New Silver Palace Restaurant

National Labor Relations Board - Board Decisions

Jun 18, 2001

334 N.L.R.B. 290 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 290
New Silver Palace Restaurant and Hon Kong Lok and
318 Restaurant Workers Union. Cases 2–CA–
30820, 2–CA–31742, and 2–CA–31774
June 18, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND TRUESDALE
On August 30, 1999, Administrative Law Judge How-
ard Edelman issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed exceptions. The Respondent filed an
answering brief to the General Counsel’s exceptions and
the General Counsel and the Charging Party filed an-
swering briefs to the Respondent’s exceptions.
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, and to adopt his recommended Order as modi-
fied and set forth in full below.2
Applying Wright Line,3 the judge concluded that the
Respondent violated Section 8(a)(3) and (1) by refusing
to hire the 23 discriminatees, finding that the Respon-
dent’s alleged reasons for not hiring them were pretex-
tual. The Respondent excepts, asserting, in part, that it
lawfully did not hire the discriminatees because they did
not meet its requirement that they speak English, failed
to submit applications, or had not fully complied with the
requirements for submitting applications, which included
completing the forms in English and listing prior em-
ployment.

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 preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent did not except to the findings that it violated Sec.
8(a)(1) through: Kwong Yau Cheng’s statements to Wing Lam that
they would hire any number of union supporters if there were no de-
mand for the Union and that the Respondent would hire old Silver
Palace employees if the Union did not seek to represent them, as found
by the judge in par. 37 of his decision; Yuk Yin Law’s statement to
Fung Yee Chen that it was “no use” to picket and if she continued to do
so, she would not be hired, as found in par. 45; and the counterdemon-
strators’ threat to kill the families of union leaders, physically harm the
union pickets, and engage in unspecified reprisals, and engaging in
photographic and video surveillance of the pickets, as found in par. 90.
2 The General Counsel has excepted to the judge’s omissions in his
recommended Order of standard compliance provisions concerning the
preservation of documents for examination and certification of compli-
ance and a provision ordering that the notice be posted in Chinese as
well as English. We find merit in these exceptions and shall modify the
Order and issue a new notice accordingly. We have also modified the
language of the Order to conform more closely to the violations found.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
At a postbankruptcy auction on July 24, 1997,4 the Re-
spondent, New Silver Palace Restaurant, purchased the
assets of the Silver Palace Restaurant, whose employees
had been represented by the Union. After the auction,
the Union sent the Respondent’s owners, Richard Chan
and Jonathan Chiu, letters on behalf of the former Silver
Palace Restaurant employees seeking employment with
the Respondent. In subsequent discussions, Chiu told
union advisor Wing Lam among other things, that he
would hire only a minority of the Union’s people, and
the Respondent’s supervisor, Kwong Yau Cheng, told
Lam that they would hire any number of former employ-
ees if there was no demand for the Union. We agree with
the judge that Chiu’s statement violated Section 8(a)(1).
The Respondent does not except to the judge’s finding
that Cheng’s statement was unlawful. As found by the
judge, the Respondent deliberately prevented the Union
from gaining a foothold in its restaurant partly by using
employment applications to avoid hiring union support-
ers and to give the impression that its refusals to hire
were lawful. As a result, the Respondent refused to hire
any of the discriminatees.5
We find that the evidence discussed above and set
forth by the judge6 amply supports the judge’s finding
ming the judge.
4 All dates hereafter are in 1997, unless otherwise noted.
5 Concerning the application process, the judge found in par. 75 of
his decision that the Respondent decided in advance to separate
applications into three stacks for: union supporters whose applications
were incomplete and therefore could be rejected; loyal applicants
whose applications could be corrected if incomplete to enable the Re-
spondent to hire them; and union applicants who complied with the
requirements and therefore could not be rejected outright. The
evidence, most notably the credited testimony of Howard Chiu, the son
of Jonathan Chiu, supports the judge’s description of the Respondent’s
separation of the applications into three stacks. However, there is no
evidence that the Respondent made the decision to separate the applica-
tions in advance of their submissions. Similarly, the judge mistakenly
found, also in par. 75 of his decision, that Richard Chan told Jonathan
and Howard Chiu, with regard to their review of one union supporter’s
application, that they could not “really reject this guy, so he’s on the
waiting list” because he had properly filled out his application. The
evidence reflects that Hau Moon Leung, who was in charge of the
Respondent’s hiring, made the statement. These minor factual errors
do not affect our decision affir
6 Several of the Respondent’s exceptions to the judge’s factual find-
ings in connection with his finding the unlawful refusals to hire have
some merit but no impact on our finding that the Respondent unlaw-
fully refused to hire the discriminatees. For example, with regard to the
Respondent’s use of English applications, the judge stated in par. 64
that none of the employees or supervisors spoke or understood English.
As asserted by the Respondent, one individual who was hired, Hon
Ping Kong, read part of his application in English at the hearing (but
testified in Chinese); one discriminatee who worked for the Respon-
334 NLRB No. 44
NEW SILVER PALACE RESTAURANT 291
that the Respondent violated Section 8(a)(3) and (1) by
refusing to hire the 23 discriminatees. In this regard,
consistent with our decision in FES, 331 NLRB 9, 10
(2000), we find that the Respondent was hiring at the
times it refused to hire the discriminatees,7 the discrimi-
natees had experience or training relevant to the an-
nounced or generally known requirements for the posi-
tions, and antiunion animus was a motivating factor in
the decision not to hire them. We also agree with the
judge that the Respondent has failed to rebut the General
Counsel’s strong showing that the reasons advanced for
not hiring the discriminatees were pretextual.8
The Respondent also excepts to the judge’s finding
that it violated Section 8(a)(1) through Supervisor Yuk
Yin Law’s statements to individuals conditioning their
consideration for employment on their payment of $5000
each for a share in the business. In late June, Yuk Yin
Law asked discriminatee Poon Git Woo whether there
had been a union meeting and what was discussed at the
meeting; Woo replied that they had discussed getting
jobs at the Respondent’s restaurant when it reorganized.
Law replied that there was “no use” in such a meeting
and that if they wanted jobs they would have to pay the
Respondent money. In July, Law renewed his demand
that Woo pay money to gain employment and stated that
the Respondent was afraid the workers would make trou-
ble for the Respondent.9

