Santana did not work in July 2015 and returned to the restau-
rant in early August after her vacation. Santana testified that
Petrow was the general manager when she left in July and re-
turned to discover that Alfredou was the new manager. Santana
said that Alfredou introduced herself as the new manager by
text and immediately wanted to know Santana’s work availabil-
ity.
Santana complained that Alfredou reduced her work sched-
ule from three to one shift when she returned. Santana stated
that she returned to work on August 3 and was informed by
Alfredou that she wanted to fire her in order to reduce expens-
es. Alfredou told Santana that it was “not personal” when she
informed her that she might be discharged. Santana said that
Alfredou mentioned Garcia as someone that might also be fired
because of her illness. Santana testified that she left the meet-
ing in tears and was encouraged by Fagoth and Palomino to talk
with Alfredou again about her employment status. Santana said
that she went back downstairs to speak with Alfredou but there
were no change in Alfredou’s position (Tr. 518–524).
Santana said that she emailed Selden that same night to in-
form her as to the way she was being treated and Alfredou’s
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MEXICAN RADIO CORP. 7
threat to fire her.8 According to Santana, Selden replied that
Morgan will be at the restaurant the following day and she
could speak to him. Santana testified she spoke to Morgan the
following day and was informed that Alfredou could not fire
her. Santana also testified that she reduced her school hours in
order to take more work shifts. Santana subsequently made a
request to Selden on August 15 to work as a nonpaid assistant
manager to Alfredou under her school’s internship program.
Selden replied that it was a great idea and would work out the
details with Alfredou. For the moment, Santana was satisfied
because she was not terminated, her shift increased from one to
two, and she now had the opportunity to intern as an assistant
manager (Tr. 560–564; R. Exh. 3).
Santana testified that she also attended the August 25 pre-
service meeting and discussed the schedule changes and tip
pooling with Fagoth, Palomino and Alfredou. Santana stated
that she did not work that day, but arrived at the restaurant to
attend the meeting. Santana recalled that the meeting centered
over the tip pool and work schedule. She testified that Fagoth
was the one who complained about her reduced work shifts and
Angelica Robleto complained that it was not fair that the run-
ners would now receive an equal share of the tips. Santana said
that Alfredou was insistent that the announced reduced work
shifts and equal sharing of the tips will remain unchanged (Tr.
518–529).
Juliana Palomino’s Terms and Conditions of Employment with
the Respondent
Juliana Palomino (Palomino) worked as a waitress in Sep-
tember 2013 to the time of her discharge. Palomino testified
that she was aware that Alfredou was hired as the General
Manager in August but had observed Petrow continue to per-
form general manager duties, such as giving supply orders to
vendors, ordering alcohol, and setting up work schedules even
when Alfredou was present at work (Tr. 465–468).
Palomino was present at the pre-service meeting on August
25. She testified that the staff discussed tip pooling and sched-
uling at the meeting. Palomino complained that she lost a work
shift with the rescheduling. Palomino also complained to Fag-
oth, Rivera, Netty Polanco, and others about her reduced num-
ber of shifts. Palomino recalled that she, Fagoth, Rivera and
Robleto complained that it was unfair that Petrow and the run-
ners received an equal share of the tips and that the reduced
shifts were given to Petrow. Palomino maintained that Alfre-
dou told the wait staff at the meeting that “If you guys don’t
like how things working here, then you can go look for another
job, you can leave.” Palomino testified that she spoke to Garcia
over the telephone that night after the August 25 meeting and
told her that Garcia might lose her job because Alfredou did not
have a vacant position for Garcia and then spoke to Fagoth to
complain about her schedule change (Tr. 470–473).
Petrow denied receiving more supervisory shifts when he
became the bartender but admitted that every one of his shifts
was a supervisory shift because he could “spell management or
other supervisors.” He was aware that others were upset over

8 The emails between Santana and Selden were not introduced at the
hearing.
his additional supervisory shifts (Tr. 171–175). On this point,
Selden testified that Petrow was still the “go to person” after
hiring Alfredou because of his tenure at the restaurant. Selden
said that Petrow trained the new bartender and that it was al-
right that Petrow had other duties (Tr. 274–278). There is no
denying that Petrow still continued to have managerial authori-
ty in August 2015, regarding some managerial duties, including
granting sick leave and replacing the sick employee with some
other worker (Tr. 185–188; GC Exh. 14).
The Restaurant’s Unsanitary Working Conditions
In addition to the complaints over the reduced work shifts
and the equal sharing of tips with the runners by Fagoth, Santa-
na, Palomino and Garcia made to Selden, Morgan and Young,
the servers complained about the restaurant’s unsanitary condi-
tions.
Garcia testified that informed Petrow in early September of
unsanitary conditions regarding mold in the ventilation system
and dirty water dripping onto the tables. Garcia also reported
to Petrow of a mouse that ran across a customer’s table. Garcia
maintained that she informed Petrow because Alfredou refused
to take any action to the customer’s complaint about the mouse.
Garcia said that she also spoke to Fagoth about the mouse and
believed that Fagoth may have spoken to Alfredou, who even-
tually tried to appease the customer. Garcia also recalled a
second incident with a mouse that had died inside the storage
area of a banquette and was emitting a noxious odor. Garcia
said that she spoke to Petrow and he decided to close off a sec-
tion of the restaurant. Garcia also observed Petrow taking
money out of the cash register and gave the money to a runner
to buy some air fresheners (Tr. 594–597).
Fagoth confirmed that the mouse incident occurred in Sep-
tember and that she, Garcia and Palomino went to speak with
Petrow when Alfredou refused to take care of the situation with
the dead mouse. Fagoth also observed Petrow giving money to
another employee to buy air fresheners. Fagoth was also aware
of unsanitary conditions in the kitchen. Fagoth said that Rob-
leto and Palomino told her that the kitchen staff was not wear-
ing uniforms; that no gloves were provided to them when they
were preparing food; and that the stream tables were not at the
correct temperature to keep the prepared food sufficiently
warm.
Palomino said that she was aware of the dead mouse inside
the banquette and other unsanitary conditions. Palomino de-
scribed that the kitchen staff did not have uniforms; that kitchen
towels were being reused by the kitchen staff; and that there
were no plastic gloves provided in preparing the food. Palomi-
no did not speak to any management officials regarding the
unsanitary conditions but did maintain that she spoke to Alfre-
dou and Petrow about the dead mouse. Palomino said that
Alfredou refused to do anything about the dead mouse, but she
did observe Petrow give money to another employee to buy air
fresheners (Tr. 499–501).
Fagoth indicated that Palomino told her that they needed to
make Morgan aware of the unsanitary conditions. Fagoth
agreed to prepare a list of items that they could present to Mor-
gan. Fagoth said that she conferred with Palomino, Garcia,
Santana, Robleto and Annette Polanco in preparing her list of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
complaints. Fagoth recalled that the list included the unsanitary
working conditions, the equal sharing of the pooled tips with
the runners and Petrow, the derogatory remarks that Alfredou
made to Garcia and to Santana, their reduced work shifts,
mouse droppings and the unkempt bathrooms that could not be
used (Tr. 342–350).
Garcia testified that the list was put together over the tele-
phone the night before Morgan was supposed to be at the res-
taurant. Garcia recalled some of the listed items to include no
tissues in the bathroom, no gloves for the kitchen staff and mice
in the restaurant (Tr. 597, 598)
Santana was also aware of the unsanitary conditions in the
kitchen. Santana said that she stopped eating her meals from
the kitchen because the prepared food was not kept at the cor-
rect temperature. Santana said that she had spoken to Fagoth,
Palomino, Garcia, and Rivera about the unsanitary conditions
(Tr. 530, 531).
Fagoth said that Polanco overheard Petrow saying that Mor-
gan was going to be at the restaurant the following day after the
list was prepared. Fagoth could not recall the specific date in
September when they met with Morgan. Fagoth said that Po-
lanco signaled her when Morgan arrived at the restaurant in the
late afternoon and she, along with Polanco and Robleto went to
speak to Morgan. Fagoth said that Polanco was the spokesper-
son and mentioned everything that was on the list to Morgan.
According to Fagoth, Morgan physically took the list and said
he would look into the situation (Tr. 349–352).
The October 5 Meeting
The wait staff was informed that there would be Point of
Sales (POS) training with a new system for ordering food and
keeping track of food items being ordered at the restaurant.
The POS training was scheduled for October 5 with Young and
Morgan in attendance for the training.
Fagoth, Santana, Palomino, and Garcia believed that Selden,
Young, and Morgan took no action in their complaints about
Alfredou and they saw no improvements over the unsanitary
conditions in the restaurant. Fagoth testified that she spoke to
Palomino, Rivera, Santana, Robleto, Polanco, and Garcia the
night before October 5. She told them Morgan and Young will
be attending the training and that this would be an opportune
time to speak with Young and Morgan over their concerns be-
cause nothing seems to have been accomplished with their list
of complaints that was previously given to Morgan.
Fagoth testified that they agreed to meet at a coffee house
near the restaurant before the training to discuss what they were
going to say to Young and Morgan. Fagoth testified some of
the people that she spoke to the night before were able to attend
the meeting, including Robleto, Garcia, Santana, Polanco, and
Alex Armstrong. Fagoth said that a second list of complaint
items was put together at the meeting. Fagoth said that Polanco
did some research on the topic of equal share of pool tipping
with the runners, which they were going to present to Young.
Fagoth testified that she approached Young after the POS
training and asked to speak to him. Fagoth asked that Alfredou
also be present when they speak, but Young suggested that it
was not a good idea to have Alfredou present and that the group
should meet somewhere other than the restaurant. Fagoth
agreed and she, along with Garcia, Santana, Polanco, Robleto,
and Rivera met with Young and Morgan at a coffee shop (Tr.
352–356).
According to Fagoth, Polanco spoke about the tip pooling
and said that it was unfair to share 100 percent of the tips with
Petrow, who everyone believes is still a manager and with the
runners. Santana then spoke about how Alfredou was referring
to her as a mental retard and that Alfredou wanted to fire her.
Santana thought that this was discrimination. Fagoth com-
plained to Young about her reduced number of shifts. Fagoth
said that they did not want to cause any trouble and that they
did not want to leave Mexican Radio. Fagoth testified that
Young wanted people to be happy working at the restaurant.
Robleto’s suspension was mentioned during this meeting.
Young immediately ended Robleto’s suspension and agreed to
look into the other complaints9 (Tr. 356–358).
Santana was also at the meeting with Young and Morgan on
October 5. Santana informed them of the unsanitary condi-
tions, her adverse treatment by Alfredou, and her objections to
the equal sharing of the tips with Petrow and the runners. San-
tana also told Young that it was unfair being targeted by Alfre-
dou. Young promised to speak to Alfredou about her treatment
of Santana. Santana maintained that she saw no improvements
after this meeting (Tr. 531–535).
Garcia testified she met with Young and Morgan after the
POS training. Garcia recalled that the group discussed the un-
sanitary conditions and that it was unfair to share equal tips
with Petrow, who they believed to be a manager. She also
recalled Santana complained about being bullied and discrimi-
nated by Alfredou. It was Garcia’s belief that Young was
“brushing off” Alfredou’s treatment of Santana, but that he did
not wanted the staff to be unhappy and promised improve-
ments. Garcia repined that nothing changed after the meeting
(Tr. 598–601).
Young testified that the group met with him and Morgan af-
ter the POS training. He stated that Fagoth initially approached
him to meet with the group. Young indicated that he was not
aware of the purpose for the meeting but was always willing to
talk with his workers. Young testified that Fagoth, Polanco,
Robleto, Garcia, Santana, and Palomino were present at the
meeting. He said that each of the servers expressed their anger
towards Alfredou regarding her treatment of the waitresses,
especially with Santana. Young also recalled that Polanco
complained about the dirtiness of the bar area. He insisted that
no complaints were made about the equal sharing of the tips
with the runners and Petrow. He did recall that the group was
unhappy with their schedules. He did not recall the group had
complained about unsanitary conditions (Tr. 70–73; 623–630).
Complaints made to the New York City Health Department
With the belief that nothing changed after the October 5
meeting, several of the servers, namely Fagoth, Palomino, San-

