Rhee Bros., Inc.

National Labor Relations Board - Board Decisions

Nov 23, 2004

343 N.L.R.B. 695 (N.L.R.B. 2004)

RHEE BROS., INC.
343 NLRB No. 80
695
Rhee Brothers, Inc. and Ui Dal Kim. Case 5–CA–
29127
November 23, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND MEISBURG
On January 8, 2003, Administrative Law Judge Leo-
nard M. Wagman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief, and the Re-
spondent filed a reply 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 conclusions2 as
modified below, and to adopt the recommended Order.3

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.
2 It is undisputed that employee Chul Hyun Chong was discharged
for his strike activity. We agree with the judge that the remedial issues
arising from Chong’s unlawful discharge should be left to the compli-
ance stage of this litigation.
Inasmuch as we agree with the judge’s finding that Ui Dal Kim
made no promise that employees would refrain from striking, we need
not address the issue of whether he had any authority to make such a
promise.
3 We agree with the judge that the strike was protected concerted ac-
tivity under the Act and that the Respondent violated Sec. 8(a)(1) by
discharging the strikers for engaging in it. “It is well-settled Board law
that concerted employee protests of supervisory conduct are protected
under Section 7 of the Act where such protested conduct affects em-
ployees’ working conditions.” Trompler, Inc., 335 NLRB 478, 479
(2001), enfd. 338 F.3d 747 (7th Cir. 2003).
We find that the same conclusion would be reached under the stan-
dard, applied by some courts, that (1) the protested supervisory conduct
must affect employees’ terms and conditions of employment; and (2)
the strike must be a reasonable response to that conduct. See, e.g.,
Yesterday’s Children, Inc. v. NLRB, 115 F.3d 36 (1st Cir. 1997); NLRB
v. Oakes Machine Corp., 897 F.2d 84 (2d Cir. 1990); Dobbs Houses,
Inc. v. NLRB, 325 F.2d 531 (5th Cir. 1963). Thus, the Respondent
admits that the supervisory conduct here affected the employees’ terms
and conditions of employment. Second, the employees’ conduct—a
strike—was a reasonable response to that conduct. The strike itself was
not a sudden and destructive strike, like those found unprotected in
other cases. Dobbs Houses, supra (finding unreasonable sudden walk-
out by wait staff at height of dinner rush hour); Bob Evans Farms, Inc.
v. NLRB, 163 F.3d 1012 (7th Cir. 1998) (same). Cf. Trompler, 338
F.3d at 752 (affirming Board finding that walkout, which shut down
second shift, was not unreasonable). The strike was not shown to “dis-
proportionately disrupt the Respondent’s operations,” which consist of
a warehouse that does not directly serve the public. Accel, Inc., 339
NLRB 1052 (2003). Further, the employees struck only after other
The judge found that the Respondent violated Section
8(a)(1) by interrogating employees Sang Hui Yun and
Bok Hwan Bae about the strike at the Respondent’s facil-
ity without providing the safeguards required by
Johnnie’s Poultry, 146 NLRB 770, 775 (1964), enf. de-
nied 344 F.2d 617 (8th Cir. 1965). We affirm the judge’s
finding that the interrogation of Yun was unlawful.4
However, we agree with the Respondent that Bae was
given the Johnnie’s Poultry safeguards by Respondent’s
attorney, Jonathan Ahn. Bae explicitly testified that Ahn
told him he did not have to answer the Respondent’s
questions and would face no repercussions if he chose
not to. We therefore reverse the judge’s finding and
dismiss the allegation that the interrogation of Bae vio-
lated the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Rhee Brothers, Inc., Colum-
bia, Maryland, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
MEMBER MEISBURG, concurring.
I agree with all of the majority’s unfair labor practice
findings, including it’s finding that the Respondent ter-
minated employees for engaging in concerted activity. I
write separately to address the additional issue of
whether employee Kim was the agent of other employees
when he told Rhee that the employees would refrain
from striking. If Kim was not the employees’ agent au-
thorized to make that promise, there was no agreement.
It is hornbook law that agency can be created only by
the conduct of the principal; the representations of the
putative agent to a third party cannot create an agency
relationship. See Communications Workers Local 9431
(Pacific Bell), 304 NLRB 446, 446 fn. 4 (1991), citing
Restatement 2d, Agency, §§ 7, 27. In addition, the bur-

avenues of protest had been used. The employees presented the Re-
spondent’s president with a petition seeking the removal of the supervi-
sor who was scheduled to return from leave in 2-day’s time. That
petition stated that the employees were giving the Respondent an op-
portunity to take decisive action on the employees’ request by the date
of the supervisor’s scheduled return. It was only if no action was taken
that the employees would have “to make a courageous decision.”
When no action was taken, and the supervisor returned to work, the
employees presented another management official with a second peti-
tion seeking the immediate transfer of the supervisor. The Respondent
failed to take action. Thus, it was only after presenting the Respondent
with these two petitions, and warning that action (“a courageous deci-
sion”) would follow if action were not taken, that the employees com-
menced their strike.
We modify the notice in accordance with Ishikawa Gasket America,
Inc., 337 NLRB 175 (2001).
4 In so doing, we rely solely on the judge’s crediting of Yun’s testi-
mony because of his forthright demeanor.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD696
den of proof lies with the proponent of the agency rela-
tionship. See, e.g., Millard Processing Services, 304
NLRB 770, 771 (1991).
Here, we have only Kim’s statement that he was mak-
ing a promise on behalf of the other employees to delay
the strike. There is no record evidence from the affected
employees that they denominated Kim as their spokes-
person, or that they in any manner authorized him to act
on their behalf regarding any promise not to strike. I
believe that the burden for producing this evidence was,
in this case, properly on the Respondent, because it is the
Respondent who relies on Kim’s agency to establish the
purported agreement to delay the strike. Respondent
produced no such evidence. Accordingly, I would find
that because the record lacks the necessary evidence that
the employees authorized Kim to make any such agree-
ment, those employees were not bound by Kim’s pur-
ported agreement. Hence, their failure to delay the strike
until May 31 did not cause them to lose the protections
of the Act.
This result on the agency issue accords with the Act’s
overall purpose and the general proposition that the statu-
tory right to strike is not waived in the absence of clear
and unmistakable evidence of the intent to do so. See
Englehard Corp., 342 NLRB 46 (2004).1 It is also con-
sistent with the general requirement, present in cases
involving a labor organization, that there be a showing
that an uncoerced majority of employees authorized the
labor organization to speak for them. Here, although
Kim was clearly not speaking as a labor organization,
Respondent claims that he created an enforceable agree-
ment not to strike on behalf of the other employees. Yet
there was no proof at all from the affected employees that
Kim possessed any authority to speak for them or make
such a promise. Thus, similar to a labor organization that
has not demonstrated majority support, the record here
fails to demonstrate that Kim had any right to bind the
other employees to his purported agreement with the
Respondent.
Because the record does not establish that Kim repre-
sented the striking employees, I would additionally rely
on the foregoing in affirming the administrative law
judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