dent’s predecessor, Poon Git Woo, testified largely in English; and one
supervisor demonstrated some ability in English. The Respondent
refused to hire Poon Git Woo, however, although he apparently met the
requirement of being an English speaker. Moreover, there is no cred-
ited evidence that the Respondent made any effort to determine whether
the applicants spoke English.
Similarly, the Respondent asserts that the judge improperly found in
par. 67 that “virtually all” of the restaurant’s customers were Chinese.
The Respondent’s supervisor, Yuk Yin Law, testified that about 90
percent of them were Chinese.
The Respondent also correctly asserts that the judge erred in finding,
in pars. 25 and 74, that Richard Chan owned or controlled 67 percent of
the Respondent’s shares. There is inconsistent testimony on this matter.
Howard Chui testified that Chan held 50 percent of the total of 124
shares and Jonathan Chui held the other 50 percent, with Chan holding
proxies for the shares he sold. Wing Lam and Trinh Duong (who at-
tended meetings with the Respondent to assist Lam) testified that Jona-
than Chui told them that Chan owned a majority of the shares, with
Duong testifying that he was told that Chan owned 67 out of 124
shares, equaling (incorrectly) a 51-percent interest. Wing Lam testified
that Jonathan Chiu told him that Chan controlled over “sixty some”
percent of the shares and Jonathan Chiu only controlled 37 percent. In
any event, the possibility that Chan owed or controlled 50 percent of
the Respondent rather than 67 percent, as found by the judge, has no
impact on our finding of violations herein.
7 We find it unnecessary to pass on the Respondent’s exception to
the judge’s finding in par. 50 that the Respondent hired 35 individuals,
rather than 31, as found by the judge in par. 50. The Respondent relies
on a stipulation at the hearing that the Respondent had hired 31 appli-
cants by the date of the restaurant’s opening. In any event, we find that
the General Counsel has met his burden under FES of showing that the
number of open positions exceeded the number of discriminatees who
sought, or would have sought absent the Respondent’s unlawful con-
duct, work in the positions for which they had relevant training or ex-
perience. FES, supra at 10. We also note that most of the discrimina-
tees had worked for the Respondent’s predecessor for at least 2 years
whether or not the judge, in par. 48, correctly characterized them all as
“long-term” employees.
8 Chairman Hurtgen agrees as to the 8(a)(3) violations. However, he
does not agree that these 8(a)(3) violations operate as a forfeiture of a
successor employer’s right to set new initial terms and conditions of
employment. See his dissenting opinion in Pacific Custom Materials,
327 NLRB 75 (1998).
In early August, during the same meeting in which
Law directed discriminatee Tae Hung Wan to tell another
discriminatee, Fung Yee Chin, to cease her union support
and activities, Law told Wan that he would have to pay
$5000 to Respondent for a share in the business to be
hired. Thus, the Respondent linked its demand for pay-
ments in exchange for consideration for jobs to its simul-
taneous demand that potential employees cease union
activities. In this context, we agree with the judge that
the purpose of the demanded payment was to insure the
potential employees’ loyalty to the Respondent as op-
posed to the Union.10 Accordingly, we agree with the
judge that Law’s statements to Woo constitute unlawful
interrogation and coercion to cease his union activities
and support. We further agree that Law’s statements to
Wan constitute unlawful implied threats that employees
would not be hired unless they ceased their union activi-
ties and support of the Union. The same is true as to
Law’s statements to Woo, although the judge did not
expressly so characterize the violation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, New Silver Palace Restaurant, New York,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion support or activities.
9 As the Respondent notes in its exceptions, Poon Git Woo testified
that the first of these conversations with Law occurred in late June and
the second in July, rather than, as the judge found in par. 40 of his
decision, “on or about July 24” (the date of the auction) and a week or
two later, respectively.
10 Similarly, the Respondent’s vice president, Foon Szeetu, told Lam
in negotiations that the other investors were worried about the Union
and would feel “safer” if the employees invested their own money in
the Respondent. In that meeting, it was the Respondent’s representa-
tives who sought economic concessions from the Union, including the
sharing of tips with management, rather than the Union seeking conces-
sions from the Respondent, as stated by the judge in par. 21 of his
decision.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 292
(b) Informing employees that they would have to pay
money in order to become employed by the Respondent
because of their union membership or activities.
(c) Informing employees that they would have to
abandon their union memberships or activities in order to
be employed by the Respondent.
(d) Promising employees jobs if they cease their union
membership or activities.
(e) Informing employees that only a minority of the
Respondent’s work force would be union members.
(f) Informing employees that they would not be hired
by the Respondent or other employers because of their
union membership or activities.
(g) Threatening employees that it is futile for them to
support the Union or engage in union activities.
(h) Informing employees they would have been hired
by the Respondent if they were not members of the Un-
ion and/or do not engage in union activities.
(i) Engaging in photographic and video surveillance of
employees’ union activities.
(j) Making unspecified threats of reprisals against em-
ployees because of their union membership or activities.
(k) Impliedly threatening to kill union officials and
their families.
(l) Inflicting damage on the property of union pickets
because of their union membership or activities.
(m) Threatening to inflict bodily harm on employees
because of their union membership or activities.
(n) Inflicting bodily harm on employees because of
their union membership or activities.
(o) Refusing to recognize and bargain collectively with
318 Restaurant Workers Union as the exclusive collec-
tive-bargaining representative of employees in the fol-
lowing appropriate unit:

All full-time and regular part-time dining room em-
ployees including waiters, busboys, and dim sum girls,
employed by the Employer excluding all kitchen em-
ployees, office clerical employees, captains, managers,
guards and supervisors as defined in the National Labor
Relations Act.

(p) Unilaterally changing and implementing changes to
the terms and conditions of employment of its unit em-
ployees, without affording the Union an opportunity to
bargain with the Respondent with respect to such
changes.
(q) 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
to:

Yau Mei Chang Bi Zhen Li
Yu Hui Chang Guo Chang Liang
Fung Yee Chen Kin C. Ng
Yau May Cheng Yam Ping Ou
Wing Gay Cheung Siu Mui Chu Sit
Hsing Lieh Chou Sing Song Tse
Jian Wei Feng Tak Hung Wan
Bill S. Hui Pak Sum Wong
Chit Cheung Lam Siu Nin Wong
Kow Chau Lau Poon Git Woo
Yem Chou Lau Guo Quan Yan
Moon Tong Leung

jobs that they applied for, or would have applied for, had it
not been for the Respondent’s refusal to employ them, or if
such jobs no longer exist, to substantially equivalent posi-
tions of employment, without prejudice to their seniority or
any rights or privileges previously enjoyed.
(b) Within 14 days of this Order, offer Hon Kong Lok
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any rights or privileges to
which he would have enjoyed.
(c) Make whole the employees set forth in subpara-
graphs 2(a) and (b) of this Order in the manner set forth
in the remedy section of this decision, from the date of
the refusal to employ them, or in the case of Hon Kong
Lok, from the date of his discharge, until the date of a
valid offer of employment or reinstatement.
(d) Within 14 days of this Order, remove from its files
any reference to the unlawful refusal to employ the em-
ployees named above in subparagraph 2(a) and within 3
days thereafter, notify them in writing that this has been
done and that these personnel actions will not be used
against them in any way.
(e) Within 14 days of this Order, remove from its files
any reference to the unlawful discharge of Hon Kong
Lok, and within 3 days thereafter, notify him in writing
that this has been done and that the discharge will not be
used against him in any way.
(f) Within 14 days of this Order, recognize and, upon
request, bargain with the 318 Restaurant Workers Union
and put in writing and sign any agreement reached on
terms and conditions of employment for bargaining unit
employees.
(g) On request of the Union, rescind any unilateral
changes in the terms and conditions of employment ex-
isting prior to the opening of the New Silver Palace Res-
taurant, and retroactively restore preexisting terms and
conditions of employment, and make whole the bargain-

NEW SILVER PALACE RESTAURANT 293
ing unit employees by remitting all wages and benefits
that would have been paid absent such unilateral
changes, as set forth in the remedy section of this deci-
sion, from on or about August 26, 1997, until the Re-
spondent negotiates with the Union in good faith to im-
passe or agreement.
(h) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(i) Within 14 days after service by the Region, post at
its New York, New York facility copies of the attached
notice marked “Appendix.”11 Copies of the notice, in
English and Chinese, on forms provided by the Regional
Director for Region 2, after being signed by the Respon-
dent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees and members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union

te unit:
11 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT coercively interrogate any of you
about your union support or activities.
WE WILL NOT inform you that you have to pay
money in order to become employed by us because of
your union membership or activities.
WE WILL NOT inform you that you have to abandon
your membership in, and or activities on behalf of the
Union in order to be employed by us.
WE WILL NOT promise you employment with us
conditioned on your ceasing your union membership or
activities.
WE WILL NOT inform you that only a minority of our
work force would be union members.
WE WILL NOT inform you that you would not be
hired by us or other employers because of your union
membership or activities.
WE WILL NOT threaten you that it is futile to support
the Union or engage in union activities.
WE WILL NOT inform you that we would not have
hired you if you were union members or engaged in un-
ion activities.
WE WILL NOT engage in photographic and video
surveillance of your union activities.
WE WILL NOT make unspecified threats of reprisals
against you because of your union membership or activi-
ties.
WE WILL NOT impliedly threaten to kill union offi-
cials and their families.
WE WILL NOT inflict damage upon the property of
union pickets because of their union membership or ac-
tivities.
WE WILL NOT threaten to inflict bodily harm on you
because of your union membership or activities.
WE WILL NOT inflict bodily harm on you because of
your union membership or activities.
WE WILL NOT refuse to recognize and bargain
collectively with 318 Restaurant Workers Union as the
exclusive collective-bargaining representative of em-
ployees in the following appropria

All full-time and regular part-time dining room em-
ployees including waiters, busboys, and dim sum girls,
employed by us excluding all kitchen employees, office
clerical employees, captains, managers, guards and su-
pervisors as defined in the National Labor Relations
Act.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 294
WE WILL NOT unilaterally change and implement
changes to the terms and conditions of employment of
unit employees, without affording the Union an opportu-
nity to bargain with us with respect to such changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer to:

Yau Mei Chang Bi Zhen Li
Yu Hui Chang Guo Chang Liang
Fung Yee Chen Kin C. Ng
Yau May Cheng Yam Ping Ou
Wing Gay Cheung Siu Mui Chu Sit
Hsing Lieh Chou Sing Song Tse
Jian Wei Feng Tak Hung Wan
Bill S. Hui Pak Sum Wong
Chit Cheung Lam Siu Nin Wong
Kow Chau Lau Poon Git Woo
Yem Chou Lau Guo Quan Yan
Moon Tong Leung

jobs that they applied for, or would have applied for, had it
not been for the Respondent’s refusal to employ them, or if
such jobs no longer exist, to substantially equivalent posi-
tions of employment, without prejudice to their seniority or
any rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, offer Hon Kong Lok full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any rights or privileges to which they would have en-
joyed.
WE WILL make whole the employees set forth in sub-
paragraphs 2(a) and (b) of this Order, plus interest, from
the date of the refusal to employ them, or in the case of
Hon Kong Lok, from the date of his discharge, until the
date of a valid offer of employment or reinstatement.
WE WILL, within 14 days from the date of the Board’s
Order, remove from its files any reference to the unlaw-
ful refusal to employ the employees named above in
subparagraph 2(a) and notify them in writing that this has
been done and that these personnel actions will not be
used against them in any way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Hon Kong Lok, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
WE WILL on request, bargain with the 318 Restaurant
Workers Union and put in writing and sign any agree-
ment reached on terms and conditions of employment for
our employees in the bargaining unit.
WE WILL on request of the Union, rescind any unilat-
eral changes in the terms and conditions of employment
existing prior to the opening of the New Silver Palace
Restaurant, and retroactively restore preexisting terms
and conditions of employment, and make whole the bar-
gaining unit employees by remitting all wages and bene-
fits that would have been paid absent such unilateral
changes, plus interest, from on or about August 26, 1997,
until the Respondent negotiates with the Union in good
faith to impasse or agreement.

NEW SILVER PALACE RESTAURANT

Gregory R. Davis, Esq. and Matthew Bodie, Esq., for the Gen-
eral Counsel.
Clifford P. Chaiet, Esq. (Naness, Chaiet & Naness) and Hugh
H. Mo, Esq., for the Respondent.
Yvonne Brown, Esq. (Gladstein, Reif & Meginniss,), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me on various dates between August 5,
1998, through January 28, 1999, in New York, New York.
Pursuant to charges filed by 318 Restaurant Workers Union
(the Union), and by Hon Kong Lok a consolidated complaint
issued against the New Silver Palace Restaurant (Respondent)
on November 20, 1998, alleging violations by Section 8(a)(1),
(3), (4), and (5) of the Act.
On the entire record in this case, including my observation of
the demeanor of the witnesses and careful consideration of
briefs submitted by counsel for the General Counsel, counsel
for the Union, and Respondent, I make the following findings
of fact and conclusions of law.
Respondent is a New York corporation with an office and
place of business in New York, New York, where it is engaged
in the operation of a restaurant. Respondent annually derives
gross revenues in excess of $500,000. Respondent annually
purchases and receives at its New York facility goods and
products valued in excess of $5000, directly from points lo-
cated outside the State of New York.
It is admitted, and I find that Respondent is an employer, en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Respondent has denied the labor organization status as the
Union.
Credible and uncontradicted testimony by Kwong Hui, the
Union’s president, established that the Union is an organization
of restaurant worker employees, which has been in existence
since at least 1980. It holds regular meetings in which employ-
ees take part. The Union’s current secretary and treasurer are

NEW SILVER PALACE RESTAURANT 295
both former employees of the old Silver Palace, and alleged
discriminatees in this case.1
The alleged discriminatees also participated in the Union’s
picketing of Respondent described below. The Union’s current
president, Kwong Hui, testified that the purpose of the Union is
to represent its employee-members in collective bargaining
with employers such as the old Silver Palace and Respondent.
The Union had a series of collective-bargaining agreements
with the old Silver Palace Restaurant and attempted to negotiate
another agreement just prior to the restaurant’s closing. Prior to
Respondent’s opening, the Union sent a letter suggesting that
Respondent consider union members for employment. The
Union continues to represent its employee members, including
the alleged discriminatees, in its labor dispute with Respondent.
The Union filed the underlying charge in this case and has
maintained a picket line against Respondent.
Respondent denied the Union’s status as a labor organization
within the meaning of Section 2(5) of the Act. Respondent
contends the Union does not represent employees as defined in
Section 2(3) of the Act.
The facts establish that the Union represented the old Silver
Palace’s employees pursuant to a collective-bargaining agree-
ment. Moreover, they continue to represent approximately 29
of the old Silver Place employees who applied for employment
with Respondent. The Union demanded Respondent recognize
it as the collective-bargaining representative of its new employ-
ees and that it hire all the former old Silver Palace employees
who applied for jobs with Respondent.
A labor organization is defined in Section 2(5) of the Act as
an organization in that which “employees participate” and
which exists for the purpose in “whole or in part, of dealing
with employers concerning wages, hours, and other conditions
of employment.” It is clear in the instant case these conditions
are all met.
Respondent contends the Union is defunct because none of
its current members are employed. In Brislgeport Fittings, Inc.
v. NLRB, 877 F. 2d 180 (2d Cir. 1989), the court concluded a
union was not defunct because it had no constitution or bylaws
or even had lost all its members, unless it was unwilling to
represent employees. I find Respondent’s contention without
merit.
Respondent also contends the Union is not a labor organiza-
tion within Section 2(5) because it is not democratic, i.e., that it
lacks formal structure has no elected officers no constituting
bylaws and also does not meet regularly. I conclude the Un-
ion’s democratic processes are irrelevant to the union’s status
as a labor organization. Electromation, Inc., 309 NLRB 990,
994 (1992), enfd. 35 F.3d 1148 (7th Cir. 1994); Alto Plastics
Mfg. Corp., 136 NLRB 850, 853 (1962).
Respondent also contends that the Union existed as a “crimi-
nal enterprise,” presumably on Respondent’s counsel attempt to
prove that Wing Lam, a union officer, had encouraged the em-
ployees of the old Silver Palace to file amended tax returns
while working at the old Silver Palace. However, no witnesses
examined by Respondent gave testimony in support of such
contention. However, even if such contention were true, it
would not offset the union status as a labor organization. Alto
Plastics, supra.

1 The old Silver Palace was a restaurant whose majority shares were
owned or controlled by one, Richard Chan. As set forth in more detail
below, the old Silver Palace went into Chapter 7 bankruptcy, and the
assets were purchased by Richard Chan and others. The Union had
represented the waiters, bus boys, and dim sum girls employed by the
old Silver Palace.
Accordingly, I conclude the Union is a labor organization
within the meaning of Section 2(5) of the Act.
The Union represented the dining room employees at the
Silver Palace Restaurant from 1980 until on or about May 29,
1997, the date the restaurant was closed by order of the Bank-
ruptcy Court. At all material times, Kwong Hui was president
of the Union and cofounder, Wing Lam, acted in an advisory
capacity to the Union.
In Ngan Gung Restaurant, Inc., d/b/a Silver Palace Restau-
rant, Case 2–CA–26450, et al. (1996) (not reported in Board
volumes), summarily affd. (April 1996), Administrative Law
Judge Steven Fish found, inter alia, that the employer unlaw-
fully unilaterally reduced the wages, hours, and other benefits
to its employees, unlawfully demanded that manager share in
tips, locked out employees, and threatened it would discharge
employees, blacklist employees, close the facility, and/or file
for bankruptcy. In his decision, Judge Fish noted that Richard
Chan was the “Executive Director and member of the Board of
Directors . . . and” “in effect its chief operating official who
makes most of the important managerial decisions in the opera-
tion of the restaurant.” ALJ p. 2, Ins. 27–33.
In January 1995, the restaurant filed for Chapter 11 bank-
ruptcy protection and on December 8, 1995, the Bankruptcy
Court appointed a trustee.
Subsequently, during the period from February through May
1997, the Union attended several meetings with the bankruptcy
trustee, Henry Foong, the general manager appointed by Foong,
Herbert Liu, and several potential investors, including Foon
Szeetu, vice president of Respondent, Kok Hong Huie, head
waiter of Respondent, and notably Richard Chan, the majority
shareholder.
In separate negotiations, Union President Kwong Hui and
union advisor, Wing Lam, asked for certain economic conces-
sions from Richard Chan and Foon Szeetu, including the shar-
ing of tips with management. Lam recalled that Szeetu stated
that they wanted the employees to invest in the “New Silver
Palace Group” because the other investors were worried about
the Union and they would feel “safer” if the employees in-
vested their own money.
The Union did not agree to the concessions demanded by the
trustee and the investors and no successor collective-bargaining
agreement was reached.
On May 29, pursuant to Chapter 7 of the Bankruptcy Act, the
old Silver Palace was closed by order of the Bankruptcy Court.
Thereafter, an auction of the assets was scheduled for July 24,
1997.
On July 24, pursuant to an agreement with Richard Chan,
Jonathan Chiu purchased the assets of the Silver Palace Restau-
rant at auction.
Richard Chan, the majority shareholder of the old Silver Pal-
ace owned or controlled 67 percent of the shares in Respon-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 296
dent’s corporation. Jonathan Chiu owned or controlled about
33 percent of these shares.
On the day after the auction, Union President Kwong Hui
sent Jonathan Chiu two letters. The first letter stated, in part:

I am writing on behalf of the following former Silver Palace
dining room employees who want to apply for employment at
your restaurant at 46-50 Bowery. These workers are profes-
sional and experienced. Please call me at the above number
to arrange interviews with these applicants.