9 Robleto did not testify at the hearing. Young testified that Robleto
was a bartender and suspended on October 2 because she had Santana
cover for her absence without informing the general manager. After
Robleto complained at the October 5 meeting, Young and Morgan
agreed that the suspension was excessive and reduced her suspension to
time served (R. Exhs. 1 and 4; see also testimony of Young at Tr. 111).
MEXICAN RADIO CORP. 9
tana, and Garcia, decided to elevate a resolution with the res-
taurant’s unsanitary conditions by contacting the New York
City Department of Health and Mental Hygiene (Health De-
partment). Each of the named servers discussed among them-
selves before they individually complained to the Health De-
partment.
Palomino spoke to Fagoth, Rivera, and Garcia before filing a
complaint with the Health Department. Palomino testified that
the second floor bathroom was still filthy and not operational,
that there continued to be mice infestation in the dining area,
mold in the ventilation system and in the soda machine nozzles,
and that the kitchen staff still did not have uniforms or gloves
(Tr. 480–482).
Fagoth spoke to Santana, Palomino, Garcia, and Rivera be-
fore she called the Health Department on October 14. Fagoth
said that the dead mouse was still inside the booth and the
stream table to keep the cooked food at the correct temperature
was still inoperative (Tr. 361, 362).
By letter dated October 15, the Health Department informed
the Respondent that a complaint had been filed regarding mold
in the bar area and in the basement and that the workers com-
plained of chest pain and headaches when in the basement. The
letter required the owners to correct the problems and a health
inspector may be assigned to investigate if further complaints
are received (GC Exh. 25a).10
It is not clear from the record whether the initial unsanitary
conditions noted in the Health Department letter were resolved
by the Respondent. Nevertheless, there were subsequent com-
plaints to the Health Department after the October 15 letter.
Garcia testified that she filed her own complaint with the
Health Department on October 21 after speaking to Fagoth.
Fagoth mentioned to Garcia that she had already called the
Health Department (Tr. 599–601).
There was a health inspection at the restaurant on October
21. The restaurant’s daily log is prepared by management or a
shift supervisor assigned during that day. In the comment log,
Petrow indicated that the inspection occurred after three com-
plaints were received that “appear to have been written by a
staff member (or one time staff member).” The inspector found
mouse dropping and threatened to close the restaurant, but
Petrow convinced the inspector to keep the restaurant open
after he indicated that the staff was aggressively attacking the
unsanitary conditions (GC Exh. 12).
Santana said that she also called the Health Department after
speaking to Fagoth, Garcia, Palomino and Rivera, among oth-
ers. Santana did not indicate when she made the call to the
Health Department. Santana was not aware when the health
inspection occurred but testified that Petrow told her that he
was upset because “we did bad (in the inspection)” and “I’m
going to find out who did this” (Tr. 534, 535).
Garcia testified that she was at work on October 21 during
the inspection, but was not certain when the inspection actually

10 The inoperative steaming table, mold and mice infestations were
problems recognized by Alfredou as early as October 2 when she com-
plained to Morgan, Selden, Young, and Petrow that everyone was get-
ting sick from a stomach virus after Morgan had inquired why restau-
rant sales were down during the week (GC Exh. 24).
occurred. She said that Petrow came over to her, Fagoth and
another worker while they were counting the tips at the end of
the day. Garcia was asked by Petrow if she knew what had
occurred and Garcia responded if he was referring to the in-
spection. Petrow answered in the affirmative and mentioned
the inspection regarding the mold infestation. According to
Garcia, Petrow believed that a former or current worker was
responsible for the complaint to the Health Department and said
that this was “harassment against the owners”11 (Tr. 601–603).
Fagoth testified that she was present the night of October 21,
but did not work during the day when the inspection occurred.
Fagoth testified that she received a text message on her cell
phone from Petrow. Fagoth did not recall when she received
the text from Petrow. Fagoth said his text read “The fucking
Health Department is here.” Fagoth responded by texting
“wow.” There were no further communications after the sec-
ond text message was sent (Tr. 361–364).
Fagoth believed that the conversation with Petrow over the
inspection occurred on October 23 and not on October 21 (as
testified by Garcia). Fagoth worked the evening shift on Octo-
ber 23 and was counting the tips with Garcia and another work-
er when approached by Petrow.
According to Fagoth, Petrow said that there was no longer a
rodent problem, but complained that the Health Department
was still investigating the mold infestation. Fagoth further
testified that Petrow stated (Tr. 361–366)
Whoever is calling the Health Department is harassing the
owners. I will find out. We will find out. We have says of
finding out who called the Health Department and they’re go-
ing to pay. We have ways of finding out.
Petrow testified that he was present on October 21 during the
health inspection of the restaurant. Petrow believed that the
complaints filed with DOH were based upon information that
only management or a former or current staff would be aware
of. Petrow said that he was aware of complaints over reused
towels and mouse droppings. He said that the restaurant was
cleaned for reinspection after initial inspection. He did not
believe that Fagoth had filed the complaint because she was
still working there. Nevertheless, he believed it was harass-
ment (Tr. 177–182; GC Exh. 13).
Petrow insisted that the restaurant always had mouse drop-
pings and was not alarmed that a mouse was in the restaurant.
Petrow did not believe that discipline was taken against any of
the servers for reporting the unsanitary conditions because it’s a
problem that needed to be fixed and would not be grounds for
discipline (Tr. 191–194).
Nevertheless, Alfredou was not happy with the health in-
spections and was relieved that the inspection did not uncover
the mold infestation. Selden was also unhappy about the com-
plaints and believed the complaints were filed by a disgruntled
employee and expressed her urgency to Alfredou, Morgan and
Young to find those responsible for the complaints and have

11 Petrow was referring to Robleto, who was terminated 3 days prior
to the Health Department’s complaint of October 15 (GC Exh. 3). In
an email dated October 23, Alfredou also believed the complaint could
have been filed by Robleto or a current employee (GC Exh. 25a).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
their attorney to file a “cease and desist” order against the com-
plainers (GC Exh. 25C).
The October 29 Email from Annette Polanco
Annette Polanco was previously employed as a bartend-
er/server with the Respondent’s New York City facility from
June 2015 until her resignation about October 29, 2015 (Tr. 42,
43).12 As noted above, Polanco had actively complained about
having to equally share the tips with the runners and Petrow.
Polanco also complained about Alfredou’s rude treatment of
the servers and her discriminatory remarks toward Santana and
Garcia. Upon her resignation, Polanco wrote an email to sever-
al workers including Garcia, Robleto, Rivera, Fagoth, Santana,
Palomino and others. Polanco also included Young, Morgan,
Selden, Alfredou and Petrow in the same email (GC Exh. 5A).
Her email was sent at 12:21 p.m. on October 29. The email
stated
Let me begin by saying this is something I never thought I
would he doing with an employer, pulling no call no show. It
truly does break my heart. Given my amazing work ethic, I
never thought would find myself in such position. Fortunately
for me, when I came to work at your establishment, I came af-
ter being told by a friend, that her very fun job was looking
for a bartender for a few nights a week, not because I needed
the job. I came to Mexican Radio to fill in a couple days in
my week and when interviewed I was asked by John if I even
wanted to work there, as I was used to working in places with
much more volume. I told him I didn't care, because he too
made it sound like such an amazing place to work. I ended up
loving it so much I made it my priority and went part time at
another place where I was at. For the first time in almost two
decades, I stayed at a job that paid me pennies compared to
what I was used to making, because it was such a pleasure to
be working there. Everyone was so close and quickly every-
one became like family. l came in there ready and wiling (sic)
to help the place in every way I could, even requesting social
media access to update more frequently than yearly, as you
guys were not posting anything at all. I completely took apart
that disgusting bar and made it shine, without anyone asking
me to. Every Sunday and Monday I would take it upon my-
self to give myself cleaning projects to keep it clean, even pol-
ishing your wine glasses, snifters, and martini glasses
WEEKLY, Again no one told me to do any of it. I genuinely
cared about the conditions of a bar I planned on helping bring
business to because I saw the potential it had. I had asked
Steve and John for their help several times with my ideas.
Fast forward a bit and you guys make the decision to bring in
an uncivil, uncouth, disrespectful, vulgar, manipulative tyrant,
who has absolutely no sense of respect for others and deserves
absolutely none back. Now as a business owner myself, I
have to believe that this has to be a business plan. A 6 month
cleanup of your NYC location, where you bring someone that
has no clue what they are doing with the FOH, or BOH for
that matter, to do all your dirty work before you shut down
your location, I mean why else would you be trying to "cut