1 This case does not present an issue of contract coverage versus
clear and unmistakable waiver, because there was no contractual
agreement not to strike.
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 terminate or otherwise penalize any em-
ployees because they engage in concerted activity, in-
cluding a strike, for their mutual aid or protection with
respect to wages, hours, or other terms and conditions of
employment.
WE WILL NOT threaten employees with economic repri-
sals including refusal to deal with their grievances, loss
of working time and their termination because they en-
gage in concerted activity, including a strike, for their
mutual aid or protection with respect to wages, hours, or
other terms and conditions of employment.
WE WILL NOT coercively interrogate our employees
concerning their own and other employees’ concerted
activities protected by Section 7 of the Act or about the
subject of unfair labor practice proceedings.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ui Dal Kim, Nak Hoon Chong, Kwang Joon
Park, Man Ho Kim, and Chul Hyun Chong full rein-
statement 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 privi-
leges previously enjoyed.
WE WILL make Ui Dal Kim, Nak Hoon Chong, Kwang
Joon Park, Man Ho Kim, and Chul Hyun Chong whole
for any loss of earnings and other benefits resulting from
their unlawful terminations, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful terminations of Ui Dal Kim, Nak Hoon Chong,
Kwang Joon Park, Man Ho Kim, and Chul Hyun Chong,
and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that the ter-
minations will not be used against them in any way.
RHEE BROTHERS, INC.
RHEE BROS., INC. 697
Brenda Valentine Harris and Jun S. Bang, Esqs., for the Gen-
eral Counsel.
James A. Johnson, Jonathan I. Ahn and Ed Gutman, Esqs.
(Semmes, Bowen & Semmes) and Jae Sung Bae, Esq, (Rhee
Bros., Inc), of Baltimore, Maryland, for the Respondent.
Gabriel A. Terrasa and John M. Singleton, Esqs. (Albertini,
Singleton, Gendler & Darby, LLP), of Owings Mills, Mary-
land, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried at Baltimore, Maryland, on May 8, July 9–13,
September 4–7, 12–14, and 19–21; November 5–8, 14–16, and
26–28, 2001;and on January 22–25, 28, and 29; and February
19, 2002. Upon a charge filed by Ui Dal Kim, an individual,
referred to below as Kim, the Regional Director for Region 5
issued a complaint and notice of hearing on January 31, 2001,1
against the Company, Rhee Bros., Inc., and an amended com-
plaint and notice of hearing on March 26, 2001. The amended
complaint, as further amended at the hearing, alleges that the
Company violated Section 8(a)(1) of the National Labor Rela-
tions Act (the Act), by threatening or coercing employees in a
letter to them because they engaged in concerted activity pro-
tected by Section 7, by forcing five employees to fill out resig-
nation forms, and terminating their employment because they
engaged in concerted activity protected by Section 7,2 and by
coercively interrogating employees about their concerted activ-
ity protected by Section 7 or about such activity of other em-
ployees. In its answers to the complaint and the amendments of
the complaint, the Company denied that it had committed the
alleged unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel3 and the Company, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, warehouses and distributes
Asian food products at its facility in Columbia, Maryland. The
amended complaint alleges, the Company admits, and I find
that, during the 12 months preceding March 26, 2001, the issu-
ance date of the amended complaint, a representative period,
the Company, in the course of its business operations, sold and
shipped from its Columbia, Maryland facility material and
goods valued in excess of $50,000 directly to points outside the
State of Maryland. From this commerce data, I find that the
Company is and has been, at all times material to this case, an

1 Henceforth, unless otherwise stated, all dates referred to in this de-
cision occurred in 2000.
2 Sec. 7 of the Act guarantees employees the right to engage in “con-
certed activity . . . for mutual aid or protection.” Sec. 8(a)(1) makes it
an unfair labor practice to “interfere with, restrain or coerce employees
in the exercise of the rights guaranteed in [S]ection 7.”
3 The General Counsel’s motion to correct the transcript of the hear-
ing in these cases is granted. The corrections are set forth in appendix
“A” attached to this decision.
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES ARISING OUT OF
THE EMPLOYEES’ SECTION 7 ACTIVITIES
A. The Facts
1. The alleged Section 7 activities and the Company’s
response to them4
On an evening in mid-May 2000, Kwang Joon Park, section
manager of the frozen section of the Company’s Columbia
warehouse, met with frozen section employee Chul Hyun
Chong and Hee Woong Kim, an employee in the warehouse’s
pickup section, at Hee’s home to discuss their complaints about
the management style of their superior, Warehouse Manager
Jung Nam Suh. Hee complained that Suh had required him to
write a letter of apology for refusing to perform overtime when
he did not feel well. When Hee expressed his refusal, Suh re-
acted harshly. Hee also complained that Suh show favoritism
toward employees who were closer to him. Park agreed that
Suh was abusive and not evenhanded. I find from Park’s testi-
mony that Suh had often reprimanded him with harsh language
about his work in front of other employees. Park was insulted
by this treatment. Park had also witnessed Suh physically
abuse an employee. Park had heard from other employees that
Suh sent them on errands involving his dog and his wife’s auto,
and, in one instance, asked an employee to fix a heat pump in
Suh’s home. The three employees agreed to discuss their com-
plaints with other employees and write something to the Com-
pany.
On the evening of May 18, Park, frozen section employee
Chul Hyun Chong, Assistant Warehouse Manager Kim, Chang
Hyun Nam, an employee in the warehouse’s pickup section,
and employee Hee Wong Kim met at Hee’s home for 3 to 4
hours. They discussed their complaints about Warehouse Man-
ager Suh’s conduct toward employees at work. Assistant Man-
ager Kim had heard Suh calling male employees “son of a
bitch” and calling female employees “f—king bitch.” Kim had
also heard that Suh had become “pretty upset” and choked em-
ployee Nak Hoon Chong and had kicked another employee
while admonishing him. Kim listened as the other participants
in the meeting expressed their concerns about Suh’s conduct as
warehouse manager and decided to submit a letter to the Com-
pany setting them out.
On May 19, Park presented to Kim a letter addressed to the
Company, drafted by Assistant Department Manager Nak Hoon
Chong, who worked in the warehouses stocking section. Park
and Kim found Chong’s draft inadequate. Kim rewrote the
draft by hand and gave it to Park. With some revision, em-
ployee Duk Nam Yoon produced a printed version of Kim’s
letter and gave it to Park on May 205 at the Company’s ware-