The letter listed the names of 7 dim sum cart pushers, 3 bus-
boys, and 19 waiters/waitresses.
On July 30, a meeting between Respondent and the Union
was held at the Saigon Bar and Restaurant in Chinatown. Pre-
sent on behalf of the Respondent were Jonathan Chiu, Howard
Chiu, Plant Managers Foon Szeetu, and Jonathan Chiu’s
brother-in-law, Kwon Yau Cheng, an admitted supervisor
within the meaning of 2(11) of the Act. Wing Lam was present
on behalf of the Union. Employees and union members Fung
Yee Chen, Yu Hui Chang, Guo Chang Liang, and Yem Chau
Lau were also present.
Wing Lam opened the meeting by stating that Union Presi-
dent Kwong Hui had asked him to appear on behalf of the Un-
ion and the employees to find out whether the employees could
be hired by Respondent. After Jonathan Chiu acknowledged
receipt of the letter containing the Union’s list of prospective
employees Lam stated that such employees all formerly em-
ployed by the old Silver Palace were very experienced and
knowledgeable about the restaurant and its customers and asked
that Respondent hire all of them.
Jonathan Chiu replied that Respondent was a new entity, an
“equal opportunity” employer and that their hiring decisions
would be based on applications. Chiu stated that he wanted to
hire people who spoke English and asked that Lam refer such
people to him. When Lam contested Respondent’s need for
English-speaking employees, Chiu explained that he wanted to
attract more “Western” customers and that he would get a third
party to test the applicants.
Lam stated that he heard Respondent had already hired eve-
ryone and that Han Fu Cheng, a former manager of the old
Silver Palace Restaurant, had solicited $5000 in exchange for
such jobs.
Jonathan Chiu admitted that Han Fu Cheng was a share-
holder and that he was in charge of the dining room but denied
Respondent had hired anyone else. Cheng is an admitted su-
pervisor within the meaning of Section 2(11) of the Act. Chiu
said he would hire a “minority” of the Union’s people and sug-
gested 40 percent. Lam did not agree. Chiu upped his offer to
50 percent of the persons on the Union’s list, 10 waiters and 5
dim sum women. Chiu further stated that Lam could choose
such employees himself, that they did not need to fill out “any
form” and he would hire the other employees “from the out-
side.” Lam refused Chiu’s proposal and urged him to consider
hiring more of the persons on the Union’s list. Lam suggested
that they meet again.
During the discussion between Lam and Chiu, Kwong Yau
Cheng stated: “That’s all you ask for? How about the Union?”
On being reassured that Lam and the employees were not there
to demand the Union, Cheng replied: “If that was the case, no
matter how many, that’s not a problem, you know, if you [do]
no demand a union, there will be no problem to hire any num-
ber of you.” Later, as they were leaving the meeting, Cheng
repeated this remark to Wing Lam, stating, “Look, if no union I
will hire any number, if that’s okay to you.”
After the meeting, Wing Lam called Jonathan Chiu and
Kwong Yau Cheng on separate occasions to arrange another
meeting between the parties. However, neither Chiu nor Cheng
agreed to meet again.
It is clear that the Union, the former employees of the old
Silver Palace and Respondent’s supervisors and principals
knew with certainty that Chan and Chiu were going to purchase
the assets of the old Silver Palace and run the same operation
under the name of the New Silver Palace. Thus, the meetings
described above were preliminary discussions with the Union
as to the conditions under which Respondent would hire the old
Silver Palace employees.
The Board has held that an employer’s statement that he in-
tends to hire a fixed percentage of union employees is a viola-
tion of Section 8(a)(1). Thus, Jonathan Chiu’s statement that
Respondent would hire only a minority of the old Silver Palace
employees is a clear refusal to hire employees because of their
activities and support of the Union and is a violation of Section
8(a)(1).
I also find Kwong Yau Cheng’s statement made with the ex-
press authorization of Jonathan Chiu that Respondent would
hire old Silver Palace employees only if the Union did not seek
to represent them as a clear refusal to hire employees because
of their activities and support of the Union and a violation of
Section 8(a)(1).
Even before Jonathan Chiu and Richard Chan purchased the
assets of the old Silver Palace Restaurant, the testimony of the
alleged discriminatees shows that Yuk Yin Law called many of
them at home to discourage them from supporting the Union
and told them they would not be hired at the new restaurant if
they continued to support Wing Lam and the Union.2
The below-named employees credibly testified that Yuk Yin
Law, an admitted supervisor, had the following conversations
with them.3
Busboy Poon Git Woo it was credibly testified that on or
about July 24, after Respondents meeting with the Union, Law
telephoned him and asked him whether there was a union meet-
ing and what was discussed at that meeting. Woo told him they
had discussed getting jobs at Respondents operation when it
reorganized. Law told him that there was “no use” in such a
meeting, and if they wanted a job with Respondent, they would
have to pay money to Respondent.
A week or so later, Law again telephoned Woo and renewed
his demand of money from Woo to gain employment with Re-

2 The facts of this meeting is based upon the credible and unrebutted
testimony of Wing Lam, Yu Hui Chang, and Guo Chang Liang.
3 As set forth in detail below, I conclude Law is not a credible wit-
ness. I discredit his entire testimony, except where he makes admis-
sions against Respondent’s interest. I credit General Counsel’s wit-
nesses concerning their conversations with Law. I was impressed with
their demeanor. Moreover, their testimony was detailed, corroborated
by other employees, and consistent on cross-examination.