12 Polanco did not testify at the hearing.
costs", yet here you are paying someone $1300 a week to do
spreadsheets and now she needs an assistant because she can't
work so many hours or close. Probably because she is still
hanging on to her evening waitressing job, that she admitted
to still having very recently. You've got to be kidding me.
You cut the hours of your loyal kitchen staff after not paying
them overtime for so many years and just paying them a little
hush money, from what I have been told. Yet now that you
are forced to pay overtime you refuse to even schedule them
their over time, ultimately screwing with their livelihood.
There is no way l can believe someone, with the business sav-
vy to have 3 locations open, can make such crass business de-
cisions for their “first born". It has to be a Donald Trump
business move to wipe the slate clean, in my opinion.
Theo came in with an agenda. To clean house. Sadly for her,
her aggression was met with resistance and a strong alliance
and will always continue to do so because she is completely
tactless. I've witnessed first and how she pretty much degrad-
ed the poor old man who had your business with the linen for
so many years. She spoke to him so ill, he had to ask to speak
to John and she very bluntly told him, "You no longer speak
John, you deal with me only. Work on bringing this price
down, because I have friends in the business that can do much
better." Obviously that couldn't have been the case because
we still have no napkins since the linen company dropped us
as they refuse to deal with her, as did our tortilla company. I
guess her friends in high places could do nothing for her. Ul-
timately it trickled down to how she speaks to your guests as
well, I mean the ones she actually goes to. She pretty much
refuses to do table visits because "those are not the people she
wants coming back anyway." When she does make it to a ta-
ble she is so unprofessionally rude, one table said they felt
they were on hidden camera. We brought up this particular
incident to not only Steve, but Mark as well. When we had
our first official new GM meeting, after Theo had already
come in and completely changed everyones (sic) schedules
and told us all directly she cannot do anything about it be-
cause John had requested to work those days. We brought up
the runner tip out situation. I was not aware that we had our
runner in the pool 100% until she scheduled me on my first
floor shift, that Tuesday. I've been in this business since I was
a teenager and never ever have I heard of that. I immediately
told John l was not Ok with that AT ALL. l don't disagree
that our runners work very hard, but it is NOT our place to
pay their salary! The only people benefiting front that situa-
tion is Mexican Radio. When this was brought up to her, as
the new GM, her VERY HOSTILE (she even got up from her
chair to make her tyrant point) solution to the situation was
that she would prefer to fire us all and keep the runners work-
ing, than to come to a solution for the tip out. Right there and
then, losing any ounce of respect I could've had for her. We
Naively (sic) told Steve all of our concerns from day one and
he did absolutely nothing. It is obvious, to me, that unfortu-
nately, your staff has been a bit ignorant about their rights, but
allow me to inform you, that I have been schooling them, as a
decent business owner that knows what I cannot and won't
ever do to my employees, and that you most definitely cannot
MEXICAN RADIO CORP. 11
do to yours. Now by law, it is very inappropriate for us to be
pooling tips with someone who has any say in what goes on
in that restaurant, ESPECIALLY scheduling. Whether John
wants to admit it or not he has a high management position at
Mexican Radio and would be in his best interest to remain
"neutral" to our faces when he is benefiting no matter what. I
wouldn't be surprised if he is just being paid to keep shut and
be an obedient minion, because I see no other reason for him
not to stand up for his staff, or rather "former staff" who he
KNOWS is absolutely amazing! I have been patient and al-
ways brought our concerns immediately to him us well, Ob-
viously, our concerns were not even acknowledged.
When the Tequila club and specials were first brought to our
location, I was on top of them. Handing in memberships for
almost every guest who came to the bar. Everyone else was
making sure to push them to the tables and the specials were
going like crazy, because everyone actually cared. Lori, you
have expressed to Theo how we arc 'Los ninos from hell" be-
cause we no longer sign up guests for tequila clubs or sell
specials, as we did with no problems before. Crazy that I have
to even be telling you this when you own 3 restaurants, but if
one is being treated condescendingly and like a second class
citizen, don't expect people to do more than what their job re-
quires. It is very unfortunate that you had people that cared
about your establishment and now because of you, Theo, and
even Steve (for looking the other way when we voiced our
concern from the very beginning), despise the place.
A little lesson from life, you reap what you sow.
It is obvious to me, Lori, that you conduct business in 3 very
fraudulent way. I recently saw an email from you, asking
Theo to forge a write up for Jeremy, to avoid paying unem-
ployment, and Theo agreeing. Is this how you run your busi-
nesses? Are you really that disgustingly greedy?? Just know
that even if deleted, things like that always have a way of
coming back up. Always. You have NO LOYALTY to even
your most loyal minion, John, and l feel sorry for him...stuck
having to deal with you. Trashing him in your emails with
your new GM. How fucking dare you, knowing your own un-
scrupulous business practices, allow her manipulating self to
treat your staff in the manner she does. John must know a
whooooole lot because the way you speak about him, is as if
he is a nuisance you don't around, but you can't do much
about it because he knows too much, again giving more fuel
to my thoughts on him being paid off to just hush. Steve was
made aware from the beginning the discrimination against
Nadgie, and even after bringing it up to Mark, nothing was
done. After sitting back and just observing these past few
weeks I have to say that I still think this is all a plan to shut
down right before the year ends to write it all off. I wouldn't
be surprised if you forge (sic) your sales with the IRS and the
new POS system is just to cover up the fraud. Just remember
though, as I stated previously, things like that always have a
funny way of surfacing.
Let it be known that I have personally witnessed Stephen be-
ing discriminated against because of his MS, by your new
GM. She has gone as far as asking, several, if not all of us, if
she should just fire him due to the liability he can potentially
be. I have no problem testifying on his behalf if it boils down
to it. This was also mentioned to Steve when it happened, in
the beginning. If you think only ex-employees are a problem
for you, you are in for a big surprise. Let me reiterate, I have
been schooling the staff on their rights and how they are being
completely violated, even more now with your new GM. Her
arrogant sloppiness will be much more costly than the change
you are trying to save by screwing over your employees and
the change you save lowering the quality of the food, which is
suffering. So many people have complained it's ridiculous,
especially about the vegan cheese changing. Which she actu-
ally wouldn't even admit she changed, as if we vegans don't
know the difference.
I am not only sending this email to the owners and manage-
ment, I am sending this to the entire staff so that they know,
they should stand up for their rights and that I, will help them
with the process. Please note staff, it is ILLEGAL for man-
agement to intimidate you or try to talk you out of contacting
the Department of Labor, if you really wanted to make this
place work, Lori, you would have hired someone to come in
to provide structure, which I admitted we needed and voiced
it to Steve when I first met him, but that treats your staff with
dignity and the gratefulness they deserve. Although after read-
ing your emails, I can see how despicable you are (2 seconds
after meeting Mark, I could see he was the ONLY good thing
in your life.) Instead of hiring someone to work with us„ you
hired someone who makes discriminating decisions because
she is so emotionally charged, she can't help it. Maybe if she
can stop hiring porters with her vagina, we can get one that is
worthwhile. Are you aware that your GM opened Angelica's
check and then poked fun at her finances with the kitchen? I
am sure you are aware by now, but do not care. I am sure you
understand the legality of that as well.
I am positive since I stopped cleaning the bar several weeks
ago, it is back to its disgusting state. Sink is back to being
black and the soda gun back to being moldy. I got tired of car-
ing for a place more than the owners did. I got tired of doing it
for people that didn't even appreciate it, I hope your staff does
what needs to be done and they stand up for what they de-
serve. I will diligently try to help them in any way I can. If
your plan is to shut down Mexican Radio NYC and turn your
entire staff against you, you are very much succeeding.
Netty
The workers named in paragraph 6(c) of this complaint all
responded in a positive manner to the email. Their responses to
the email were sent to Polanco and to everyone listed in Polan-
co’s email, including Young, Selden, Morgan and Petrow.
Fagoth responded to the email on October 29, approximately
1 hour later. Fagoth stated “Wow Anette, gracias. Thank you
for standing up for us. We will miss you” (GC Exh. 5B). Fag-
oth testified that Polanco’s email was an “accurate reflection”
of the situation at the restaurant (Tr. 366, 367).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Garcia responded approximately 1 hour later to the email and
stated “Just finish reading and I agree. Sad that things have to
be this way” (GC Exh. 5A at 1). Garcia testified that she
agreed with the contents of the email (Tr. 603, 604). Garcia
testified that she spoke to Fagoth and Santana over the contents
of the email before she sent out her response. Garcia said that
Fagoth agreed with the email and Garcia responded that she
will also respond in agreement with the email. Garcia said that
Santana also agreed to the email and Garcia said she would
reply in the affirmative to the email (Tr. 609, 610).
Santana responded at 2:21 p.m. on October 29 and stated
“I’m glad you said what you felt was right. I understand your
point of view 100%. Thanks you for being voice for us all”
(GC Exh. 5C). Santana testified that her response was a true
and accurate statement of the situation. She had discussed the
email with Fagoth before sending out her reply. According to
Santana, Fagoth said Santana should respond because of the
manner she was spoken to (by Alfredou). Santana believed that
all the servers felt the same way as to what she wrote in her
response (Tr. 535, 536).
Palomino responded at 1:31 p.m. on the day of the email and
stated “I agree a 100% as well” (GC Exh. 5D). Palomino testi-
fied that she agreed with the email and especially in regard to
the uncorrected black mold in the soda nozzle at the bar (Tr.
481, 482). Palomino stated that she never discussed the con-
tents of the email with anyone before or after the email was
sent out (Tr. 505–507).
The owners were taken by surprise at the content of the
email. Young and Selden were also surprised that the other
workers had responded in agreement with the email. Young
testified that the email was hurtful and mean spirited (Tr. 42–
48).
Young testified that he spoke to Morgan, Petrow, Selden and
Alfredou after receiving the email. Young discussed with them
regarding several possible courses of action, including the ter-
mination of employees. Young decided to visit the restaurant
with Selden and Morgan on October 30.
Petrow confirmed that he received a phone call from Young.
Young asked Petrow if he had read the email from Polanco and
that they (Young, Morgan and Selden) were coming into the
city the following day (Tr. 151–153).
Selden testified that she was “stunned” by the contents of
Polanco’s email. She did not understand what was happening
so she spoke to Morgan. Selden viewed the email as “deeply
insubordinate” and viewed the responses from the servers as
supportive of the email. Selden said that the contents of email
were “extremely insulting” and “deeply insubordinate.” Selden
viewed the responses from the servers as being “deeply con-
cerning” (Tr. 225–229). Selden confirmed that she visited the
New York restaurant on the following day with Young and
Morgan.
Young testified that Alfredou was present when they arrived
and also observed Santana working the floor. Young informed
Alfredou that they wanted to meet with the servers in the base-
ment office on an individual basis. Young wanted to know
what had happened to their working relationship, why and how
it got damaged and the reasons they were angry with manage-
ment. He also wanted to know if they were still supportive of
the email. Young said that Morgan, Selden and himself would
be interviewing the servers (Tr. 48–51).
Selden testified that they had planned to speak individually
with each of the wait staff. She confirmed that only Santana
was present when they arrived. Selden’s purpose for the inter-
views was to discuss with the servers as to what was going on
(Tr. 229–232).
The Discharge of Tangni Fagoth
Santana testified that she observed Morgan, Young and Sel-
den arriving at the restaurant in the afternoon. Her work shift
had ended at 4:30 p.m. and was instructed by Alfredou to go
downstairs and speak with the owners and Morgan. Santana
was too nervous to immediately go and informed Alfredou to
give her a moment before going downstairs (Tr. 536–539). At
this point in time, Fagoth arrived at the restaurant to begin her
evening shift.
Alfredou then told Fagoth to meet with the owners. Fagoth
believed that the interview with the servers was over the email
because of the closeness in time between the email and their
arrival. Fagoth believed that the owners intended to fire some
of the workers over the email and because she was outspoken
over the sharing of the tips. Fagoth insisted on having a wit-
ness and requested that Rivera accompany her to the interview.
Rivera had not yet arrived at the restaurant, but Alfredou agreed
that Rivera could be a witness. However, shortly thereafter,
Morgan went upstairs and instructed Fagoth to attend the inter-
view without Rivera (Tr. 369–372).
Fagoth testified that she was asked by Morgan regarding the
email and told her that the contents of the email were not true.
Fagoth disagreed with Morgan and Morgan responded by stat-
ing that if that’s her response with the email, then it was “in-
subordination” and “it’s unfortunate that it has to be this way
but you are being fired for insubordination.” At this point,
Young agreed with Morgan and Fagoth left the meeting and
went upstairs (Tr. 373, 374).
Young said that Fagoth was the first to be interviewed over
the contents of the email. Young was informed that Fagoth
wanted to meet collectively and was told no. Young said that
Morgan did most of the talking and had asked Fagoth about the
email. Fagoth responded that you (referring to Morgan) “did
absolutely nothing” and said Alfredou “didn’t do anything” to
help the wait staff. Young agreed that Fagoth was not contrite
and had stood by the statements in the email. Morgan told
Fagoth that if that is her position, “I don’t think you can work
here any longer” or words to that effect. Fagoth then left and
was subsequently fired. Young stated that Fagoth was termi-
nated for insubordination (Tr. 51–55).
Fagoth was the only one interviewed over the email on Oc-
tober 30. Fagoth testified that Palomino asked what had hap-
pened after she went upstairs to get her belongings and use the
restroom. Fagoth replied that she was fired. Rivera finally
arrived as Fagoth was walking out of the restaurant and she
asked Fagoth what had occurred. Fagoth again replied that she
was fired. Fagoth asked that Rivera go outside of the restaurant
with her so that they can say their farewells. Fagoth testified
that Young appeared at this point and demanded that Rivera
MEXICAN RADIO CORP. 13
give him the keys to the restaurant.13 Rivera gave her keys to
Young and was told by Young that “You girls are no longer
welcome” (Tr. 375–378).
Petrow testified that he was at work on October 30, 2015 at
around 4 pm. He stated that the management team was already
at the restaurant and observed Steve Eckerd working the bar
area. Petrow said he also observed Fagoth arrived to work
around 4:30 and observed her go downstairs to talk with man-
agement. Petrow said that while Fagoth was downstairs, he
observed Palomino arrived for work. The next thing Petrow
noticed was Fagoth coming up the stairs and talking with Pal-
omino. He did not know what they spoke about.
Petrow also saw Rivera arrived at work at this point and ob-
served Fagoth and Rivera leave the restaurant with Palomino
following them. He said that Santana remained in the restau-
rant because she was working the day shift that ends at 5 p.m.
(Tr. 153–155).
Selden recalled Morgan asking Fagoth why she supported
the email. Morgan did referenced insubordination in referring
to Fagoth’s agreement to the email. She also recalled Fagoth
replying that “You don’t do and haven’t done what we want.”
Selden said that Fagoth did not specifically reference specifi-
cally what it was that the servers wanted done. Selden then
said that Morgan replied we will have to let you go (Tr. 233–
237).
Young testified that he followed Fagoth upstairs. He was
under the impression that Fagoth had the keys to the restau-
rant.14 Young said it was reported to him that Fagoth told the
staff that she was being fired for agreeing to the email and he
wanted to assure the others that was not the case.15 Young saw
Fagoth leaving the restaurant and observed Rivera coming in at
the same time. Young believed they exchanged words but did
not hear what was said. He observed them walking away from
the restaurant. Young said he knew that Rivera also had a set
of keys and went outside to retrieve them from her. Young
asked for the keys and Rivera handed him the keys. Young
maintained that no other words were exchanged other than
asking Rivera for the keys. Young denied asking Rivera where
she was going or if she was coming back to work her shift and
said he never told Rivera that he wanted to speak with her.
Young testified that Rivera has not returned or worked at res-
taurant since that day (Tr. 55–58).
The Discharge of Juliana Palomino
Palomino testified that she arrived at work on October 30 at
5 p.m. Palomino had agreed to be Fagoth’s witness at the meet-
ing because Rivera was running late. Palomino observed Mor-