4 Except as noted in footnotes below, I have found no issues of
credibility regarding the employees’ alleged protected concerted activ-
ity and the alleged company conduct in response to that activity.
5 Kim seemed uncertain when he testified that he gave the letter to
Park on May 19 or 20. Park testified that he got the letter back from
Duk on May 20. As Park seemed more certain as to this date, I have
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD698
house. Park took the letter and began asking employees to sign
it.
Park returned to Kim and told him that the other employees
would sign the letter only after Kim had done so. Kim’s was
the first signature on the letter. Park’s was the second signature
on the letter. Twelve other warehouse employees signed the
letter. Among the other signatories were Nak Hoon Chong,
Man Ho Kim, and Chul Hyun Chong. Kim asked about 20
employees to read the letter and sign it if they wanted to par-
ticipate. He obtained several signatures on the letter from em-
ployees in the warehouse’s frozen section. Kim did not obtain
all the signatures appearing on the letter.
Nak Hoon Chong signed the letter6 on May 20. He wrote his
name on the letter, just below Park’s name, and initialed it.
Nak signed the letter because he wanted the Company to trans-
fer Suh from management of the warehouse to another posi-
tion.7
Before receiving the letter, Nak had discussed Manager
Suh’s conduct with other warehouse employees. Specifically,
Nak was troubled by Suh’s use of profanity and his dogmatic
management style. In addition, Suh had physically attacked
Nak at the warehouse in 1994 and again in 1997, during work-
ing hours. In the second incident, Suh called Nak a “son of a
bitch” in a loud voice in front of other employees.
After the 1997 attack, Suh changed his treatment of Nak. He
stopped inviting Nak to assistant department and section man-
agers’ meetings. Suh sent Section Manager Wan Soo Suh to
those meetings. Nak saw Warehouse Manager Suh’s substitu-
tion of Wan as disrespect toward Nak. Nak was also troubled
by this treatment at the hands of one who was younger than
Nak. Nak also resented Suh’s failure to consult with section
and assistant department managers before making warehouse
management decisions. In Nak’s view, under Suh’s dogmatic
style, anyone who opposed Suh’s decision was a traitor.
Section Manager Man Ho Kim seemed uncertain when he
testified that he signed the letter, which he referred to as a “pe-
tition,” on Friday, May 19. However, I have found above that
the letter was not ready for circulation until the following day.
Accordingly, I find that Man signed the letter on May 20, after