NEW SILVER PALACE RESTAURANT 297
spondent stating that “they,” an obvious reference to Respon-
dent, were afraid the workers would make trouble for Respon-
dent. Payment of money was to insure their loyalty.
I conclude that Law’s questions to Woo about what took
place at the union meeting constitutes unlawful interrogation in
violation of Section 8(a)(1), Hoffman Fuel Co., 309 NLRB 327
(1992). I also conclude that Law’s demand that Woo would
have to pay money to get a job was intended to coerce Woo to
abandon his activities and support for the Union, in violation of
Section 8(a)(1).
On July 31, Fung Yee Chen, a dim sum server previously
employed by Respondent, testified that Law called her at home
and asked her why she had attended the union meeting with
Jonathan Chiu and then told her that if she continued to support
the Union she would not be hired. I conclude Law’s question-
ing as to Chen’s presence at the union meeting constitutes
unlawful interrogation in violation of Section 8(a)(1). Hoffman
FueI, supra. I also conclude that Law’s statements to Chen that
it would be useless to support the Union and she would not be
hired because of her union activities are threats to abandon the
Union, and threats that she would not be hired because of her
activities on behalf of the Union. See Wellstream Corp., 313
NLRB 698, 706 (1994).
Sometime in the beginning of August, Tae Hung Wan, a
waiter who had filed an application for employment with Re-
spondent, met with Law. Law told him in order to be hired he
would have to pay $5000 to Respondent for a share in the busi-
ness in order to be hired by Respondent. Law additionally told
Wan that he should tell Fung Yee Chen, a dim sum server, to
cease her activities and support of the Union. I find such
statements implied threats that employees would not be hired
unless they ceased their activities and support of the Union, in
violation of Section 8(a)(1).
On or about September 21 after the Union began picketing,
as described below, Fung Yee Chen credibly testified that Law
saw her on a street near Respondent’s restaurant and told her it
was “no use” to picket, that following the Union would do her
no good, and that if she continued to picket she would not be
hired constitute a threat of unspecified reprisal, and a threat that
she would not be hired unless she ceased her activities and
support of the Union in violation of Section 8(a)(1).
In the first few days of August, Respondent placed a job ad-
vertisement in the Sing Dao Daily News, a Chinese newspaper,
and distributed job applications, which were written in English
although none of the employees nor Respondent’s supervisors
spoke or understood English. The applications were available
at the restaurant, which was undergoing renovation at the time.
During the first week of August, the alleged discriminatees
went to the restaurant, were given a blank application, in Eng-
lish, and were told that they should return it within a day or
two. Most of the applicants were also told that they should
attach a picture to the application. No other instructions were
given.
After picking up the application forms, most of the alleged
discriminatees went to the Union for assistance in filling out the
applications. These applicants only listed their names, ad-
dresses, the positions applied for, and their employment history
at the old Silver Palace Restaurant. Out of the 18 alleged dis-
criminatees who actually submitted applications, only Pak Sum
Wong and Yam Ping Ou filled in the section of the application
entitled “work references.” Some employees failed to fill in the
blank requesting the name of their prior employer, which in all
cases was the old Silver Palace. All of the 23 alleged discrimi-
natees were long-term employees of the old Silver Palace. The
same is true as to the supervisors of Respondent.
On returning to the restaurant, the alleged discrimatees either
handed their applications to someone or placed them in a box
on a counter inside the restaurant.
Respondent received 91 applications, filled out in whole or
in part, and hired 35 of the applicants. None of the applicants,
whose name was on the Union’s July 25 letter to Respondent
indicating those employees, namely the 23 alleged discrimina-
tees alleged in the complaint who wanted employment by Re-
spondent, was given employment. As set forth above, 18 of
those 23 applicants had filled out and returned their applica-
tions to Respondent.
On August 10, General Manager Howard Chiu sent a letter
to 16 of the applicants who filled out an application stating their
applications were denied because “necessary elements re-
quested within the application was [sic] incomplete.” Two
other applicants, Pak Sum Wong and Yam Ping Ou, were is-
sued another form letter, dated August 14, which stated that
their applications were placed on a waiting list for “future ref-
erence.”
Five alleged discriminatees—Guo Chang Liang, Kin Ng,
Poon Git Woo, Tak Hung Wan, and Siu Nin Wong—did not
submit applications.
Guo Chang Liang, a former waiter at the old Silver Palace
Restaurant, credibly testified that he went to the New Silver
Palace Restaurant the first week of August and asked Howard
Chiu for an application. Chiu said that there were no more
available. When Liang asked whether there would be any ap-
plications available the next day, Chiu stated the applications
were “all finished.” Liang stated that he did not return to the
restaurant because he thought Chiu was simply making an ex-
cuse not to make the applications available to him. I conclude
that Chiu did not intend to give Liang an application.
After the auction, Kin C. Ng credibly testified that he was
invited to a meeting, set forth and described above by King
Yang Lee, a waiter later hired by Respondent. Also in atten-
dance were Jonathan Chiu, Yuk Yin Law, Hon Ping Kong, Kok
Hong Huie, Tony Lee, and King Kei Mui.
Ng credibly testified that at the meeting Jonathan Chiu—said
that if you are a union member you would not be hired. Ng
also recalled that Jonathan Chiu stated $5000 would have to be
paid for “shareholding adversity” for a job. Subsequently, Ng
stated he went to the restaurant and asked Yuk Yin Law for a
job application. Law told him they had used all the application
forms but that he could come back and pick up a form the next
day. Two days later, Ng returned to the restaurant but was told
by Yuk Yin Law that there were no applications available. I
conclude Ng did not make further attempts to fill out an appli-
cation, because he felt it would be futile.
As discussed supra, prior to the auction Poon Git Woo testi-
fied that Yuk Yin Law called him on two occasions and stated
that he and the others attending the union meetings were not

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 298
going to be rehired unless they put in money. Woo stated Law
said the money was needed because they were afraid the work-
ers would make trouble and the restaurant would be destroyed.
After Woo became aware Respondent was accepting applica-
tions for employment, he stated that he did not submit an appli-
cation because he did not have the money for a job and because
Yuk Yin Law told him that when “you joined a Union . . . no-
body was going to employ you.” I conclude Woo made no
attempts to fill out an application because it would be futile.
In the beginning of August, Wan handed his application to
Yuk Yin Law at the New Silver Palace Restaurant. Law stated
he would speak to the investors for him but that a picture was
required on the application, and handed the application back to
him. Two or three days later, Wan credibly testified that he
spoke to Yuk Yin Law near the restaurant and that Yuk Yin
Law told him $5000 was needed for a share in the business. At
that time, Wan testified that Law further stated that he should
tell Fung Yee Chen not to help the Union. Although he had a
picture for the application, Wan testified that he did not return
the application because of Law’s statements against the Union
and because he did not want to pay $5000 for a job.
I conclude that but for Respondents conduct, each of these
employees would have filled out an application.
Section 8(a)(3) of the Act prohibits employers from dis-
criminating against employees in regard to hire, tenure or any
term or condition of employment in order to discourage mem-
bership in any labor organization. In order to establish a prima
facie violation of Section 8(a)(3), it must be shown that the
employee was engaged in union activity, that the employer had
knowledge of such activity, that the employer exhibited animus
or hostility toward said the activity, and that the employee’s
protected activity was a “motivating factor” in the employer’s
decision take adverse action against the employee. See Wright
Line, 251 NLRB 1083, 1089 (1980), enfd. on other grounds
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Once a prima facie case has been established, the employer
has the burden of showing that the same action would have
been taken place even in the absence of protected conduct. Id;
Manno Electric, 321 NLRB 278, 280 fn. 12 (1996). An em-
ployer cannot meet that burden simply by showing that it had
legitimate reasons for its actions but must persuade the trier of
fact that such actions would have occurred even in the absence
of protected conduct. Pacific Custom Materials, Inc., 327
NLRB 7 (1998).
However, where the evidence shows the employer’s asserted
reasons for its actions are pretextual, i.e., they do not exist or
were not relied on, the Board is justified in concluding that the
pretextual reason was asserted to mask its unlawful reason.
Limestone Apparel Corp., 255 NLRB 722 (1981).
The Board has unequivocally held that the Wright Line stan-
dard governs “refusal-to-hire” cases, such as the one at bar.
Champion Rivet Co., 314 NLRB 1097 (1994).
The facts establish that restaurants in New York’s “China-
town” do not use applications to hire employees. Ads are
placed in local Chinese newspapers, and those employees inter-
ested in jobs apply in person. New York’s “Chinatown” is a
very tight community.
The applications themselves were a cynical joke, which re-
vealed Respondent’s determination not to hire union applicants.
The applications were printed in English, a language which
none of the 91 applicants, nor Respondent’s supervisors under-
stood. Respondent might just as well have printed the applica-
tions in Hebrew or Latin.
Respondent’s refusal to hire the 18 union applications be-
cause they lacked a picture or the name of their prior employer,
or list references is blatantly pretextual. All the union appli-
cants had worked at the old Silver Palace for years along with
Respondent’s supervisors, some of whom were unit employees.
The application procedure was in itself a pretext.
I conclude Yuk Yin Law, and Hau Moon Leung, Respon-
dent’s supervisors who supposedly received, and reviewed the
union applications, if they were reviewed at all, knew these
applicants personally, that their prior employer was the old
Silver Palace, and that their references were Respondent’s su-
pervisors with whom they had worked with for years. I con-
clude the failure to hire any of these union applicants is clearly
pretextural. This is further conclusively established by the fact
that every nonunion applicant who was hired required Respon-
dent’s supervisory assistance in order to fill in all the blanks.
Respondent also contended that some union applicants were
not considered because they did not speak enough English and
Respondent wanted to expand its virtually 100-percent Chinese
customers to include English speaking customers. I find this
contention both laughable and pretextual. At the trial Respon-
dent customers were still virtually 100-percent Chinese.
Haw Moon Leung testified that he refused to hire certain of
the alleged discriminatees because their work was not satisfac-
tory. I discredit Leung since these employees were longtime
employees at the old Silver Palace whose work was never ques-
tioned before. Moreover, since the whole application process
was intended to avoid hiring union supporters and Leung was
in on this conspiracy. I conclude he is not a credible witness. I
therefore discredit all his testimony except where there is an
admission against Respondent’s interest.
The facts establish Respondent’s knowledge, animus, and an
admission by Respondent’s vice president and minority owner
of a refusal to hire the employees who were employed at the
old Silver Palace and were active and supporters of the Union.
This is established by the July 30 meeting, described above,
where Jonathan Chiu told Wing Lam, the union representative,
in the presence of several alleged discriminatees that Respon-
dent would not recognize the Union as the collective-
bargaining representative for Respondent and would not hire
union supporters to insure that the Union never achieved a ma-
jority status.
Yuk Yin Law’s 8(a)(1) statements to the alleged discrimina-
tees especially those conditioning consideration for employ-
ment on paying $5000 for a share in the business further estab-
lishes Respondent’s unlawful motive.
It is crystal clear that the General Counsel has established an
exceptionally strong case showing Respondent’s refusal to hire
the alleged discriminatees was discriminatorily motivated.
Respondent contends primarily it did not hire the alleged
discriminatees because they did not fill out their applications
properly or failed to submit applications. As set forth above, I