13 Rivera was a shift supervisor for that night and had a set of keys to
close the restaurant.
14 Fagoth testified that her set of keys were taken away from her the
night before by Alfredou.
15 Young learned that some employees, including Steve Eckert, Ber-
nardo Soso, thought they would also be fired. Young subsequently
explained to them they would not be fired for receiving the email. He
said that he was sorry about the incident and sorry about the email. He
assured them that he was not closing the restaurant and was not going
to fired Eckert (Tr. 60–64).
gan coming upstairs and instructed Fagoth to attend the inter-
view and refused her request for a witness. Palomino was also
told by Alfredou that the owners wanted to speak to her. Short-
ly thereafter, Palomino met Fagoth coming upstairs and in-
quired as to what had occurred. Fagoth told Palomino that she
was fired. Palomino testified that Morgan came upstairs short-
ly after she spoke to Fagoth about her termination. Palomino
stated that Morgan instructed her to go downstairs and she re-
fused. Morgan then asked Palomino to sign some paper and
she again refused. It is alleged that Morgan then stated to Pal-
omino “Okay. So you’re fired.”
Palomino confirmed that Young appeared and demanded the
keys from Rivera when she left and met Fagoth and Rivera
outside the restaurant. Palomino, Rivera and Fagoth waited
until Santana finished her shift and they all met up afterwards at
a drug store. Palomino said that no one from the Respondent
contacted her after October 30 (Tr. 482–485; 511–515).
Young testified that he saw Palomino walk outside following
Fagoth. Young said that her shift was not over, but she did not
return to work. Young did not inquire as to where Palomino
was going or if she was going to return to work. He denied
telling Palomino that she would not be fired (Tr. 59, 60).
Young said that Palomino was terminated for walking out
and not speaking to them about the email. Young insisted that
Palomino was not terminated for responding to the email, but
rather for not speaking to them on October 30 and for abandon-
ing her position when she walked away with Fagoth and Rivera
(Tr. 68–70).
The Discharge of Nadgie Santana
As already noted, Santana was too nervous to meet with the
owners on October 30. She related her nervousness to Alfredou
and Fagoth took her place to meet with the owners. After Fag-
oth met with the owners and told Santana that she was fired,
Alfredou told Santana that she was next to go downstairs. San-
tana was too nervous to go and informed Petrow of the same.
According to Santana, Petrow told her that she could go home
and take the weekend off because she was feeling ill.
Santana did not work the following day and texted Alfredou
that Petrow approved her weekend off. Santana said that she
never received a response from Alfredou. Santana also texted
Petrow, who confirmed by a reply text that it was alright for her
to take the day off (Tr. 535-546; GC Exhs. 35 and 36).
Santana subsequently received a phone call from Morgan,
which was recorded from her phone on October 31.16 The
voice message from Morgan stated that they had tried to speak
to her the day before and that she refused to talk with them and
left the restaurant. Morgan also noted that Santana did not
arrive at her scheduled shift on Saturday (October 31) and as-
sumed Santana did not want to work for the restaurant any
longer because she refused to speak to them and did not arrive
at work the following day. Morgan then stated that Santana

16 The audio CD of the recorded conversation was made part of the
record. I provided counsel for the Respondent an opportunity to review
the transcription of the recording with the audio CD. The counsel for
the Respondent agreed that the transcription in GC Exh. 37 is an accu-
rate reflection of the audio conversation between Santana and Morgan
except for some minor deviations (Tr. 544–547).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
“don’t have a job anymore so you don’t need to come back”
(GC Exh. 37).
Santana called Morgan back after hearing his voice message
on October 31. Her phone conversation was recorded by San-
tana. In summary, Santana protested that she abandoned her
job and reiterated that she informed Alfredou of her absence
and that Petrow had approved her day off. Santana also stated
to Morgan that she did not agree with Polanco’s email and only
responded that she understood what she was saying. Santana
also stated that she felt targeted and discriminated by Alfredou.
Morgan replied that it was wrong that Santana agreed with the
email, the contents were untrue and management will not toler-
ate people working in the restaurant that had agreed with the
email. Santana again insisted that she did not agree with the
email but nevertheless, Morgan felt that she was being insubor-
dinate and “refused to do things.” Santana stated that she never
refused but was fired anyway (GC Exh. 37C).
Petrow testified that Santana approached him and she seems
upset and nervous. Petrow related that Santana said she was
having an anxiety attack over having to talk with Morgan, but
did not recall if she mentioned Young and other managers.
Petrow said that Santana wanted to go home. Petrow agreed
and told her to go home (Tr. 155). It is undisputed that Santana
texted Petrow the following morning and asked to take the
weekend off. Petrow responded that it was alright for her to
take the weekend off (Tr. 160, 161).
Selden testified that the management team was unable to
speak to Santana after her shift. She said that Santana refused
to come downstairs to meet. Selden was told by Alfredou that
Santana had a panic attack and left after her shift was complet-
ed. Selden was aware that Santana was scheduled to work on
October 31 on the 5:30 p.m. shift. She was also aware after-
wards that Santana had texted Petrow about not coming in.
Selden insisted that Santana was not terminated for failing to
arrive at her shift, but for refusing to come downstairs to speak
and instead, she left the restaurant. However, Selden also ad-
mitted that Santana was discharged over insubordination in
agreeing with the email, walking off the job, which she consid-
ered as job abandonment (Tr. 237–244; GC Exhs. 18 and 19).
Young testified that Santana was terminated for a no call/no
show on October 31 and insubordination for refusing to speak
with them on October 30. However, Young subsequently indi-
cated that Santana was also terminated for insubordination for
responding to the email (Tr. 65–68).
The Discharge of Stephanie Garcia
Garcia testified that she was not at work on October 30. She
received a phone call from Fagoth and was informed that Fag-
oth was fired for agreeing to the contents of the email. Garcia
said that Fagoth believed she was fired for being insubordinate.
Garcia was scheduled to work the evening shift on October 31.
Garcia received a phone call from Santana before leaving for
work that day. Santana informed Garcia that she was fired and
played back the voice conversation she had with Morgan. San-
tana informed Garcia that Morgan was adamant that he did not
want anyone working at the restaurant anymore if they had
replied in support of the email. Garcia testified that she never
returned to work from that day based upon her belief that Mor-
gan in the voice recording was also referring to her because she
had agreed to the contents of the email. Garcia said that she
never heard from any management official after that day (Tr.
603–606).
Young testified that Garcia was terminated for a no show to
work on October 31 for the 5:30 p.m. shift. He was not aware
if anyone in management attempted to call her. Young insisted
that Garcia disappeared and was not terminated for insubordi-
nation. Young never saw her again. Young said that Garcia
was eventually terminated for no show after not hearing from
her. However, an affidavit provided by Young pursuant to a
charge filed with the EEOC stated that Garcia was terminated
for insubordination as well as not reporting for her shift (Tr.
65–68).
The Reprimands to Justify the Discharges
Each of the discharged workers was issued a reprimand me-
morializing the reasons for their termination.17 Selden was
unsure if Alfredou or Morgan had authored the first set of rep-
rimands. She was also not certain that she recognized the sig-
nature of Alfredou on the reprimands (Tr. 245–250).18 None of
the discharged workers had signed the reprimands.
The reprimand for Fagoth (GC Exh. 20B) stated that she was
discharged because
It has come to our knowledge through an email that was sent
out to all employees, management and ownership by a former
server, whom was terminated 3 days ago, that Tangni deliber-
ately provided access to this server who read unauthorized
documents and the General Manager’s email conversation
with ownership. The email included false accusations con-
cerning both management and ownership and used inappro-
priate language, to which Tangni replied stating that she
agreed with all the aforementioned. As a result of this insub-
ordination, Tangni was terminated the day after by the owners
of Mexican Radio.19
The reprimand was issued on October 30 and signed by Al-
fredou.20
The reprimand for Palomino was issued on October 30 by
Alfredou (GC Exh. 20C) and stated that she was discharged