credited his testimony in this regard. I also take judicial notice that
May 20 fell on Saturday.
6 Contrary to Nak’s testimony, I find from Park’s credited testimony
that Nak signed the letter on May 20. Nak testified that he signed the
letter on May 19. He seemed uncertain as he gave this testimony. Park
testified with convincing certainty that he did not receive the typed
letter until May 20, and that he signed it on that date. Accordingly, I
have credited Park’s testimony in this regard.
7 Sang Hui Yun testified that he signed the letter after Nak told him
that its purpose was to obtain a wage increase. In his testimony, Nak
emphatically denied telling Sang or any company employee that the
purpose of the letter was to obtain a wage increase. A reading of the
letter reveals that its sole purpose is to persuade the Company to re-
move Jung Nam Suh as warehouse manager. I also note that there was
no showing in the record that the employees raised the matter of a wage
increase at any of their meetings or in any of their discussions regarding
the letter. Nak’s sharp denial, the letter, itself, and absence of any
evidence showing that a wage increase was discussed by the employees
involved in the effort to remove Jung Nam Suh as manager of the
warehouse persuaded me to credit Nak’s denial.
he had read it and agreed with its assertions about Suh’s dog-
matic and very emotional management style.
Man had other complaints about his contacts with Suh at
work. When the equipment assigned to Man for his work in the
frozen section needed repair, he sought Suh’s assistance to
repair it. Although equipment maintenance was one of Suh’s
assigned duties, he often delayed repairing Man’s equipment
until Man provided him with a soft drink. I find from Man’s
uncontradicted testimony that other employees experienced the
same treatment at Suh’s hands.
Man suffered an arm injury early in his employment at the
Company’s warehouse, which required that he stay home from
work. Suh called Man and asked him to return to work before
the injury had healed. Man returned to work. After a few days,
his arm, which had not healed, incapacitated him and he went
home to recover. Soon after his return home, Suh telephoned
Man and stated that if Man did not return to work, he would be
replaced. Man refused to return to work until he had recovered.
Man returned to work thereafter.
On a Friday in May 1999, Man injured his hip when he fell
from a truck at work. Though his doctor advised him to stay
home, Man went to work on the following Monday. Man
found that his injury incapacitated him and asked Suh to excuse
him. Suh looked at the doctor’s diagnosis and remarked that it
did not say that Man should rest at home. Suh refused Man’s
request.
Suh assigned Man to a task that permitted him to sit down.
However, Man was uncomfortable and he complained to Suh.
Suh insisted that Man write a statement that if he, Man suffered
any side effect from his injury Suh would not be held account-
able. Man complied out of fear of reprisal by Suh if he did not
do so.
In April, Suh had reorganized the warehouse to consolidate
checking and stocking under Assistant Department Manager
Bok Hwan Bae. Suh decided upon this change without discuss-
ing it with Ui Dal Kim. Kim believed that his rank entitled him
to participation in the discussion of the proposed change before
Suh implemented it.
At least one of the signatories had no particular complaint
against Suh. Employee Joon Geun Ahn signed the letter to
support Kim and Kwang Joon Park in their effort to remove
Suh as warehouse manager.
On the morning of Saturday, May 20, after 14 employees
had signed the Korean language letter of complaint against
Warehouse Manager Suh, Ui Dal Kim presented it to the Com-
pany’s president, Syng Man Rhee, in the latter’s second floor
office at the warehouse. The letter, as translated into English,
read as follows:
We are writing this letter for the company, believing
that the company’s future is the employee’s future.
To make a better company, we believe that it is neces-
sary to maintain close relationships between the depart-
ment and communications between the departments and
the employees. Unfortunately, our reality is often quite
different. Many of the problems are attributable to Ware-
housing Manager Jung Nam Suh. As a manager, he
should lead all the employees through communication and
RHEE BROS., INC. 699
cooperation, and he should take care of the employees and
be loyal to the company, but what he has actually done is
just the opposite. We should like to write something about
what he has done.
1. Discretionary behavior.
Regarding important departmental matters, he does not
discuss or consult with the person in charge, the section
chief or the assistant manager, but makes decisions at his
sole and subjective discretion. He will not accept any
comments on his direction or policy.
2. Indistinct separation of personal affairs from busi-
ness.
Work is affected by his personal and private relation-
ships. He treats the employees unfairly by giving good
evaluations to his close friend employees, which causes a
lot of complaints from the other employees. He talks too
much about private things (mostly golf-related) during
working hours, thus discouraging work morale. He also
uses employees for personal matters (maintenance of his
own car, picking up his family members, etc.) during
working hours. He does not allow workers to do overtime,
even when it is absolutely necessary.
3. Work based on his mood swings.
He always changes the way of doing work depending
on his mood, and insults and threatens employees with
violent and abusive language. He treats us as if we were
his servants; not like employees of the same company. He
always insults and blames us. That’s why new employees
do not stay at the company for long. The manager repeat-
edly kicks out employees whom the company has hired
and trained with great effort.
4. Communication problems.
He distorts and intercepts employee requests, sugges-
tions and comments at his discretion. But, he escalates the
blame from the top management enormously, so as to
make employees fearful about getting demoted and termi-
nated. Although the employees make good suggestion for
the company, they are never delivered to the top manage-
ment if he thinks the suggestion may have adverse effects
on his job security and personal interests.
But on the other hand, instructions or criticism from
the senior management are exaggerated and delivered with
anger, without considering their true intent. In this situa-
tion, how can employees have affection for the company
assets?
We have more to say, but we would like to summarize
as above. For these reasons, we strongly ask that Manager
Jung Nam Suh be terminated from his present position.
This request is not made based on personal feelings or in-
terests, but is made in order to make a better company
through achieving a good working environment and work
efficiency. We believe that we can be successful only
when the company is successful. We request that the
company take decisive action by May 22nd (Monday).
Otherwise, please understand that we will have to make a
courageous decision. Please forgive us for the disturbance
we have made and understand that this is our only choice,
and the choice was made from our love of, and loyalty to,
the company.
Kim presented the Korean version of the quoted letter, in an
envelope, to President Rhee, with a greeting, but without dis-
cussion or comment. Soon after he returned to the warehouse’s
first floor, a request for his presence in President Rhee’s office
came over the PA system. Kim returned to Rhee and noticed
that he was “somewhat unstable” and took some medicine.
Rhee asked Kim if the letter’s content was true. Kim answered
that it was. Rhee said he had discussed the issue raised by the
letter with Managing Director Jae Doh Koh. I find from Kim’s
testimony, on cross-examination by Company counsel, that
Rhee asked that the employees wait until May 31 before taking
any action. Kim said “all right” and that he had to consult with
his colleagues. He left Chairman Rhee’s office and returned to
the warehouse’s first floor.
Immediately, Kim reported his encounter with Rhee to the
employees gathered on the first floor. He was nervous and
uncertain about what Rhee had said about delaying employee
action. He told the employees that he could not remember
whether Rhee asked for delay of their contemplated action until
the end of May or the end of June. I find from the testimony of
Kwang Joon Park, Man Ho Kim, and Ui Dal Kim that the em-
ployees feared Suh’s reaction to their effort to remove him,
when he returned from vacation on Monday, May 22, and
wanted Rhee to remove Suh immediately.
About 30 minutes after reporting to the petitioning employ-
ees, Ui Dal Kim returned to Rhee and told him that the employ-
ees were willing to wait, but feared Suh’s reaction to their let-
ter, when he returned on Monday. Ui Dal Kim said the em-
ployees wanted Suh transferred as soon as he returned on Mon-
day. Rhee said he understood and instructed Kim to take the
matter up with Managing Director Koh.
By the time Kim arrived with the employees’ message, Rhee
had shown the employees’ letter to Koh. Rhee instructed Koh
to find out the facts behind the issue raised by the letter. Kim
went to Koh’s office. Koh assured Kim that something would
be done about the matter raised by the letter. That afternoon,
Koh gave the employees’ letter to Operations Director Soo
Wang Hong with instructions to verify its contents.
Hong took the letter seriously. He wondered if the matters
complained of in the letter actually occurred. He also noted the
considerable number of employees, who had signed it. When
Warehouse Manager Suh returned from vacation on the morn-
ing of Monday, May 22, Hong quickly confronted him with
questions about the complaints expressed in the letter. Hong
questioned Suh about his conduct. Suh insisted upon seeing the
letter to learn the substance of the allegations against him.
Hong did not reveal the letter’s substance. Nor did he reveal
the names of the employees who had signed it. Following this
discussion, Suh returned to work.
On the evening of May 22, Director Hong met with Ware-
house Manager Suh, Assistant Department Manager Bok Hwan
Bae, and Section Manager Nam Young Kim. The three dis-
cussed the headcounts of those who signed the letter and those
who did not and the expected work stoppage of the signatories.
The three discussed how they would prevent interruption of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD700
workflow and full-scale paralysis of the Company’s operations.
Hong requested that Suh and Nam bring to work as many em-
ployees as possible. In this discussion, Hong did not identify
the employees who had signed the letter.
President Rhee spoke to Warehouse Manager Suh on May
22. The two did not discuss the content of the employees’ let-
ter. Rhee did not show the letter to Suh on this occasion. In-
stead, they discussed Ui Dal Kim, Nak Joon Park, Nak Hoon
Chong, and Man Ho Kim. Suh criticized each of the four.
When Suh arrived at work in May, he had already heard
about the letter in a phone call, on Sunday, May 21, from Bok
Hwan Bae. In the same phone call, Bae also told Suh that Ui
Dal Kim had presented the letter to Syng Man Rhee and that
Kwang Joon Park, Man Ho Kim, and Nak Hoon Chong had
signed it.
On Monday, May 22, Ui Dal Kim was troubled when he ob-
served that Suh had returned to work and the Company had
taken no action to remove Suh from his position. In the after-
noon of the same day, Kim composed a petition, in Korean, to
the Company, which, according to the English translation, in-
cluded the following:
First of all, I would like to apologize to the chairman
and to all the Rhee Bros family for raising this problem,
but it was necessary in order to restore the dignity of the
Warehousing Department, improve work efficiency, and
correct the unfair treatment of the employees.
This problem came from out affection for the company
and our desire to make the company, the Warehousing
Department and the employees better.
I am sorry that this happened during Manager Jung
Nam’s leave, but we had the meeting before he left and
didn’t know the date of his leave, but we had the meeting
before he left and didn’t know the date of his leave until
the previous day. And coincidentally, this was the same
method that he had used in dealing with his business. The
integration of Pickup Department and the organizing De-
partment was done during Assistant Manager Nak Hoon
Chung’s leave, without considering his opinion as the head
of the department. I just received notice as the assistant
manager after all the decisions had been made.
1. The year-end party incident.
Manager Jung Nam and several other people attempted
to boycott the party, ignoring the company’s good inten-
tions. They never explained their reasons, but just tried to
discourage the whole warehousing department from par-
ticipating in the party. However, most of the employees
actually did participate in the party, so they had bad feel-
ing about this.
2. Recently, resisting Mrs. Jae Hae Lee’s order to take
an inventory of the tools, the company’s assets, he didn’t
repair the vehicles, so he incurred a loss in work and to the
company.
3. Taking care of private matters during working
hours.
When I consider the company’s size and workload, I
can understand Mr. Suh’s (as the manager of the Ware-
housing Department) need to take care of some of his pri-
vate matters during working hours. But, it went beyond
the acceptable level, causing work delays and losses to the
company.
Mr. Suh ordered Mr. Sang Kyu Park, who is in charge
of the inventory work, to do the following private work for
him: repair of his own car, housekeeping, errands for his
family, and even shaving his puppy, and repairs on his
home. He also opened a company account and used it pri-
vately. Mr. Sang Kyu Park spent a whole workday taking
care of the Manager’s personal matters. It has been a quite
while now that he has been using an employee as his pri-
vate secretary.
4. Unfair vehicle repairs based on a close friend rela-
tionship with him.
Pickup trucks are the top priority, and then, in the
Vegetable, Organizing and Refrigeration Department.
5. Asking something in exchange for doing a repair
(an orange juice or soda).
It was not just a token of gratitude, and it became the
practice and everybody felt that they had to do it. If
someone ignores this, he will definitely get unfair treat-
ment.
6. Unfair treatment of employees based on having a
close friend relationship with him (tardiness, early leave,
absence without notice, etc,).
7. Employees in the Packaging Department were
asked to bring food.
8. Violence and insults to the employees-just to take a
few of the more serious victims, Assistant Manager Nak
Hoon Chang, Chang Gil Kim, Kyun Duk Moon, Man Ho
Kim and Soon Ja Park.
9. Insulted the other department head (Section Chief
Kwang Joon Park) and tried to fire him by mentioning the
name of senior management and accusing him of not being
the proper person for the position.
10. Ignoring the company’s system of rank.
In carrying out his work, he ignored the organizational
chain of command and inappropriately discussed matters
with people who were his friends.
There is a rumor that Manager Jung Nam Suh has his
own warehouse inside Rhee Bros’s. Since he is consider-
ing only his own interests and safety, and doing things that
damage the company’s interests and future, we request the
resignation of Manager Jung Nam Suh.
On the afternoon of May 22, Ui Dal Kim presented the
quoted letter to Director Hong. Upon reading the letter, Hong
said he understood the situation and that he had suspected that
this was happening. In a report of his investigation of the is-
sues raised by the employees’ letter, Hong referred to Kim’s
letter as a “supplementary description.”
In the portion of his report referring to May 22, Hong tells of
his afternoon interview with Ui Dal Kim. After reporting the
discussion of the employees’ letter and Kim’s supplement,
Hong reported telling Kim that it would be “the right thing to
wait until 5/31/00 just as instructed by Mr. Chairman, since a
personnel action cannot be taken overnight solely based on the
unilateral demand of one side.” Hong’s report shows that Kim
RHEE BROS., INC. 701
express uncertainty as to how the employee would act. Hong
reported that upon hearing Kim’s response, Hong concluded
that the employees “would deal with the issue by exercise of
power.” Hong’s report stated that he sought to placate Kim by
telling him that “it would work out with a nice appearance if
wait as instructed.”
Ui Dal Kim drafted a petition on May 22, after women em-
ployed in the Company’s packing department wanted to join in
effort to remove Suh as warehouse manager. Kim signed the
petition and obtained 26 signatures from other employees, in-
cluding packing department employees. Among those signing
this petition were Kwang Joon Park, Man Ho Kim, Nak Hoon
Chong and Chul Hyun Chong. A line was drawn through each
of the signatures of employees Hwa Young Kim, Won Soo She,
and Bong Soo Kim. Employee Sang Gyu Park’s name appears
on the petition with “resigned” next to it. The name of em-
ployee Jung Yang Ha appears on the petition with “vacation”
next to it. Kim signed both Sang’s and Hwa’s names at their
requests. Sang had resigned his employment and Hwa was on
vacation. The petition stated:
We are requesting for the department Manager Jung
Nam Suh’s withdrawal. However, since the company has
its procedures and methods, we will conform to it and fol-
low such.
But first, we want the department Manager, Jung Nam
Suh, to withdraw from all storage work.
In the event that this problem does not precede, all of
those who petitioned will resign.
This is our genuine concern for the company’s growth.
The employees, who had signed the petition of May 22, met
after work that day at a bowling alley near the warehouse.
Among those present were Ui Dal Kim, Nak Hoon Chong, Man
Ho Kim, Chul Hyun Chong, Kwang Joon Park, and the packag-
ing employees. The 23 assembled employees discussed the
Company’s inaction. They mistrusted the Company in light of
its failure to remove Suh from the warehouse. Some of the
employees favored a strike to show their unity in demanding
Suh’s removal as warehouse manager. The employees agreed
to show their strength and unity by having a meeting at the
bowling alley on the following day, at 8 a.m., instead of going
to work.
At 8 a.m., on May 23, about 20 of the Company’s employ-
ees, including Ui Dal Kim, Chul Hyan Chong, and Nak Hoon
Chong met at the bowling alley, which was not open. The
meeting moved, to a Burger King across the street from the
bowling alley. Man Ho Kim and Kwang Joon Park arrived at
the Burger King after the others had assembled. Most of the
assembled employees, including Ui Dal Kim, Nak Hoon
Chong, Kwang Joon Park, Man Ho Kim, and Chul Hyung
Chong, agreed that they would not report to the Company that
day. Employees Won Soo Suh and Chun Gyu Kim attended
the meeting but returned that day to work at the Company’s
warehouse. None of the frozen section employees worked on
May 23. The striking employees remained at the Burger King
for 2 or 3 hours and then moved to Chul Hyun Chong’s home.
Operations Director Soo Wan Hong became aware of the
strike soon after his 8 a.m. arrival at the Company’s warehouse.
At around 9:30 a.m., Hong met with Janet Rhee, President
Rhee’s wife and executive assistant, also known as Choon Ok,
and Managing Director Jae Do Koh to discuss the strike. They
decided that the strike was reckless and could not be tolerated.
They decided to deal with it “sternly” and agreed that Ui Dal
Kim, Nak Hoon Chong, Kwang Joon Park, and Man Ho Kim
were “front runners” in organizing the strike and “core” partici-
pants in it.
During the meeting at the bowling alley, the striking em-
ployees designated Ui Dal Kim, Kwang Joon Park, and packing
section employee Soon Ja Park to go to the Company with the
signed petition and look for President Rhee. When they arrived
on the second floor of the warehouse, Kim and his two com-
panions learned that President Rhee was not available. Kim
and the Parks met Janet Rhee. I find from Janet Rhee’s testi-
mony that the strikers’ representatives presented two docu-
ments to her, Kim’s supplemental letter and the petition.8 After
the meeting she gave them to President Rhee.
After Janet Rhee had read Kim’s supplemental letter, Soon
Ja Park and Kwang Joon Park detailed for her their complaints
against Warehouse Manager Suh. Janet Rhee replied that the
employees’ walkout would cause great harm and damage to the
Company. Kim and the Parks said that as long as Suh was in
the warehouse, they were not able to work.
Janet Rhee asked why they had not brought their complaint
to her sooner. The three employees did not answer her. They
said that Suh had treated them unfairly and that they intended to
begin their walkout at once. Janet Rhee asked under what con-
ditions would they be willing to return to work. Kim and the
Parks replied that as long as Suh was gone, they would return to
work. Janet Rhee said she could not decide this matter on her
own. Janet Rhee said she would get in touch with Kim and the
Parks. Janet. Rhee asked if the employees would return to
work if Suh were moved. Kim answered that he could not
make that decision on his own and that he would ask the other
employees and let her know. Kim gave his cell phone number
to Janet Rhee. Janet Rhee said she would talk to Directors
Hong and Koh and get back to Kim and his companions. Kim
and the Parks returned to the Burger King, where the other
striking employees had gone for breakfast.
At approximately 11 a.m., when he had not yet received a
call from Janet Rhee, Kim telephoned her. Janet Rhee re-
marked that the Company’s president had asked the employees
to wait until May 30 and despite that request, the employees
were striking. Continuing, she declared that no matter how
harmful the strike might be to the Company, the management
was not going to grant their petition to remove Suh. Kim an-
swered that he understood and he hung up.
Kim told the assembled employees at the Burger King what
Janet Rhee had said. The employees decided to remain on
strike. They moved to Chul Hyun Chong’s house, where they
had lunch and remained until 5 p.m. Approximately 15 of the
strikers agreed to meet the following day.