NEW SILVER PALACE RESTAURANT 299
find such contention pretextual. My finding is the same as to
employees who were not hired because they could not speak
English.
Thus, given nothing else, I would conclude that Respon-
dent’s refusal to hire the alleged discriminatees was a clear
violation of Section 8(a)(1) and (3) of the Act.
However, in this case there is an admission that Respondent
executed a complex plan, centered around its phony application
procedure to avoid hiring the alleged discrimatees. Howard
Chiu, Respondent’s general manager, testified that Richard
Chan, the principal owner in the old Silver Palace, and the prin-
cipal owner (66 shares) in Respondent met with him and his
father, Jonathan Chiu, vice president and minority owner (33
shares) of Respondent. Chan stated he felt that the Union put
him out of business with the old Silver Palace, and he was not
going to recognize the Union as the representative of Respon-
dent. Chan stated he was going to use employment applications
to avoid hiring union supporters and still give the impression
that his refusal to hire union supporters was within the law.
It was decided to require all applicants to fill out written ap-
plications. Each applicant was required to affix a picture to his
application. This requirement was to enable Hau Moon Leung,
who was in charge of hiring, to be able to pick out the union
supporters at a glance. Before the application forms were dis-
tributed it was decided to prepare three stacks of applications
submitted. One stack for union supporters whose applications
were incomplete, even to the smallest detail. These applicants
would be rejected for failure to complete the application prop-
erly. A second stack was for those former old Silver Palace
employees who were considered loyal to Respondent, and other
applicants in the community who were known by Richard to be
loyal to Respondent. If these employees failed to fill out their
application forms properly Respondent would help them cure
the defects by helping them fill out the defects or getting super-
visors to fill out the omitted blanks. The third stack was for
those union supporters who did fill out their applications prop-
erly. They were to be placed on a waiting list. But as Richard
Chan told the Chiu’s, “We can’t really reject this guy, so he’s
on the waiting list and let them wait.”
Howard Chiu’s testimony was corroborated by Wing Lam,
who met with Jonathan Chiu. Lam credibly testified that Jona-
than Chiu told him he wanted to settle the instant case. Chan
did not. That Chan used his majority ownership status to vote
out Chiu as the vice president as of September 1.
I credit entirely Howard Chiu’s testimony. Notwithstanding
his termination, along with that of his father on September 1,
while this trial was in progress, Chiu’s testimony was so de-
tailed and consistent under scathing and intense cross-exam-
ination of Respondent’s counsel that I conclude it simply has
the ring of truth. Therefore, I also find Lam’s testimony con-
cerning his conversation with Richard Chan to be credible and
admission against Respondent.
For the reasons set forth above and the admissions hearing, I
conclude that Respondent’s refusal to hire the alleged discrimi-
natees is a violation of Section 8(a)(1) and (3).
The evidence establishes that when Respondent opened its
doors for business it employed 35 unit employees. The unit
represented by the Union at the old Silver Palace was:

All full-time and regular part-time dining room employees in-
cluding waiters, busboys and dim sum girls, excluding all
kitchen employees, offices, clerical employees, captains,
managers, guards and supervisors as defined in the Act.

Since 1980, the Union had a series of collective-bargaining
agreements with the Union concerning the above bargaining
unit. The last collective bargaining expired on March 31, 1997.
On May 29, the date the old Silver Palace Restaurant closed,
the mandatory subjects of bargaining contained in the most
recent collective-bargaining agreement between the Union and
the old Silver Palace Restaurant were in effect. In part, that
agreement provided that “tipped” employees, waiters and bus-
boys were paid the applicable minimum wage plus, $0.70 while
dim sum servers were paid no less than $7.84 per hour. The
agreement also provided that employees with greater than 3
years of service received 2 weeks of vacation and those with
greater than 5 years received 3 weeks of vacation. All employ-
ees were granted six holidays and received health insurance
contributions by the old Silver Palace Restaurant. Moreover,
numerous witnesses testified that at the time the old Silver Pal-
ace Restaurant closed, managers and other “black jacketed”
(supervisory) head waiters did not receive tips.
The record shows that on opening the restaurant, Respondent
paid its dining room employees lower wage rates, provided
fewer vacation and holidays, and did not provide any health
insurance benefits. Respondent stipulated that its waiters and
busboys are merely paid the applicable minimum wage rate,
$3.15 while dim sum servers are paid only $5.15 per hour.
Respondent further stipulated that it pays only 1 week of vaca-
tion and provides no holidays or health insurance coverage. In
addition, Respondent’s records show that Managers Hau Moon
Leung, and Howard Chiu, as well as, Supervisory Head Waiters
Yuk Yin Law, Kok Hong Huie, and Tse Yu Cheung received a
portion of the tips, which was contrary to the practice estab-
lished at the old Silver Palace Restaurant prior to its closure by
the Bankruptcy Court.
It is settled Board law that a successor employer must recog-
nize and bargain with a union when it hires a “substantial and
representative” compliment of employees, the majority of
which are the predecessor’s employees who were represented
by the Union. NLRB v. Burns Security Services, 406 U.S. 272
(1972); Fall River Dyeing Corp., 482 U.S. 27 (1987).
In determining whether such a bargaining obligation is pre-
sent, the Board examines a number of factors, including: (1)
whether there has been a substantial continuity of the same
business operation; (2) whether the new employer uses the
same plant; (3) whether the alleged successor employs the same
or substantially the same work force; (4) whether the same jobs
exist under the same working conditions; (5) whether the same
supervisors exist; (6) whether the same equipment and methods
of production exist; and (7) whether the same product or ser-
vices are offered.
In the case at bar, it is clear that Respondent is a successor
employer. It is engaged in the operation of a Chinese restaurant
at the same facility occupied by the predecessor employer, the
old Silver Palace Restaurant. As discussed above, at a mini-
mum, the record shows that Respondent would have hired the