17 The reprimands and discharges of Fagoth, Palomino, Garcia, and
Santana were alleged in the complaint as violations of the Act. The
reprimands and discharges of other workers (such as Rivera) were not
raised as allegations in the complaint and served only as background
information.
18 The counsel for the Respondent objected to the reprimands as
hearsay and not official business records of the Respondent. However,
the documents were received by subpoena issued by the General Coun-
sel and Selden recognized and took ownership of the documents. At
that point, counsel for the Respondent did not oppose the reprimands
for the record (Tr. 246, 247).
19 Fagoth was issued an earlier reprimand on October 10 when she
was serving as a shift supervisor (GC Exh. 40). That reprimand served
as background information. It was not raised as an allegation in the
complaint and need not be addressed in this decision.
20 Although Selden did not recognized the signature, a comparison of
Alfredou’s signatures with other documents signed by her undisputedly
show that Alfredou had signed the reprimands (compared GC Exh.
20A-C with her signatures in GC Exh. 21)
MEXICAN RADIO CORP. 15
because
Juliana demonstrated insubordination towards both manage-
ment and the ownership along with 4 other employees. Juli-
ana replied to an email sent by a colleague of hers who had
just resigned, stating that she agrees with all the issues. The
email included false accusations concerning both manage-
ment and ownership and used inappropriate language, to
which. On the light of this, management asked to talk to her
but she walked out of the restaurant on Friday October 30 and
she is considered to have resigned from the position of server
at Mexican radio.
The reprimand for Santana was issued on October 30 by Al-
fredou (GC Exh. 20A) and stated
Nadgie demonstrated insubordination towards both manage-
ment and the ownership along with 4 other employees.
Nadgie replied to an email sent by a colleague of hers who
had just resigned, stating that she agrees with all the issues.
The email included false accusations concerning both man-
agement and ownership and used inappropriate language, to
which. On the light of this, management asked to talk to her
but she walked out of the restaurant on Friday October 30 and
she is considered to have resigned from the position of server
at Mexican radio.
For whatever reason, the Respondent felt it was necessary to
draft a second set of reprimands for Fagoth, Santana and Palo-
mino. The reprimands were written by Morgan. Garcia was
not given a reprimand by Alfredou, but did receive one from
Morgan.The second set of reprimands were written by Morgan
and dated October 30. The reprimand for Garcia (GC
Exh.29B) stated that Garcia was discharged because
On 10/29/15 Netty Polanco sent out an e-mail to all of the up-
per management, ownership, store manager and selected em-
ployees of our NYC location. In this e-mail she used foul
language, insulted people and wrote about untruths in a very
demeaning and negative manner. She undermined the credi-
bility of the management and company in a disparaging way.
Stephanie replied to the e-mail in support of Netty. This is in-
subordination and will not be tolerated. On 10/31/15 Stepha-
nie did not show up for her scheduled shift nor did she call.
This is job abandonment.
Outcome:
Stephanie abandoned her job by not calling in nor showing up
for her scheduled shift.
For Fagoth, Morgan prepared the reprimand (GC Exh. 29A)
and stated
On 10/29/15 Netty Polanco sent out an e-mail to all of the up-
per management, ownership, store manager and selected em-
ployees of our NYC location. In this e-mail she used foul
language, insulted people and wrote about untruths in a very
demeaning and negative manner. She undermined the credi-
bility of the management and company in a disparaging way.
Tagni (sic) replied to the e-mail in support of Netty. This is
insubordination and will not be tolerated. On 10/30/15 Tagni
arrived for her scheduled shift and was asked to speak with
me directly. During this conversation she was terminated for
insubordination.
Outcome:
Tagni was terminated for insubordination.
For Palomino, the reprimand (GC Exh. 29C) stated
On 10/29/15 Netty Polanco sent out an e-mail to all of the up-
per management, ownership, store manager and selected em-
ployees of our NYC location. In this e-mail she used foul
language, insulted people and wrote about untruths in a very
demeaning and negative manner. She undermined the credi-
bility of the management and company in a disparaging way.
Juliana replied to the e-mail in support of Netty. This is in-
subordination and will not be tolerated. On 10/30/15 Juliana
arrived for her scheduled shift and was asked to speak with
me directly. She walked out and abandoned her shift instead
of talking to me.
Outcome:
Juliana abandoned her job with no notice.
Finally, for Santana, Morgan wrote in his reprimand (GC
Exh. 29D) that
On 10/29/15 Netty Polanco sent out an e-mail to all of the up-
per management, ownership, store manager and selected em-
ployees of our NYC location. In this e-mail she used foul
language, insulted people and wrote about untruths in a very
demeaning and negative manner. She undermined the credi-
bility of the management and company in a disparaging way.
Nadgie replied to the e-mail in support of Netty. This is in-
subordination and will not be tolerated. On 10/30/15 Nadgie
worked her scheduled shift and was asked to see me before
she left. She acknowledged this but left purposely without
talking to me. This is also insubordination. On her scheduled
shift on 10/31/2015 Nadgie e-mailed the General Manager 1
hour after he rescheduled start time to say she wasn’t coming
in. I called Nadgie and explained she was being terminated
for insubordination and failure to properly notify management
of an absence.
Outcome:
Nadgie was terminated for insubordination and failure to
properly notify management of her absence.
The Unemployment Insurance Claims of the
Discharged Workers
On about November 2, Fagoth, Palomino and Santana filed
claims for unemployment insurance benefits with the New
York State Department of Labor (DOL). On November 9,
Morgan responded to a questionnaire regarding Fagoth’s un-
employment claim (GC Exh. 31). Morgan stated in the ques-
tionnaire that Fagoth was
…in full support of an ex employee who emailed owners and
mgnt with foul language and false accusations…publicly sup-
ported the ex employee to the staff which is insubordination.
She was discharged for insubordination.
On December 21, Morgan followed up with the DOL on Fag-
oth’s claim for benefits (GC Exh. 36) and stated
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
We feel like Tangni in her position as a part time shift super-
visor needed to support the management and the owners pub-
licly and she could certainly have her own opinion privately.
By showing support publicly for the employee that wrote the
derogatory e-mail she did not support the management and
owners and by doing that exhibited insubordinate behavior
that required termination. Because of that we felt that Tangni
should not be eligible for unemployment benefits.
On November 9, Morgan responded to a DOL questionnaire
with regard to Santana’s claim for unemployment benefits (GC
Exh. 32). Morgan stated that Santana was discharged for
Insubordination towards management and ownership. Nadgie
sent an email supporting another employee who quit and in-
sulted company owners and management with foul language.
There seems not to be a questionnaire prepared by Morgan
on Palomino, but in preparation for a hearing on her unem-
ployment claims, Young wrote to the New York State DOL on
January 22, 2016 (GC Exh. 8) the reasons that Palomino should
be denied benefits
Juliana worked as a hostess and server at Mexican Radio
Corp in NYC.
On 10/29/15 a former employee, Annette Polanco, sent out a
disparaging email to the Managers, Owners and Employees
alleging all types of untruths about our operations in the city.
Juliana replied that she was in agreement with the email and
thanked the former employee for speaking out. We as the
Owners were very concerned about the email and some of the
falsehoods being expressed so that we, with our Director of
Ops, went down to the city the next day to speak to those in-
volved.
When the Owners and Director of Operations traveled down
to the City on 10/30/15 to inquire about these issues, we asked
all the employees involved to come down individually to the
office to speak with us. After we had finished our first con-
versation with Tangni Fagoth, she promptly went upstairs and
announced that everyone was being fired. This was a com-
plete fabrication on her part and an attempt to hurt the compa-
ny and turn staff against management. Juliana, after speaking
to Ms Fagoth, turned around and walked out without ever
speaking with the Owners or the Director of Operations.
We consider this the clearest example of job abandonment
and thus does not make her eligible for Unemployment Insur-
ance.
On January 21, 2016, Young prepared another letter to the
New York State DOL to oppose unemployment insurance ben-
efits for Santana. Young stated
On 10/29/30 a former employee sent an email out to Man-
agement, Owners and Employees stating various untruths and
malicious insubordinate statements about the restaurant, man-
agement and the owners. We as Management and Owners
were extremely distressed to see that Nadgie Santana had re-
sponded to this email expressing support for the accusations
made.
On 10/30/15„ the Owners and Director of Operations went
down to NYC to discuss the matter with all the individuals
involved. Nadgie was working the day shift when we arrived.
We asked her, after her shift, to please come down and talk to
us. She acknowledged that she understood what was being
asked of her but when her shift ended she simply walked out
the door and did not say a word to us.
I have reason to believe that she did speak to the one person
that early evening we did speak with and that was Tangni
Fagoth. We had spoken to Miss Fagoth first as she was the
first to arrive for the evening shift. Miss Fagoth was also the
biggest supporter of the insubordinate email and the 'group
leader' of all those who went on to agree with the insubordi-
nate email. When Miss Fagoth went upstairs she told the staff
that anyone who had received the email would be fired. That
was completely untrue and a complete fabrication on her part,
causing great stress amongst the staff.
Nadgie left soon after Miss Fagoth's announcement. The fol-
lowing day, 10/31/15, Nadgie informed the manager by text
after she was meant to arrive for her scheduled shift that she
was not coming back in to work. At my request the Director
of Operations called Nadgie and discussed what had hap-
pened, why she wasn't coming back into work and why she
did not come down into the office to meet with him and the
owners the night before as she had been asked to do. Her ex-
planation was that that she had been told by Miss Fagoth that
she was being terminated for insubordination and was too
nervous to come speak with us directly and therefore decided
not to come back in to work. The Director of Operations then
terminated Nadgie over the phone for a combination of insub-
ordination, intentionally walking out without speaking with
him as directed and then not showing up for her work shift the
following day.
The Respondent management officials also had opportunities
to directly communicate with the DOL employees handling the
unemployment insurance claims of Fagoth, Palomino and San-
tana.21 On December 7, Morgan spoke to DOL Agent Lorraine
Aimee Labarge about Palomino. In a summary prepared for the
claim filed by Palomino (GC Exh. 38B), Labarge took the fol-
lowing statement from Morgan
Per Steve Morgan, Director of Operations:
Ms. Palomino last worked on 10/30/15 as a Server at Mexican
Radio Corp. Another employee had written an email that was

21 Initially, the counsel for the General Counsel requested to take tes-
timony from the New York State DOL employees involved in handling
the unemployment insurance claims of Fagoth, Santana and Palomino
by video conference. The request was opposed by Respondent counsel.
I request that the General Counsel file a motion for video conferencing
witnesses and a response from the Respondent. I also suggested
whether there is an alternative to the need to take testimony of witness-
es by video conference. On October 24, 2016, I granted the General
Counsel’s motion to accept the authenticated business records consist-
ing of three pages of investigative documents prepared by the DOL
employees pursuant to the unemployment insurance claims in lieu of
taking their live testimony by video (see, Order of record (GC Exh. 38).
MEXICAN RADIO CORP. 17
disparaging to the company and she agreed with it. We called
her in to the office and she walked out before we could talk to
her. We were going to fire her but we did not tell her before
we called her in to the office that we were going to discharge
her because she agreed with the other employees email. We
felt that Ms. Palomino agreeing with the email was insubordi-
nation. I will email you documentation.
Similarly, Diana A. Beatty took down a statement from
Morgan pursuant to Beatty’s handling on Santana’s unemploy-
ment benefits claim (GC Exh. 38D). Beatty wrote on Decem-
ber 21 that Morgan told her the following
No she wasn't told if she didn't speak to me before leaving,
that she’d fired. John is one of the supervisors. He did not tell
me that he had allowed her to leave. I know she said she was-
n't feeling well but she had been waiting tables all day without
a problem. No one said shes having an anxiety attack. I think
she just started not feeling well after she found out that I
wanted to speak to her.
No, there were not any problems with Nadgie’s work perfor-
mance or any other issues prior to the co-worker's derogatory
email that was sent on 10/29/15, that would suggest her job
was in jeopardy of termination before 10/31/15.
Finally, with regard to Fagoth’s unemployment benefits
claim, Morgan responded to DOL Agent Lorraine J. Astembor-
ski on November 19 (GC Exh. 38C). Astemborski memorial-
ized the following statement taken from Morgan
There is no written policy regarding e-mails. She had never
been written up for anything. This is what happened. There
were a bunch of them who were working at the restaurant. It
was like it was their own little cartel. We had hired a new
manager who they didn't get along with. You probably saw
the e-mail it was foul and insulting and she responded in a fa-
vorable way to it. So that is why we discharged her. She was
discharged for agreeing to it.
DISCUSSION AND ANALYSIS
The complaint alleges that the Respondent interfered, re-
strained and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act in violation of Section
8(a)(1) of the Act. Section 8(a)(1) of the Act provides that it is
an unfair labor practice to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Section 7.
Discharging and disciplining employees because they en-
gaged in activity protected by Section 7 is a violation of Section
8(a)(1). Section 7 of the Act guarantees employees the right
“to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection . . . .” See, Brighton Retail, Inc., 354 NLRB 441, 447
(2009).
a. The Workers Engaged in Protected Concerted Activity
The Respondent contends that the workers did not engage in
concerted activity because the individual worker’s activity was
the expression of a personal gripe and not a protected concerted
activity. The Respondent argues that concerted activity “does
not include an individual’s action simply because the action
ought to be of group concern,” citing to Meyers I, 268 NLRB at
497(R. Br. at 12). I disagree.
The Board has long described concerted activity “in terms of
interaction among employees.” In Myers Industries (Myers I),
268 NLRB 493, 494 (1984), and in Myers Industries (Myers II)
281 NLRB 882 (1986), the Board held that “concerted activi-
ties” protected by Section 7 are those “engaged in with or on
the authority of other employees, and not solely by and on be-
half of the employee himself.” In Talsol Corp, 317 NLRB 290,
316–317 (1995), the Board held that an employee’s statements
at a safety meeting indicating concern with matter which af-
fected not only himself but other employees constituted pro-
tected concerted activity. The Act also protects concerted ac-
tivities for mutual aid or protection regardless of whether a
union is involved. 22 Alton H. Piester, 353 NLRB 369, 371
(2008).
Here, shortly after Alfredou was hired as the general manag-
er, several of the servers discussed and complained to Selden
about Alfredou’s rude behavior and demeanor towards them
and others. Fagoth credibly testified that she emailed Morgan
about Alfredou’s conduct as a general manager. Her email
specifically referenced other employees with similar complaints
against Alfredou. Fagoth stated, in part, “We have had the
same staff for a while and trust me I know we need to take care
of things but there is no reason to be aggressive or disrespectful
about it. The Ieast she (Alfredou) can do is schedule a meeting
and introduce herself properly and be nice to the staff. If things
keep going this way, soon everyone will be leave including me.
I will not work at a place where I'm being spoken down to”
(GC Exh. 6b).
Fagoth also complained to Selden by email and copied
Young on August 9 and stated, in part, “I'm just not happy on
the way she (Alfredou) is approaching us and the demeaning
way she is speaking to us. I just wanted to reach out to our
human resources guy (Morgan) so he can look into it” (GC
Exh. 6a).
Garcia also sent an email to Selden on August 28. Garcia
complained that it was related to her that Alfredou had threat-
ened to fire her despite the fact that she was on approved sick
leave and mentioned that Alfredou also wanted to fire Santana.
Garcia’s email stated, in part, “I am writing to you to let you
know that I was informed by a few of my coworkers that the
GM wants to fire me. I have been in the hospital for 8 days…
Now I am hearing that she is upset because I did not go to her
personally to let her know that I was sick…I don’t think it is
professional of her to go and tell people that I work with that
she is going to fire me before firing Nadgie (Santana) without
speaking to me or giving me a warning and telling them not to
tell me about it…” (GC Exh. 7). Santana also wrote a similar
email to Selden regarding the threat by Alfredou to fire her (GC
Exh. 17).
There was protected concerted activity during the August 25