8 In their accounts of their meeting with Janet Rhee on May 23, nei-
ther Ui Dal Kim nor Kwang Joon Park testified about giving the peti-
tion to her. However, Janet Rhee’s credited testimony shows that she
received the petition and the supplemental letter on that occasion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD702
After leaving Chul Hyun Chong’s home, Ui Dal Kim went to
Syng Man Rhee’s home. Kim was worried about the emotions
on both sides and the impact of those feelings upon the em-
ployees’ jobs. He arrived at Rhee’s house at about 5:30 or 5:40
p.m. Kim met Janet Rhee and immediately apologized on be-
half of him and the other striking employees for not telling the
Company about their complaints before taking the action. Janet
Rhee answered, agreeing with Kim’s view. She said the whole
thing could have been settled. She added that she had spoken
to Directors Hong and Koh and the Company’s attorney, Jae
Sun Bae. Janet Rhee assured Kim that if the employees re-
turned to work by May 26, there would be no “fuss.” Kim said
he understood and went home.
Later, the same day, Nak Hoon Chong came to Syng Man
Rhee’s home and spoke to Janet Rhee. Chong apologized for
the employees’ action. He said he had signed the petition, but
had no intention of quitting the Company.
That evening, packaging department employee Soon Ja Park
telephoned Janet Rhee, at home. Soon apologized for “creating
a big event.” Rhee assured Soon that the chairman would an-
swer the employees by May 31, and urged Soon to return to
work on the following day.
Later in the evening, Ui Dal Kim received a phone call from
Soon Ja Park. Soon told of her conversation with Janet Rhee
and expressed concern Soon not to worry and that he would call
her back.
Kim immediately called Janet Rhee and complained that
Soon knew about what Janet Rhee had told Kim. Kim had
thought that Janet Rhee had shared that information only with
Directors Hong and Koh, Kim, and Attorney Jae Sung Bae.
Kim’s emotional state caused him to say that he was quitting
his job9 and that he would do anything to have the striking em-
ployees go back to work. Having stated his intentions, Kim
hung up. He then telephoned Kwang Joon Park, Chang Hyun
Nam, Duk Nam Yoon, and Chul Hyun Chong to set up a meet-
ing with them, that same evening at Hee Woong Kim’s house.10
At about 8 p.m., on the night of May 23, Kim, Kwang,
Chang, Hee, Duk, and Chul met at Hee’s house. Park reported
that the striking women feared for their jobs and wanted to
return to work. Duk was an office employee and did not have
much interest in the warehouse employees’ cause. However,
Duk joined in the view that the striking women should return to
work on the following day. The five warehouse employees at
first discussed the continuation of the strike by the warehouse
employees until the Company gave in. Kim became incensed
and said he could not be responsible for their jobs or their liv-
ing and could not go on like this. The five warehouse employ-
ees agreed that Kim was right and they should all go back to