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 300
29 dining room employees listed by the Union in its letter of
July 25 to Respondent absent its unlawful conduct. Inasmuch
as Respondent initially hired 31 dining room employees, it is
clear that Respondent would have employed substantially the
same work force as the predecessor employer. Moreover, the
evidence shows that its principal managers/supervisors, Hau
Moon Leung, Yuk Yin Law, Kok Hung Hie, and principal
owner, Richard Chan, were employed by the predecessor em-
ployer. Thus, notwithstanding the bankruptcy of the predeces-
sor, I conclude that Respondent is at the very least, a successor
employer. See Nephi Rubber Products Corp., 303 NLRB 151
(1991) (bankruptcy causing 16-month hiatus does not constitute
essential change in business).
A successor employer may unilaterally set new terms and
conditions of employment, unless it has “made it perfectly
clear” that it plans to hire the predecessor’s union employees as
a majority of its workforce. Spruce-Up Corp., 209 NLRB 194
(1974), enfd. 529 F.2d 516 (4th Cir. 1975). However, where an
employer has unlawfully refused to hire employees in order to
avoid recognizing a union, the Board has unequivocally de-
clared that such an employer forfeits any right to unilaterally
set the initial terms and conditions of employment of the af-
fected unit employees and must “retroactively restore the terms
and conditions of employment that existed under the predeces-
sor’s contract with the Union until such time as the Respondent
and the Union bargain to agreement or to impasse, and to make
whole the bargaining unit employees in a manner consistent
with the contract’s provision.” Galloway School Lines, 321
NLRB 1422, 1427 (1996). See also Carib Inn of San Juan, 312
NLRB 1212 fn. 4 (1993); U. S. Marine Corp., 293 NLRB 669,
672 (1989), enfd. 916 F.2d 1183 (7th Cir. 1990).
Here, the evidence establishes that Respondent changed the
terms and conditions of employment by paying its dining room
employees lower wage rates, providing fewer vacation and
holidays, failing to provide any health insurance benefits, and
requiring waiters and busboys to share tips with supervisory
and managerial personnel, which was contrary to the practice
established at the old Silver Palace Restaurant prior to its clo-
sure by the bankruptcy court. I conclude that by unlawfully
failing to hire a majority of union employees and implementing
such changes in the terms and conditions of employment for its
dining room employees, Respondent violated Section 8(a)(1),
(3), and (5) of the Act.
On August 26, the grand opening of Respondent, the Union
began picketing in front of the New Silver Palace Restaurant to
protest Respondent’s discriminatory hiring practices. Picketing
has continued as of the close of this trial on January 28, 1999.
Almost immediately, Supervisory Head Waiter Yuk Yiun
Law led a group of employees employed by Respondent,
known as “counterdemonstrators” out of the restaurant and onto
the sidewalk to respond to the union pickets. General Manager
Howard Chiu joined the counterdemonstrators and helped Law
hand out picket signs to the employees. According to numer-
ous witnesses for the General Counsel, Law led the chanting of
the counterdemonstrators, yelling that the union pickets were
the “Lap dogs” of Wing Lam and that the families of Wing
Lam and Kwong Hui would die.
In addition, the “counterdemonstrators” repeatedly threat-
ened to kill the families of Kwon Hui and Wing Lam, made
threats to inflict bodily harm upon the union pickets, made
threats of unspecified reprisals, and engaged in photographic
and video surveillance of the union pickets. I find all of these
activities separate violations of Section 8(a)(1). See, e.g.,
F. W. Woolworth Co., 310 NLRB 1197 (1993) (employer may
not photograph or videotape picketers absent proper justifica-
tion); Refuse Compactor Service, 311 NLRB 12 (1993) (threats
of violence to picketers’ families unlawful).
The record shows that these chants and other “counter-
demonstration” activities continued almost daily, until ap-
proximately the end of October and that other managers and/or
supervisory head waiters, such as Jonathan Chiu, Howard Chiu,
Hau Moon Leung, Kok Hong Huie, and Tse Yu Cheung, also
actively took part in the demonstrations.4
Around 11 a.m. on Sunday, October 11, 1998, the Union
picketed once again in front of the New Silver Palace Restau-
rant. Four of the alleged discriminatees—Fung Yee Chen, Yau
May Cheng, Yau Mei Chang, and Moon Tong Leung–took part
in the picketing, along with several other supporters. The pick-
eters had signs and a banner, and also placed a cardboard “cof-
fin” on top of a small table. The coffin was decorated with
slogans denouncing Respondent’s treatment of union members;
the signs and banner had similar messages. The picketers stood
on top of the curb separating the sidewalk from the street,
roughly 15 feet from the entrance.
Soon after the picketing began, King Kei Mui, a waiter for
Respondent, and Chan Hung, Respondent’s chief chef, came
down from the restaurant to confront the picketers. Hung
kicked the picketer’s coffin, leaving part of it damaged. Both
went back to the restaurant.
Five minutes later, Mui returned to the front of the restaurant
with four other waiters, Chan Jor Louie, Hon Ping Kong, Kwan
Chan, and Chiu Tong Ng, as well as, one of the kitchen work-
ers. They brought out a large banner with them. All of the
counterdomonstrators were on duty and wearing their uniforms.
David Chin, a manager for Respondent, held the door open for
the counterdemonstrators to exit the restaurant.
Three of the counterdemonstrators approached Yau Mei
Chang, who had been distributing fliers at a nearby street cor-
ner. They angrily pointed at her and said that she was destroy-
ing their jobs. Frightened by the confrontation, Chang came
back toward the other pickerters. Mui and Ng followed her
back and then kicked the picketers’ coffin to pieces. Fung Yee

4 The principal witness concerning alleged illegal conduct by Re-
spondent in connection with the pro union pickets were Union Presi-
dent Kwong Hui, and alleged discriminatees Fung Yee Chen, Yau Mei
Chang, Yau May Cheng, and Moon Tong Leung. Their testimony was
detailed and consistent under intensive cross-examination. I conclude
their testimony was credible. Moreover, based on comparative de-
meanor considerations with Respondent witnesses, I find General
Counsel’s witnesses to be more credible. Further, in view of Respon-
dent’s systematic plan to avoid recognizing the Union, which included
various threats to employees, a refusal to hire any union supporters, and
instead hiring only employees who were loyal and responsive to Re-
spondent position, I find that Respondent’s witnesses who testified to
the various picketing incidents described below were untruthful.