22 To be sure, the complaint does not allege that the Respondent en-
gaged in antiunion hostility despite argued in the posthearing brief by
the counsel for the General Counsel (GC Br. at 68).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
pre-shift meeting between the servers and Alfredou. Fagoth,
Palomino and Santana raised the issues of giving an equal share
of the pooled tips to the runners, reduced work shifts that obvi-
ously affected their wages and Alfredou’s demeaning behavior
towards the staff. Palomino maintained that Alfredou told the
wait staff at the meeting that “If you guys don’t like how things
working here, then you can go look for another job, you can
leave.” I credit this testimony by Palomino, which was corrob-
orated by Fagoth (Tr. 337). Fagoth also credibly testified that
she spoke to Garcia, who had not attended the meeting, and
conveyed to her that Alfredou had threatened to fire Garcia.
Fagoth ended that phone conversation by saying to Garcia that
she was going to canvass the servers and draw up a list of com-
plaints to present to Morgan who was expected to arrive at the
restaurant. Fagoth's purpose in relaying the complaints to Gar-
cia was to encourage her to take corrective action to protect her
job. Thus, I find that Fagoth's conduct was clearly undertaken
for the mutual aid and protection of a fellow employee and
therefore constituted actual concerted activity. The Board has
repeatedly held that an employee’s warning to another employ-
ee that the latter’s job is at risk constitutes protected, concerted
activity. Food Services of America, Inc., 360 NLRB 1012,
1013–1015 (20014); Jhirmack Enterprises, 283 NLRB 609,
609 fn. 2 (1987).
In addition to meeting with Morgan, a group of the servers
also met with Young and Morgan on October 5. At that meet-
ing, another list of complaints was presented to Young for his
response. Young corroborated that he met with the group and
discussed their complaints about each of the servers expressing
their anger towards Alfredou regarding her treatment of the
waitresses, especially towards Santana. Young also recalled
that Polanco complained about the dirtiness of the bar area. He
also recalled that the group was unhappy with their schedules,
which affected their wages (Tr. 70–73; 623–630).
There was also concerted activity by the four discriminatees
over the unsanitary working conditions at the restaurant. Each
of the discriminatees discussed the problem among themselves
and followed up with complaints to the Health Department.
Fagoth testified that she spoke to Santana, Palomino, Garcia
and Rivera before she called the Health Department on October
14 because little action was done to correct the unsanitary con-
ditions. Garcia and Santana testified that they had also contact-
ed the Health Department.
Most significantly, there was concerted activity when Fag-
oth, Garcia, Santana and Palomino agreed to the Polanco email.
The email was a culmination of the complaints made by the
servers to Selden, Morgan and Young. Fagoth, Garcia and
Santana had individual conversations before sending out their
support for the email. Palomino did not discuss the email with
anyone prior to sending out her response, but she supported the
group action regarding the demeaning remarks by Alfredou and
the terms and conditions of employment mentioned in the
email. The Board has found concerted activity when employ-
ees discuss matters of common concerns, such as wages, shar-
ing tips, working conditions or work schedules, even when no
specific group action was discussed because “it is obvious that
discussions of this kind usually precede group action.” See St.
Margaret Mercy Healthcare Centers, 350 NLRB 203, 204, 212
(2007).
Here, the email is a concerted activity. Concerted activity
includes not only activity that is engaged in with or on the au-
thority of other employees, but also activity where individual
employees seek to initiate or to induce or to prepare for group
action, as well as individual employees bringing truly group
complaints to the attention of management. Fresh & Easy
Neighborhood Market, 361 NLRB No. 12, slip op. at 3 (2014).
This is true even if the employee is unsuccessful in persuading
other employees to join in group action. El Gran Combo, 284
NLRB 111, 115, 117 (1987). If the employee or employees
who are acting in concert are seeking to improve terms and
conditions of employment, their actions are for mutual aid and
protection of all employees within the meaning of Section 7.
Fresh & Easy Neighborhood Market, above, slip op. at 3, 5–6.
Actions taken by the servers were for mutual aid or protection
and include activity to “improve terms and conditions of em-
ployment or to otherwise to improve their lot as employees.”
Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).
b. 8(a)(1) Standard of Review
Once having determined that the employees engaged in pro-
tected, concerted activity, the analysis focuses on whether this
conduct was the cause of the discipline, and if so, whether they
in fact committed misconduct in the course of the protected
activity warranting the discipline. When an employer discharg-
es an employee ostensibly for conduct unrelated to protected
activity, the Board must determine whether an unlawful consid-
eration—the protected activity of the employee or other em-
ployees—entered into the decision making process and, if so,
whether it affected the outcome of that process. In such situa-
tions, the Board follows the mixed motive analysis articulated
in Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983); La-Z Boy Midwest, 340 NLRB 80, 80 (2003);
Shamrock Foods Co., 337 NLRB 915, 915 (2002).23
However, the Board has held that where the conduct for
which the employee is disciplined is intertwined with pro-
tected concerted activity, the Board’s traditional Wright Line

23 Under the mixed motive analysis articulated in Wright Line, 251
NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983), the Respondent has
the burden to show it would have taken the same action even absent the
employee’s protected activity. The employer does not meet its burden
merely by showing it had a legitimate reason for the action; it must
demonstrate that it would have taken the same action in the absence of
the protected conduct. In finding that the employer’s proffered reasons
are pretextual, the employer fails by definition to meet its burden of
showing it would have taken the same action for those reasons, absent
the protected activity. See Alternative Energy Applications, 361 NLRB
No. 139, at slip op. 3 (2014), citing authorities. It has long been recog-
nized that where an employer’s reasons are false, it can be inferred
“that the [real] motive is one that the employer desires to conceal—an
unlawful motive—at least where . . . the surrounding facts tend to rein-
force that inference. See Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466, 470 (9th Cir. 1966).
MEXICAN RADIO CORP. 19
analysis does not apply. Taylor Motors, Inc., 365 NLRB No.
21 fn. 1 (2017); Rogers Corp., 344 NLRB 504, 513 (2005),
citing Felix Industries, Inc., 331 NLRB 144, 146 (2000).
Having ruled out a Wright Line analysis, there are two types
of violations involving employees who were discharged for
conduct associated with their protected activity: 1) Cases in-
volving employees who were discharged because their em-
ployers honestly but mistakenly believed that they had engaged
in misconduct during the course of the protected activity and
(2) Cases involving employees who did, in fact, mingle some
alleged misconduct with the protected activity, but the miscon-
duct was not opprobrious enough to forfeit the protection of
the Act. The Board evaluates cases in the first category using
the NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964)
framework. See Amelio’s, 301 NLRB 182 (1991). For cases in
the second category, the analysis focuses on the factors the
Board set forth in Atlantic Steel, Co., 245 NLRB 814 (1979)
and its progeny. Here, the General Counsel’s theory of the case
falls within the second category (GC Br. at 63–65).
As with all alleged Section 8(a)(1) violations, the judge’s
task is to “determine how a reasonable employee would inter-
pret the action or statement of her employer . . . and such a
determination appropriately takes account of the surrounding
circumstances.” The Roomstore, 357 NLRB 1690, 1690, fn. 3
(2011) (taking account of the surrounding circumstances was
incorporated with the Board’s later decision in Pier Sixty, LLC,
362 NLRB No. 59 (2015) that looks into the totality of the cir-
cumstances).
c. Credibility
The credibility resolutions herein have been derived from a
review of the entire testimonial record and exhibits, with due
regard for the logic of probability, the demeanor of the witness-
es, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S.
404, 408 (1962). A credibility determination may rely on a
variety of factors, including the context of the witness’ testimo-
ny, the witness’ demeanor, and the weight of the respective
evidence, established or admitted facts, inherent probabilities,
and reasonable inferences that may be drawn from the record as
a whole. Double D Construction Group, Inc., 339 NLRB 303,
305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001). Cred-
ibility findings need not be all-or-nothing propositions—
indeed, nothing is more common in all kinds of judicial deci-
sions than to believe some, but not all, of a witness’ testimony.
Daikichi Sushi, above. Nevertheless, the credibility findings by
the judge must be clear and uncertain. Taylor Motors, Inc., 365
NLRB No. 21 (2017); Roto Rooter, 283 NLRB 771, 773
(1987).
Here, it was necessary to make several credibility determina-
tions. The counsel for the Respondent objected on numerous
occasions that testimony provided by the discriminatees as to
statements told to them by other individuals was hearsay testi-
mony. I ruled that the Board “does not invoke a technical rule
of exclusion but admits hearsay evidence and gives it such
weight as its inherent quality justifies” and their testimony was
allowed in. Midland Hilton & Towers, 324 NLRB 1141 fn. 1
(1997).
d. The Respondent Displayed Animosity to the
Workers’ Concerted Activity
I find that the Respondent has already demonstrated its ani-
mus towards the discriminatees for their protected concerted
activity. At the pre-service meeting on August 25, Santana
complained that Alfredou reduced her work shifts from three to
one when she returned. Santana stated that she returned to
work on August 3 and was informed by Alfredou that she
wanted to fire her in order to reduce expenses. Alfredou told
Santana that it was “not personal” when she informed her that
she might be discharged. Santana said that Alfredou mentioned
Garcia as someone that might also be fired because of her ill-
ness. Palomino maintained that Alfredou told the wait staff at
the meeting that “If you guys don’t like how things working
here, then you can go look for another job, you can leave.”
Fagoth corroborated the threat made by Alfredou and that Al-
fredou repeated the same threat to fire the waitresses that re-
fused to agree with her work shift schedule and the sharing of
the tips. Fagoth testified that Alfredou said to her and the wait
staff that “if you don’t like it, you can go” and that the changes
were instructions from Young and Selden.
Much of the hearsay objections were statements attributed to
Alfredou, Young, Selden, Morgan and Petrow as described by
the discriminatees. Inasmuch as Young, Selden and Petrow
testified and were subjected to examination about a prior state-
ment, such statements are not hearsay. To the extent that out-
of-court statements were attributed to Alfredou and Morgan,
their statements made to the discriminatees went unrebutted
because Alfredou and Morgan did not testify. Thus, the threat
made by Alfredou to the discriminatees at the August 25 pre-
service meeting was a party admission against interest and are
not hearsay. See Grey v. Heckler, 721 F.2d 41, 48 (2d Cir.
1983); Avon Roofing & Sheet Metal Co., 312 NLRB 499, 499
(1993). As such, I credit the testimony of Palomino and Fagoth
that Alfredou had in fact threatened to discharge those who did
not agree with her management policy and I further credit Fag-
oth’s testimony that Alfredou was instituting the changes in the
working conditions at the direction of the owners. Additional-
ly, I also find that the statements attributed to Alfredou were
fully corroborated and consistent with the testimony provided
by the discriminatees and therefore, have significant probative
value.
The remark made by Alfredou that “If you guys don’t like
how things working here, then you can go look for another job,
you can leave” is certainly threatening and clearly had the ten-
dency to restrain and coerce employees in the exercise of their
Section 7 rights. The Board has long held that such statements
by an employer implicitly threaten discharge because they con-
vey the impression that the employer considers complaining
about working conditions incompatible with continued em-
ployment. See Equipment Trucking Co., 336 NLRB 277
(2001) (the Board found that the statement by the employer’s
president that she would run the company “any way she want-
ed, and if he (the employee) didn’t like it, find another job” was
unlawful); Electrical South, Inc., 327 NLRB 270, 277
(1998)(statement by supervisor that “employees had better
watch their backs” unlawful as a threat of unspecified reprisal);
Bill Scott Oldsmobile, 282 NLRB 1073 (1987)(when employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
ees expressed concern about changes in operation, the supervi-
sor told the employees that “if they did not like it, they could
get out, leave their jobs”).24 The threat, moreover, made by
Alfredou, the general manager, is a factor that the Board has
long recognized as significant. “The threats were made by Re-
spondent’s general manager, a man who possessed the power
not only to threaten but also to turn threat into reality.” General
Stencils, Inc., 195 NLRB 1109, 1110 (1972).
Further, additional animus towards the workers in their exer-
cise of Section 7 rights were shown by the owners’ hostility
towards the complaints filed by the workers regarding the un-
sanitary conditions at the restaurant. Petrow testified that the
department of health complaints was part of doing business and
was not alarmed over mice in the restaurant. Petrow did not
believe that discipline was taken against any of the servers for
reporting the unsanitary conditions because it’s a problem that
needed to be fixed and would not be grounds for discipline.
However, when the health complaints were reported to the
owners, Selden’s response was that Petrow should find out who
made the complaints “ASAP” and suggested that their attorneys
file a “cease and desist” order against the complainers (GC
Exh. 25C). Petrow also confirmed that Selden told him to find
out who had made the complaints (Tr. 771, 772).
Fagoth and Garcia testified that they were interrogated by
Petrow and that it was stated to them that whoever made the
calls to DOH was harassing the owners. I credit the testimony
of Fagoth and Garcia that Petrow made such as a statement
since the statement is consistent with the demand from Selden
to Petrow to find out who had made the complaints and to file a
“cease and desist” order against the disgruntled complainers.
e. The Respondent Violated Section 8(a)(1) When the
Employees were Disciplined and Discharged
The Respondent argues that by adapting and agreeing to the
language in the email, the discriminatees were insubordinate in
undermining the owners’ authority and credibility and therefore
loss the protection of the Act. Upon my review, I find that the
sole reason for the discharge of Fagoth, Garcia, Santana and
Palomino was over the email and not because they had refused
to meet or had abandoned their job.
1. Fagoth, Santana, Garcia, and Palomino were Reprimanded
and Discharged for Agreeing to the Polanco Email
With Fagoth, Selden recalled Morgan asking Fagoth why she
supported the email. Morgan said it was insubordination in
referring to Fagoth’s agreement to the email. Selden then said
that Morgan replied we will have to let you (Fagoth) go. The
reprimand for Fagoth stated that she was discharged because
the email included false accusations about management and the
owners and had used inappropriate language which Fagoth did
not object when she agreed to the statements in the email. In
opposing Fagoth’s unemployment benefits claim, Morgan stat-
ed in the DOL questionnaire that Fagoth was in full support of
a former employee’s email that contained false accusations and
foul language about the owners and management, which Fagoth