9 On direct examination, Kim testified that he told Janet Rhee he was
going to quit and that he did so because he was emotional. Two days
later, on cross-examination, Kim agreed that he had in fact told her he
“quit right then and there.” Kim gave this answer with certainty and I
have credited it.
10 On directed examination, Kim omitted Duk Nam Yoon from his
account of who attended the Tuesday night meeting. Two days later,
on cross-examination, Kim added Duk. As he seemed to be more care-
ful about his testimony on cross-examination, I have credited that tes-
timony in my findings of fact.
work. It was agreed that they would meet with their colleagues
on the following day and try to convince them to return to
work. The five made phone calls and invited their colleagues
to meet on the morning of May 24, at Hee Wong Kim’s house.
Park, Kim, Chang, and Chul, in separate calls, told the packing
department women to return to work on the following day.
On May 24, Nak Hoon Chong and the packing department
women returned to work at 8 a.m. The remaining 10 or 11
strikers, including Ui Dal Kim, Chul Hyung Chong, Man Ho
Kim, and Kwang Joon Park, met at Hee Wong Kim’s house.
All but Chong met at 8 a.m. Chong arrived at the meeting at 10
or 10:30 a.m. Some of the strikers wanted to remain on strike.
Ui Dal Kim’s idea was to return to work, as Janet Rhee had
urged. By the time Chong arrived, the early arrivals had de-
cided to end the strike and return to work at the Company’s
warehouse.
At around 11:30 a.m., on May 24, Operations Director Soo
Wan Hong used the warehouse’s public address system to
summon employee Nak Hoon Chong to Hong’s office on the
second floor. When Chong arrived, Director Hong handed him
a printed notice written in Korean, that Hong had written, him-
self, on May 23, after consultation and discussions with Presi-
dent Rhee and Managing Director Jae Doh Koh.
I find from Director Hong’s testimony that the three met
three times on May 23. At their last meeting Hong, Koh, and
Rhee decided to adopt an “ultra tough policy” toward those
who participated in the strike. I find from Director Hong’s
testimony that he, Koh, and President Rhee decided to termi-
nate the employment of Ui Dal Kim, Nak Hoon Chong, Kwang
Joon Park, Man Ho Kim, and Chul Hyun Chong.
Hong embodied that policy in his notice. In their discussions
preceding the drafting of the notice, the president and the two
directors agreed that strikers Ui Dal Kim, Nak Hoon Chong,
Kwang Joon Park, and Man Ho Kim, because of their manage-
rial positions, would be required to resign. President Rhee and
the two directors also agreed to require Chul Hyun Chong to
resign because he was a Rhee family member and thus should
not have been involved in the strike.
Hong instructed Chong to take 12 copies of the notice to the
strikers. Chong arrived at Hee Woong Kim’s house at around
noon, where they were distributed to the strikers.
The English translation provided by the General Counsel dif-
fers slightly from the English translation provided by the Com-
pany. Both have been certified as true translations. At the
hearing, I received both translations and the original Korean
text in evidence. However, the amended complaint in this case
relied on the General Counsel’s translation as evidence of vio-
lations of Section 8(a)(1) of the Act in the Korean version.
Accordingly, I am relying on that same translation in making
my findings and conclusions in this decision. That translation
is as follows:
A Letter of Notice
To: Assistant General Manager Eui-dahl KIM and 19
others—May 23, 2000
You are notified of the company position on the inci-
dent of your partial strike of 1) Demand on Replacement
of Manager.
RHEE BROS., INC. 703
We are those who use the same language. We do not
have any difficulty at all in communication in general or
communication of [your] demands. You are trying to ram
through a demand by taking advantage of the means of
strike, i.e., the last resort for [resolving] labor-management
issues. Furthermore, the issue was not even tried out.
Hence it is totally unacceptable.
Also, you unilaterally ignored the promise given by the
chief executive officer to wait absolutely only a certain
time point. Instead, you are resorting to an extreme
method of partial strike. Hence, we cannot accept your
demand as something normal.
No matter what the subject may be, no matter what the
issue may be, or no matter what the problem may be, it is
the position of the company that we shall not compromise
even a single step, if instead of trying to solve the problem
through a dialogue, you unscrupulously elect to use the
method of strike, which should be the last resort after ne-
gotiations and compromise.
As a result, we are not in a position to give you any
answer whatsoever to your demand, even if the company
has its own plans.
(2) Matters to be Notified.
A. You are in the same situation as if you had already
voluntarily quit the company. You must know very well
that the nature of company business is such that it does not
allow many hours unfilled. For those who fail to formally
come to the office for work on time on the morning of
5/26/00, we consider them as those who voluntarily quit
the company. This [courtesy] notification is out of con-
sideration of the family-like work relationship so far; and
you are advised to come to the office for work normally.
B. For those non-managerial level employees who
come to the office normally for work by the morning of
5/26/00, we will not hold you responsible at all with re-
spect to this incident; and just post a 3-day absence.
However, those managerial position holders (Assistant
General Manager, Manager, and those who served as the
source of the problem) are hereby requested to voluntarily
submit a letter of resignation.
C. For other matters than those described in the above,
you are requested to follow the company’s decisions.
May 23, 2000
Rhee Bros., Inc.
Before it was issued, Syngman Rhee read, and approved, the
Korean version of the above-quoted notice drafted. Chairman
Rhee was taken aback by the strike and was angered by it. He
believed that the employees had promised to wait until May 31
before taking any action. He felt as if he had been “back-
stabbed.”
At about noon on May 24, Nak Hoon Chong delivered the
Company’s letter of notice to the ten strikers, who were meet-
ing at Hee Wong Kim’s house. Chong returned to work imme-
diately after delivering the Company’s letter. By the time
Chong arrived at the strikers’ meeting, they had decided to
return to work. After Ui Dal Kim and the other 9 strikers had
read the Company’s letter of notice, Kim wrote a response, in
Korean. The English translation of the letter’s title is “Letter of
Resignation.” Kim and his nine colleagues wrote their names at
the bottom of the letter, but did not execute signatures. The
English translation of the letter reads as follows:
Letter of Resignation
The undersigned employees had no intention to de-
stroy our workplace by engaging in the strike.
Now, we have given up on discussion and decided to
take action to demonstrate our will.
Therefore, we apologize to the chairman and to all our
families.
We will work hard until the company makes a decision
about our action.
The 10 remaining strikers returned to the Company’s ware-
house at about 1 p.m. on May 24. At some point that afternoon,
Ui Dal Kim presented the letter of resignation to Director
Hong.11 Soon after Kim’s arrival at the Company, Director
Hong called him to Hong’s office.
Director Hong’s intent was to carry out the provision in his
notice to the strikers that the striking managers would be re-
quired to submit resignations. Hong also included Chul Hyun
Chong as “a source of the problem,” as described in the Com-
pany’s notice. Hong and Syng Man Rhee also focused on Chul
Hyun Chong because he was a relative of Chairman Rhee.12 It