NEW SILVER PALACE RESTAURANT 301
Chen kneeled down and tried to pick up the pieces of the coffin,
but Ng forcefully grabbed her by the arm and shoulder. She
told Ng that he was hurting her and threatened a lawsuit against
him. Another of the discriminatees, Moon Tong Leung, came
over to assist Chen. Ng scratched him on the arm, drawing
blood.
During these events, Respondent’s supervisors, Hau Moon
Leung and David Chin, stood behind the glass doors of the
restaurant and observed what was happening.
The police arrive soon after the confrontation, at which point
Respondent’s counterdemonstrators retreated back into the
restaurant. Respondent’s supervisor, David Chin, remained on
the scene, however, to explain the counterdemonstrators’ ac-
tions to police. Fung Yee Chen, whose arm was “swollen” and
“shivering” from the pain, was sent to the hospital by ambu-
lance and given tests.
The Union resumed picketing in front of the restaurant on
Monday, October 19, around 6 p.m. Again, Fung Yee Chen,
Yau Mei Chang, Yau May Cheng, and Moon Tong Leung were
present, along with other supporters. They had the same ban-
ner, signs, and a new coffin.
Soon after the picketing began, King Kei Mui, Hon Ping
Kong, Chan Hung, and three other kitchen workers came down
from the restaurant to counterdemonstrate. Tim Chan, supervi-
sor within the meaning of the Act, was also present, standing
close to the doors of the restaurant. Holding a big banner, the
counterdemonstrators rushed at the union picketers and began
punching them from behind the banner. Mui grabbed a union
supporter named Nelson by the neck and cut him with his nails.
Another union supporter was grabbed by Chan Hung and
dragged away from the restaurant. Hung flipped the sup-
porter’s jacket over his head and began beating him with his
fists. Other counterdemonstrators joined in the beating. Maria,
another union supporter, was also beaten up by one of the coun-
terdemonstrators. The police arrived and arrested King Kei
Mui, Chan Hung, and two other kitchen workers.
Section 8(a)(1) of the Act prohibits an employer from inter-
fering with, restraining, or coercing its employees in the exer-
cise of their Section 7 rights. This prohibition extends to acts
of violence against employees or destruction of property that
restrain or coerce employees. See Pioneer Recycling Corp.,
323 NLRB 652, 659 (1997); M. A. Harrison Mfg. Co., 256
NLRB 427, 430 (1981).
On both October 11 and 19, Respondent counterdemonstra-
tors physically assaulted union supporters resulting in bodily
injury and destruction of property. During the violence by the
Respondent counterdemonstrators on October 11, Respondent’s
supervisors, Daniel Chin and Hau Moon Lueng, were present
and observed the acts of bodily injury and destruction of prop-
erty. On October 19, Respondent’s supervisor, Jim Chan, was
present and observed the violent conduct again resulting in
bodily injury and destruction of property.
The evidence establishes that during the entire course of
picketing the counterdemonstrators has supervisory personal
present on the picket line. Jonathan Chiu, Howard Chiu, Hau
Moon Leung, and Yuk Yin Law engaged in photo and video
surveillance and made various threats of unspecified threats,
and threats to kill and bodily violence.
The evidence also establishes that during the violent picket-
ing on October 11 and 19, described above, Yuk Yim Law was
present, and Tim Chan actually inflicted bodily injury on the
union pickets.
Under these circumstances, I find that Respondent’s repre-
sentatives, at the highest level, condoned, encouraged, and
inflicted bodily harm on the union pickets as alleged, in viola-
tion of Section 8(a)(1) Diamond National Glass Co., 317
NLRB 1048, 1050 (1995); Great American Products, 312
NLRB 962, 963 (1993).
Hon Kong Lok became employed by Respondent as a stock
room clerk on August 26, 1997. Lok testified he was in charge
of the warehouse, that he was a salaried employee, ordered
meat from the wholesalers, and had authority to reject unfit
food. Lok’s supervisor was Hau Moon Leung.
Lok, Jonathan Chiu’s brother-in-law, contacted Union Rep-
resentative Wing Lam, at Jonathan Chiu’s request to set up a
meeting between Jonathan Chiu and Lam. The meeting took
place on or about August 3, as described above.
On August 26, the Chinese newspaper, World Journal,
printed an article concerning the details of the August 3 meet-
ing and stated the meeting was “arranged by some relative,” an
obvious reference to Lok.
Two days after the article was published, Lok credibly testi-
fied that Manager Tse Yu Cheung asked Lok whether he was a
union member. Lok replied that he participated in other asso-
ciations in Chinatown.
On September 1, Lok credibly testified that Hau Moon
Leung approached him in the storeroom and stated that Chiu
was suspected to be “too pro-Union” and that they also sus-
pected Lok was prounion. Lok did not reply whereupon Leung
handed him his salary and stated that he was terminated.
As set forth above, I have concluded that Hau Moon Leung
is not a truthful witness. I therefore do not credit his testimony
with respect to Lok’s termination.
It is clear that Lok set up the August 3 meeting with Wing
Lam and Jonathan Chiu. It is also clear based on Lok’s credi-
ble testimony concerning his conversation with Leung that
Leung stated he was aware of Lok’s setting up the August 3
meeting and that he was “pro Union” and then told him he was
terminated. The World Journal news article indirectly referred
to Lok as the individual who set up the August 3 meeting when
it stated the meeting was set up by a close relative of Chiu.
Clearly, Respondent knew Lok was Chiu’s brother-in-law.
In view of Respondents other 8(a)(1) and (3) violations, and
in view of Leung’s “pro-Union” statement, immediately fol-
lowed by Lok’s termination without stating any reason, I find
such termination to be a violation of Section 8(a)(1) and (3).
Since the union activity did not relate to filing of charges,
giving testimony in Board procedures or relate to any Board
related process, I do not find that Lok’s discharge violated Sec-
tion 8(a)(4) so alleged. In this regard, the Region was unaware
of the private August 3 meeting. Such meeting was not part of
the Board’s processes.
Respondent contends that Lok is not an “employee” within
the meaning of the Act because Jonathan Chiu is his brother-in-
law.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 302
Section 2(3) of the Act excludes “any individual employed
by his parent or spouse” from the term “employee.” Thus, by
its literal terms Section 2(3) does not disqualify Lok as an em-
ployee under the Act. In fact, there is no case law to support
the proposition that a close relative of the employer, other than
a child or spouse, can be excluded from the protection of Sec-
tion 8 of the Act solely because of familial status.
The Board has had the occasion, however, to interpret the
scope of the term “employee” for the purposes of determining
whether individuals are properly included in an appropriate
bargaining unit under Section 9(b) of the Act. Even under such
an analysis, the Board has generally found spouses and children
to be “employees” where the managerial or supervisory relative
owns less than a 50-percent interest in a corporation. See
NLRB v. Action Automotive, 469 U.S. 490, 497 fn. 7 (1985). In
most situations, the Board examines whether the close relative
of an owner or shareholder enjoys special status or receives
benefits or privileges not accorded other employees. Id. at
495–496; see, e.g., Alois Box Co., 326 NLRB 1177 (1998);
T. K. Harvin & Sons, 316 NLRB 510 (1995); and M. C. Deco-
rating, Inc., 306 NLRB 816 (1992): In this case, the brother-in-
law of part owner was excluded where he recorded his own
hours, submitted them directly to owner, and was not required
to clock-in or out.
In the instant case, there is no evidence that Lok enjoyed
special status or enjoyed special privileges due to his familial
relationship to Jonathan Chiu.
Respondent employed Lok as a stock room clerk, a nonbar-
gaining unit position. He testified that he was in charge of the
warehouse, i.e., he ordered and inspected meat from wholesal-
ers, and possessed the authority to reject unfit food, and to ad-
just incorrect orders.
He was paid $350 per week and his supervisor was Hau
Moon Liung. There was no evidence Respondent employed
other stock room clerks or that Lok supervised employees.
Thus, even if Lok is examined under the usual “community of
interest” analysis the Board employs in representation cases,
there would be no basis to exclude him as not being an em-
ployee within the meaning of Section 2(3) of the Act. Nor is
there any evidence Lok exercises the type of independent
judgment which would render him to be a “supervisor” under
the Act. See, e.g., Lakeview Health Center, 308 NLRB 75
(1992).
Respondent contends that Lok acted as a manager for Re-
spondent and therefore is not an “employee” under the Act.
The Board has defined managerial employees as those who
“formulate and effectuate management policies by expressing
and making operative the decisions of their employer, and those
who have discretion in the performance of their jobs independ-
ent of their employer’s established policy.” General Dynamics
Corp., 213 NLRB 851, 857 (1974). (“[M]anagerial status is not
conferred upon rank-and-file workers, or upon those who per-
form routinely, but rather is reserved for those in executive-
type positions, those who are closely aligned with management
as true representatives of management.”) Id.
I conclude Lok does not meet the requirements for being a
managerial employee. Lok was in charge of the store or stock
room. Lok would receive deliveries from food merchants and
judge them with respect to price, quality, and weight. He did
have the authority to reject an order if the quality was not good,
and he had the authority to decide whether, if a shipment was
less than was ordered, to change the delivery order or to have
the merchant make up the difference later. However, Hau
Moon Leung was in charge of placing the food orders; Lok
played no role in this. Moreover, there is no evidence that Lok
had any role in deciding how much food to order, what kinds of
food to order, or from which merchants to order. Lok’s role
was essentially to check the food deliveries as they came in and
make sure they met Respondent’s price, weight, and quality
specifications. Since Lok played no role in setting those speci-
fications, I do not find him to be a managerial employee. See
Manimark Corp., 307 NLRB 1059, 1061 (1992), enf. denied on
other grounds 7 F.3d 547 (6th Cir. 1993).
REMEDY
Having found that Respondent engaged in violations of Sec-
tion 8(a)(1), (3), and (5) of the Act, I find that Respondent must
be ordered to cease and desist therefrom, and to take certain
affirmative action designed to effectuate the policies of the Act.
1. With respect to those employees that Respondent would
have employed but for their membership in, and or activities on
behalf of the Union, and with respect to its unlawful termina-
tion of Han Kong Lok, I recommend Respondent must be or-
dered to offer employment to those individuals to positions to
which they applied for or would have applied for, had it not
been for Respondents’ unlawful refusal to employ them, or
substantially equivalent positions, without prejudice to their
seniority or any rights or privileges to which they would have
enjoyed. With respect to Lok, I recommend Respondent must
be ordered to reinstate him to his former position of employ-
ment, or a substantially equivalent position without prejudice to
his seniority or any rights or privileges to which he previously
enjoyed.
All of the above employees must be made whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them, with backpay extending from the date
of the unlawful refusal to hire them, until the Respondent offers
them employment. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). With respect to Lok, he must be made whole, as
set forth above, from the date of his termination, until Respon-
dent offers him reinstatement.
2. Respondent must be ordered to remove from their files
any reference to the unlawful refusal to employ the employees
named above including Lok, and notify them in writing that this
has been done and that these personnel actions will not be used
against them in any way.
3. Respondent must be ordered to recognize and, on request,
bargain collectively with the Union as the exclusive collective-
bargaining representative of its employees in the unit found
appropriate herein with regard to wages, hours, and other terms
and conditions of employment; and if agreement is reached,
embody it in a written and signed instrument; such appropriate
unit is:

NEW SILVER PALACE RESTAURANT 303
All full-time and regular part-time dining room employees in-
cluding waiters, busboys, and dim sum girls, employed by
Respondent excluding all kitchen employees, office clerical
employees, captains, managers, guards and supervisors as de-
fined in the National Labor Relations Act.

4. Respondent must upon the Union’s request, rescind any
departures from the terms and conditions of employment that
existed prior to the opening of the New Silver Palace Restau-
rant, and retroactively restore preexisting terms and conditions
of employment, and make whole the bargaining unit employees
by remitting all wages and benefits that would have been paid
absent such unilateral changes from on or about August 26,
1997, until Respondent negotiates in good faith with the Union
to agreement or impasse.
[Recommended Order omitted from publication.]