24 The complaint did not allege that the threat made by Alfredou was
an independent violation of the Act but nevertheless serves as back-
ground information for the workers’ subsequent termination.
publicly supported and Morgan deemed this to be insubordina-
tion and grounds for discharge.
With Palomino, Young insisted that Palomino was not ter-
minated for responding to the email, but rather for not speaking
to them and for abandoning her position when she walked out
of the restaurant with Fagoth and Rivera. However, the repri-
mand for Palomino issued on October 30 by Alfredou stated
that she was discharged because she demonstrated insubordina-
tion by agreeing with all the issues in the email. Separately,
Palomino was also discharged for abandoning her position.
Young said that she was terminated for walking out and not
speaking to them about the email on October 30.
With Santana, she was discharged for insubordination in re-
fusing to speak with the management team. Selden said that
Santana was terminated for refusing to come downstairs to
speak and instead, she left the restaurant. Selden also admitted
that Santana was discharged over insubordination in agreeing
with the email, walking off the job, which she considered as job
abandonment. Young’s testimony for Santana’s discharge was
similar to Selden. He testified that Santana was terminated for
a no call/no show on October 31 and insubordination for refus-
ing to speak with them on October 30. Young subsequently
indicated that Santana was also terminated for insubordination
for responding to the email.
With Garcia, she was terminated for a no show to work on
October 31 for her 5:30 p.m. shift. Young insisted that Garcia
disappeared and was not terminated for insubordination.
Young said that Garcia was eventually terminated for no show
after not hearing from her. However, an affidavit provided by
Young pursuant to a charge filed with the EEOC stated that
Garcia was terminated for insubordination as well as not report-
ing for her shift. The reprimand for Garcia stated that she was
discharged because Garcia replied to the email in support of
Polanco. Morgan believed this to be insubordination. The
reprimand also noted that Garcia abandoned her job.
Accordingly, the Polanco email was clearly the reason that
Fagoth, Garcia, Santana and Palomino were reprimanded and
discharged. While the Respondent noted other reasons for the
discharge (further discussed below), the driving motivation for
each of the discharges was the workers’ agreement with the
email. With Fagoth, Morgan states that she was discharged
because of her “full support of the email.” With Palomino,
Alfredou stated that she was discharged for insubordination by
agreeing to the email. With Santana, Selden admitted that San-
tana was discharged over insubordination in agreeing with the
email. Finally, with Garcia, Morgan stated in his reprimand
that she was discharged because she replied to the email in
support of Polanco.
2. Agreeing to the Polanco Email was not
Opprobrious Conduct
Respondent argues that the email was “pretty nasty” and
“deeply insubordinate.” The Board has held that workers en-
gaged in “opprobrious conduct” can lose the protection of the
Act. Atlantic Steel, above; Caterpillar Logistics, Inc. v. NLRB,
835 F.3d. 536, 539 (6th Cir. 2016) (Where an employee engag-
es in indefensible for abusive misconduct during otherwise
protected activity, the employee forfeits the Act’s protection).
MEXICAN RADIO CORP. 21
When an employee engages in abusive misconduct during ac-
tivity that is otherwise protected, the employee forfeits the
Act’s protection. DaimlerChrysler Corp., 344 NLRB 1324,
1329 (2005).
I disagree. It is clear that each of the four discriminatees
were discharged for agreeing to the contents of the Polanco
email. The only question remaining is whether Fagoth, Santa-
na, Garcia and Palomino lost the protection of the Act by mere-
ly responding to Polanco’s email. In my opinion, Fagoth, San-
tana, Garcia and Palomino did not lose the Protection of the Act
by agreeing to the email.
Regardless of whether I apply the four factors under Atlantic
Steel25 or the totality of the circumstances under Pier Sixty,
upon my review, I find that the Respondent violated Section
8(a)(1) of the Act when it disciplined and discharged Fagoth,
Garcia, Santana and Palomino.
Here, the four discriminatees merely agreed to a nonpublic
email from a former employee. First, the four discharged em-
ployees did not add to the email with any negative comments of
their own; they did not describe their feelings or animosity
toward the manager and owners; and they never cursed or made
any derogatory comments toward the Respondent in their re-
sponses. Second, the email was part of an ongoing dialogue
between the workers and the managers/owners and was pro-
voked, in part, on the failure of the Respondent to correct the
problems. Third, the email contained little profanity and was
not insubordination, but a critique of the management style of
Alfredou and others. Fourth, the nonpublic email did not cause
a loss of reputation or business for the Respondent. Fifth, there
was no disruption of the business on the following day.
The discriminatees, by agreeing to the email did not engage
in misconduct that was so opprobrious as to forfeit the Act’s
protection. The Board has consistently held that discriminatees
do not forfeit the protection of the Act by merely participating
in an otherwise protected discussion in which other persons
made unprotected statements. In Triple Play Sports Bar &
Grille, 361 NLRB No. 31 (2014), the Board found that a work-
er engaged in protected concerted activity by liking a Facebook
post concerning an on-going work issue refused to attribute
unprotected and/or profane statements made by others to the
charging party.
The Respondent would like to distinguish Triple Play from
the situation here because Triple Play was a social media post-
ing (R. Br. at 14, 15) and that the four factors under Atlantic
Steel are more applicable than the Triple Play “totality of cir-
cumstances” standard of review. However, even applying the
four factors under Atlantic Steel, I find that the discharged
workers did not loose the protection of the Act by agreeing to
the contents of the email. Contrary to the position of the Re-
spondent, I find that the email was limited to certain employ-
ees, managers and owners of the restaurant, and therefore not
known to other employees and the public. Any alleged defama-

25 The four factors articulated in Atlantic Steel are: (1) the place of
the discussion between the employee and employer; (2) the subject
matter of the discussion; (3) the nature of the employees’ outburst; and
(4) whether the outburst was, in any way, provoked by an employer’s
unfair labor practice.
tory statements in the email were significantly limited to a non-
public email in contrast to a publicly posted comment on social
media for the entire world to view. As such, the dissemination
of the email was far less intrusion on the Respondent’s reputa-
tion and business than a social media posting under Triple Play.
Further, the email was not a discussion between the employer
and responding employees and did not occur in a public forum,
and therefore there was no disruption of the workplace or with
the patrons. The subject matter invoked a continuing dialogue
of concerted activity regarding the terms and conditions of
employment and is protected under the Act. Finally, the out-
burst, which was merely agreeing to the contents of the email,
was provoked by the employer’s unfair labor practice to dis-
charge the workers who had disagreed with Alfredou’s change
in the working conditions at the restaurant.
3. The Discharged Workers did not Abandoned their Jobs
or Refused to be Interviewed
The Respondent also argues, assuming the agreement to the
email was concerted protected activity; the workers went be-
yond with agreeing with a coworker’s complaint in an email.
The Respondent asserts that Fagoth, Garcia, Santana and Palo-
mino should not be fall under the curative cupola of protected
concerted activity because they refused to be interviewed by
management over the email and refused to work, either by
walking out of the restaurant or not showing up for their sched-
uled shift.26 The Respondent states that Palomino and Santana
flatly refused to speak to the owners and walked out of the
restaurant with Palomino leaving her shift uncovered and San-
tana abandoning her shift over the weekend. The Respondent
states that with Garcia, she simply never returned to work and
abandoned her job (R. Br. at 22–23).27
With Fagoth, it was clear that she was discharged for agree-
ing to the email. Fagoth was terminated for insubordination
after she reaffirmed her support with the contents of the email.
Fagoth met with the owners and therefore, she could not be
insubordinate for refusing to meet with them on October 30.
The only insubordination charge is her agreement with the
email. Before Fagoth was discharged, Selden recalled Morgan
asking Fagoth why she supported the email. Selden recalled
Fagoth replying that “You don’t do and haven’t done what we
want,” obviously referring to the issues in the email and then
Morgan discharged Fagoth. In my opinion, Fagoth was dis-
charged immediately after she asserted her Section 7 rights
when she conveyed her own and the concerns of other servers
that the Respondent officials failed to take any corrective action
over the terms and conditions of employment at the restaurant
that had been festering since the arrival of Alfredou.
With Garcia, I find that she did not abandon her job. Garcia
was not scheduled to work on October 30 and therefore, she
would not be aware that the owners wanted to meet with her
over the email. Garcia received a phone call from Fagoth and