11 According to Janet Rhee, and Director Hong, Janet Rhee received
the letter of resignation on May 23, when she met with Kwang Joon
Park and Soon Ja Park. Managing Director Koh testified that he re-
ceived the Letter of Resignation on May 23 from Syng Man Rhee.
However, I find from Ui Dal Kim’s straightforward testimony that the
Letter of Resignation did not exist until the afternoon of May 24. Di-
rector Hong seemed to be stretching his recollection when he testified
on cross-examination that he received the letter from Janet Rhee prior
to the arrival of the strikers on May 24. Director Koh seemed unfamil-
iar with the content of the letter of resignation that he understood to be
a letter of employee complaint. Neither Ui Dal Kim, nor any of the
other returning strikers were questioned about when the Company
received the Letter of Resignation. However, the timing of the prepara-
tion of that letter and Ui Dal Kim’s return to the Company’s ware-
house, and Director Hong’s admission that he received it, convinced me
that it arrived at the Company that same afternoon.
12 Jae Doh Koh testified that Hong’s decision to terminate Chul
Hyun Chong was based in part on Chong’s “pretty bad” work perform-
ance, his excessive complaints, and the problems he caused. However,
Director Hong’s frank testimony was that it was Chul Hyun’s leader-
ship in originating the petition and in the strike, which caused Hong,
Chairman Syng Man Rhee and Managing Director Koh to select Chong
for termination. Syng Man Rhee’s testimony did not include any refer-
ence to the quality of Chong’s work, excessive complaints or problems
caused by Chong other than his efforts in support of petition to remove
Suh from the warehouse and his participation in the strike. The lack of
corroboration of Koh’s testimony by Chairman Rhee and Director
Hong, and the absence of any assertions in Koh’s prehearing affidavit
that bad performance, excessive complaint and problems were addi-
tional reasons for Chong’s termination cast serious doubt upon Koh’s
testimony. I also noted that of the three witnesses on this issue of fact,
Hong impressed me as being the frankest in demeanor. Accordingly, I
have credited Hong’s testimony in this regard.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD704
was their view that as a relative, he should not have been in-
volved in the strike.13
At Director Hong’s instruction, Ui Dal Kim gathered Kwang
Joon Park, Man Ho Kim, Nak Hoon Chong, and Chul Hyung
Chong and accompanied them to the director’s second floor
office. Hong distributed a Company form entitled “Resignation
Confirmation Form” and an attached interview form to each of
the five employees. Hong instructed them to fill out the forms
and return them to him. Kim suggested that the other six em-
ployees, who had returned to work that day, should also fill out
the same form. Hong brought the six returned strikers into the
meeting and had each of them fill out the same forms and re-
turn them to him.
When Director Hong distributed the forms, he told the em-
ployees that the Company would keep the completed forms and
that they should not worry. Hong also said the completed
forms would be used to prevent any further incident. Upon
completing and submitting the forms to Director Hong, the
eleven employees returned to work. Hong gave the forms
completed by Kwang Joon Park, Man Ho Kim, Ui Dal Kim,
Nak Hoon Chong, and Chul Hyung Chong to the Company’s
human resources department and kept the remaining forms
which he later either returned to the employees, who had com-
pleted them, or destroyed them in their presence.
At about 4 p.m., on May 24, Director Hong summoned em-
ployees Kwang Joon Park, Man Ho Kim, Ui Dal Kim, Nak
Hoon Chong, and Chul Hyung Chong to his office. Hong told
the five that there were five employees who were close to
Warehouse Manager Jung Nam Suh and would quit if they
came back to work. Hong directed them to go home until the
issue was settled and that he would contact them later. I find
from Nak Hoon Chong’s uncontradicted testimony, that Hong
assured the five that their departure was not a resignation.
Director Hong’s testimony includes the admission that on the
afternoon of May 23, he, Syng Man Rhee, and Managing Di-
rector Koh had decided to terminate the “managerial-level peo-
ple, who were involved in [the petition and strike],” and Chul
Hyun Chong. Hong also admitted that these five were good
workers and that he had delayed the announcement of their
termination, hoping to change the Company’s mind.
On Friday, May 26,14 Ui Dal Kim, Kwang Joon Park, Man
Ho Kim, Chul Hyun Chong, and Nak Hoon Chong returned to
the Company for their paychecks and to find out about their
jobs. Ui Dal Kim saw notations on his paycheck that his salary