26 In such a situation where an employer alleges that the discharged
employee engaged in misconduct unrelated to his protected activity,
such as poor work performance or tardiness, the Board has applied the
“mixed-motive” review as set forth in Wright Line, above.
27 I would note that the Respondent did not assert abandonment as an
affirmative defense in its answer to the complaint but I would neverthe-
less address this contention herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
was informed that Fagoth was fired for insubordination in
agreeing to the contents of the email. Garcia also received a
phone call from Santana before leaving for work on October
31. Santana informed Garcia that she was fired and played
back the voice conversation she had with Morgan. Santana
informed Garcia that Morgan was adamant that he did not want
anyone working at the restaurant if they had replied in support
of the email. Garcia testified that she never returned to work
from that day based upon her belief that Morgan in the voice
recording was also referring to her because she had agreed to
the contents of the email. Garcia said that she never heard from
any management official after that day.
Young testified that Garcia was terminated for a no show to
work on October 31, yet no one in management had contacted
Garcia to determine whether she was ill or unable to work.
Although an employer is not obligated to contact an employee
for failing to report to work, I find it significant that Young
went out of his way to assure other employees on October 30
that their jobs were not in jeopardy but did not give the same
assurances to Garcia (Tr. 60–64).
In addition, Young’s affidavit provided pursuant to an EEOC
charge stated that Garcia was terminated for insubordination as
well as not reporting for her shift. Garcia’s reprimand (GC
Exh. 29B) also stated that Garcia was discharged because Gar-
cia supported the email and Respondent deemed this to be “in-
subordination and will not be tolerated.” This was the real
reason for Garcia’s termination and her alleged abandonment of
her job was merely a smokescreen and therefore, a false reason.
I find it was reasonable for Garcia to believe that her agree-
ment to the email would result in her termination in light of the
fact that she heard the taped statement by Morgan that the Re-
spondent did not want anyone working in the restaurant who
had agreed to the email. Equally as significant, the reprimand
used to discharge Garcia had already been drafted on October
30 before Garcia even had an opportunity to speak and explain
her position over the email with the owners and Morgan.
With Santana, she received a phone call from Morgan and
the message was recorded on Santana’s phone on October 31.
The voice message from Morgan stated that they had tried to
speak to her the day before and that she refused to talk with
them and left the restaurant. Morgan also noted that Santana
did not arrive at her scheduled shift on Saturday (October 31)
and assumed Santana did not want to work for the restaurant
any longer because she refused to speak to them and did not
arrive at work the following day. Morgan then stated that San-
tana “don’t have a job anymore so you don’t need to come
back” (GC Exh. 37).
Santana called Morgan back after hearing his voice message
on October 31. Her phone conversation was recorded by San-
tana. Santana protested that she had abandoned her job and
reiterated that she informed Alfredou of her absence and that
Petrow had approved her day off because Alfredou never re-
sponded to her text. Morgan replied that it was wrong that
Santana agreed with the email, the contents were untrue and
management will not tolerate people working in the restaurant
that agreed with the email. Morgan felt that she was being
insubordinate and “refused to do things.” Santana stated that
she never refused any appropriate instructions but was fired
anyway (GC Exh. 37C).28
The fact that Santana did not abandon her job is evidenced in
Santana’s reprimand written by Morgan, which stated that “she
undermined the credibility of the management and company in
a disparaging way. Nadgie replied to the email in support of
Netty. This is insubordination and will not be tolerated.” 29
Inasmuch as Morgan did not testify, I find that Santana’s
statement that Morgan will discharge any workers in agreement
with the email as credible and fully corroborated with the tran-
script of the phone conversation with Santana. Again, like
Garcia, I find that the real reason for Santana’s termination was
her agreement with the email and not for abandoning her job
her refusing to speak with the owners on October 30.
Finally, with Palomino, it was already a foregone conclusion
that she was going to be discharged once she met with the own-
ers and her refusal to meet with the owners can only be seen as
a pretext for her termination. The owners were intent on dis-
charging Palomino before she had refused to meet with the
owners. In the summary prepared pursuant to the DOL unem-
ployment insurance claim filed by Palomino, Morgan respond-
ed that “Another employee had written an email that was dis-
paraging to the company and she (Palomino) agreed with it. We
called her in to the office and she walked out before we could
talk to her. We were going to fire her but we did not tell her
before we called her in to the office that we were going to dis-
charge (emphasis added) her because she agreed with the other
employees email. We felt that Ms. Palomino agreeing with the
email was insubordination.” Again, the alleged abandonment
of her position by Palomino as a reason for her discharge is a
pretext for her termination.30
In order to meet the Wright Line burden of persuasion, an
employer must establish that it has consistently and evenly
applied its disciplinary rules. DHL Express, Inc., 360 NLRB
730, 736 (2014). In the instant case, the Respondent has pro-
duced no evidence of other employees who have been dis-
charged for “failure to report to work or refusing to meet with
the owners.” Indeed, the evidence shows that an employee who
had not reported to work was suspended and not terminated and
other employees in similar circumstances were given less se-

28 I find it unnecessary to determine whether John Petrow was an
agent of the Respondent within the meaning of Section 2(13) of the Act
since his employment status did not play a role in the reprimands and
discharge of the four workers.
29 Selden also testified that Santana was not discharged for her fail-
ure to report to work on October 31.
30 It is also clear that the Respondent failed to establish that Garcia,
Palomino and Santana abandoned their positions since they had pro-
tested the allegation that they had abandoned their jobs. In order to
establish abandonment of employment ... an employer must present
‘unequivocal evidence of intent to permanently severe employment
relationship...” L.B.&B. Associates, Inc., 346 NLRB 1025, 1029 (2006);
Harowe Servo Controls, Inc., 250 NLRB 958, 964
(1980)(“…unequivocal evidence of intent to permanently severe em-
ployment relationship. …”). I note that the Board has held “[a]n em-
ployer cannot simply present a legitimate reason for its action but must
persuade by a preponderance of the evidence that the same action
would have taken place even in the absence of the protected activity.”
W. F.Bolin, 5 Co., 311 NLRB 1118, 1119 (1993), enfd. mem 99 F.3d
1139 (6th Cir. 1996).
MEXICAN RADIO CORP. 23
vere discipline for arriving late or not showing up for work (GC
Exh. 28). In light of that, the Respondent does not point to any
evidence that establishes objective standards regarding what
constitutes abandonment or refusal to speak to management
officials as being inappropriate and grounds for termination.
As such, I find that the Respondent has failed its burden of
persuasion to demonstrate the same action would have taken
place even in the absence of the protected conduct. Wright
Line, supra, at 1089.
Accordingly, I find that the Respondent unlawfully repri-
manded and discharged Tangni Fagoth, Stephanie Garcia,
Nadgie Santana, and Juliana Palomino in violation of Section
8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. At all material times, the Respondent, Mexican Radio
Corporation, 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 on
about October 30, 2015, by discriminatorily issuing written
reprimands to Tangni Fagoth, Stephanie Garcia, Nadgie Santa-
na and Juliana Palomino.
4. The Respondent violated Section 8(a)(1) of the Act by
discriminatorily terminating Tangni Fagoth and Juliana Palo-
mino on October 30; and Nadgie Santana and Stephanie Garcia
about October 31, 2015.
5. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, the Respondent having
discriminatorily issued terminations to Tangni Fagoth, Stepha-
nie Garcia, Nadgie Santana, and Juliana Palomino, I shall order
the Respondent to offer Fagoth, Garcia, Santana, and Palomino
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 employee emoluments,
rights or privileges previously enjoyed, and to make them
whole for any loss of earnings suffered as a result of the Re-
spondent’s unlawful actions against them. Backpay 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 Ken-
tucky River Medical Center, 356 NLRB 6 (2010).
In accordance with Don Chavas, LLC, d/b/a Tortillas Don
Chavas, 361 NLRB No. 10 (2014), my recommended order
requires Respondent to compensate Tangni Fagoth, Stephanie
Garcia, Nadgie Santana, and Juliana Palomino for the adverse
tax consequences, if any, of receiving a lump-sum backpay
award and to file with the Regional Director for Region 2 with-
in 21 days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay
award to the appropriate calendar years. AdvoServ for New
Jersey, 363 NLRB No. 143 (2016).
In addition to the remedies ordered, I shall recommend that
the Respondent compensate Tangni Fagoth, Stephanie Garcia,
Nadgie Santana and Juliana Palomino for their search-for-work
and interim employment expenses regardless of whether those
expenses exceed their interim earnings. King Soopers, Inc.,
364 NLRB No. 93 (2016). Search for work and interim em-
ployment expenses shall be calculated separately from taxable
net backpay, with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
It is further recommended that Respondent remove all refer-
ences to the reprimands dated October 30, 2015 issued to
Tangni Fagoth, Stephanie Garcia, Nadgie Santana, and Juliana
Palomino, including said "Reprimands" from their files and
notify them in writing that it has done so and that the repri-
mands will not be used against them in any way.
My recommended order requires the Respondent to expunge
from its files any and all references to the unlawful termination
of Tangni Fagoth, Stephanie Garcia, Nadgie Santana, and Juli-
ana Palomino, including the reprimands dated October 30,
2015, and any notes, documents or references regarding their
reprimands and termination that were prepared and/or provided
to the New York State Department of Labor in response to their
unemployment insurance claims and to notify them in writing
that this has been done and that the unlawful discharges and
reprimands will not be used against them in any way.
ORDER
On these findings of facts and conclusions of law and on the entire
record, I issue the following recommended31
The Respondent, Mexican Radio, Corp., its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging, disciplining, or otherwise discriminating
against employees because they engaged in protected concerted
activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Make Tangni Fagoth, Stephanie Garcia, Nadgie Santana,
and Juliana Palomino whole for any loss of earnings and other
benefits, including reimbursement for all search-for-work and
interim-work expenses, regardless of whether they received
interim earnings in excess of these expenses, suffered as a re-
sult of the unlawful reprimand and discharge, as set forth in the
remedy section of this decision.
(b) Compensate Tangni Fagoth, Stephanie Garcia, Nadgie
Santana, and Juliana Palomino for the adverse tax consequenc-
es, if any, of receiving a lump-sum backpay award, and to file
with the Regional Director for Region 2 within 21 days of the
date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the ap-
propriate calendar years.

31 If no exceptions are filed as provided by Sec. 102.46 and if no ex-
ceptions 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
(c) Immediately offer full reinstatement to Tangni Fagoth,
Stephanie Garcia, Nadgie Santana, and Juliana Palomino and if
the offers are accepted, reinstate Fagoth, Garcia, Santana and
Palomino to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(d) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge of
Tangni Fagoth, Stephanie Garcia, Nadgie Santana, and Juliana
Palomino, including their reprimands dated October 30, 2015,
and thereafter notify them in writing that this has been done and
that the discipline will not be used against them any way.
(e) Remove all references to any notes, memoranda, and any
written documents prepared in response and defense of the
unemployment insurance claims filed by Tangni Fagoth, Steph-
anie Garcia, Nadgie Santana, and Juliana Palomino with the
New York State Department of Labor and notify them in writ-
ing that it has done so and that the reprimands will not be used
against them in any way.
(f) 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.
(g) Preserve and, within 14 days of a request, or such addi-
tional 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 rec-
ords, 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.
Absent exceptions as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and due under the terms of this Order.
(h) Within 14 days after service by the Region, post at its ex-
isting property at the 19 Cleveland Place, New York, New
York facility, a copy of the attached notice marked “Appen-
dix.”32 Copies of the notice, on forms provided by the 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, de-
faced, or covered by any other material. In the event that, dur-
ing 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

32 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since October 29, 2015.
(i) Mail a copy of said notice to Tangni Fagoth, Stephanie
Garcia, Nadgie Santana, and Juliana Palomino at their last
known addresses.
(j) Within 21 days after service by the Region, file with the
Regional Director for Region 2, a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. April 26, 2017
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten to discipline or discharge or otherwise
discriminate against you because you engage in protected con-
certed activities or to discourage you from engaging in these or
other concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 Tangni Fagoth, Stephanie Garcia, Nadgie Santana, and
Juliana Palomino full reinstatement to their former jobs or, if
the jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Tangni Fagoth, Stephanie Garcia, Nadgie
Santana, and Juliana Palomino whole for any loss of earnings
and other benefits resulting from their discharge, less any net
interim earnings, plus interest, including any pay increases
made to similarly situated employees from the date of their
respective discharge dates to the present, and including reim-
bursement for all search-for-work and interim-work expenses,
regardless of whether they received interim earnings in excess
of these expenses, or at all, during any given quarter, or during
the overall backpay period.
WE WILL compensate Tangni Fagoth, Stephanie Garcia,
Nadgie Santana, and Juliana Palomino for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay award.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files all references to the unlawful discharge
MEXICAN RADIO CORP. 25
of Tangni Fagoth, Stephanie Garcia, Nadgie Santana, and Juli-
ana Palomino, including their respective reprimands.
WE WILL, within 3 days thereafter, notify Tangni Fagoth,
Stephanie Garcia, Nadgie Santana, and Juliana Palomino in
writing that this has been done and that their discharge and
reprimands will not be used against them in any way.
MEXICAN RADIO, CORP.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-168989 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.