13 Syng Man Rhee denied knowing of Chul Hyun Chong’s relation-
ship with the Rhee family on May 23, when the Company’s notice was
prepared. However, Director Hong’s testimony was to the contrary. Of
the two, Director Hong impressed me as having a stronger recollection
of the events and conversations leading up to the decision to insist upon
the resignation of Chul Hyun Chong. In assessing the credibility of
Hong and Rhee, I also noted that Rhee was evasive at times and seemed
to be a reluctant witness. Accordingly, I have credited Hong’s testi-
mony regarding the Company’s decision to get rid of Chong.
14 Ui Dal Kim testified that he, Park, Man Ho Kim, and the Chongs
returned to the Company at 5 p.m. on Thursday for their paychecks.
However, Man Ho Kim and Nak Hoon Chong testified with more cer-
tainty that they returned to the Company on Friday morning, May 26.
Kwang Joon Park did not testify about this event.
and health insurance would be cut off by a certain date. Nak
Hoon Chong concluded that he had been terminated, when he
heard that his insurance would be terminated on May 30. Janet
Rhee spoke to Nak Hoon Chong and told him he could no
longer work for the Company.
Hong’s report on the strike and the events between May 20
and May 26 shows that on May 25, Chairman Rhee, Managing
Director Koh, and Director Hong decided to move Warehouse
Manager Suh from the warehouse department to a new posi-
tion. A Company announcement issued on May 25 or 26 stated
that, effective June 1, Suh would become Maintenance De-
partment Manager. In his new position, Suh was in charge of
repairing warehouse and other Company equipment.
On April 27, 2001, the Company offered reemployment to
Chul Hyun Chong. Chong returned to work at the Company on
June 18, 2001. In May 2000, The Company employed Chong
in the frozen foods section at its Columbia, Maryland ware-
house. However, when he returned to work on June 18, 2001,
the Company did not reinstate him in his position at Columbia.
Instead, the Company employed Chong at Jessup, Maryland,
located a few miles away. There was no showing that the
Company gave any backpay to Chong for the period between
May 25, 2000, and June 18, 2001. I find from Managing Direc-
tor Koh's testimony that after reemploying Chong, the Com-
pany determined that Chong’s performance from January 1
until May 23 did not entitle him to a wage increase, which the
Company granted to most warehouse employees earlier in
2001. Koh relied on evaluations of Chong’s work by a section
manager, who had little opportunity to observe Chong’s work,
and an assistant warehouse manager, who was loyal to Manager
Suh. The General Counsel suggests that this withholding of a
wage increase is a matter to be reviewed at the compliance
stage of this proceeding. I agree and so find. I also find that
the Company has failed to reinstate Chong and grant him the
backpay due him, assuming that his termination was unlawful.
2. The facts regarding the employment of Ui Dal Kim,
Kwang Joon Park, Man Ho Kim,
and Nak Hoon Chong
a. Ui Dal Kim15
The Company hired Ui Dal Kim at the end of 1991, and em-
ployed him at its Columbia warehouse as a checker under the
supervision of Warehouse Manager Jung Nam Suh. Effective
April 1, 1998, the Company designated Kim as assistant de-
partment manager and assistant manager in the warehouse de-
partment. Kim remained in that position until his termination
on May 25. During the last full year of his employment Kim’s
primary function was to check incoming and outgoing ship-
ments.
Kim normally worked Monday through Friday, 8 a.m. to 5
p.m., and on Saturday from 8 a.m. to 1 p.m. He also worked 2
to 4 hours of overtime weekly. Kim spent 70 to 80 percent of
his worktime checking outgoing and incoming goods. Em-
ployee Sang Kyu Park assisted Kim checking incoming goods.
Most of Kim’s time went to checking shipments. He checked

15 My findings of fact are drawn from the uncontradicted testimony
of Ui Dal Kim, Kwang Joon Park, Jung Nam Suh, and Jay Do Koh.
RHEE BROS., INC. 705
the palletized goods using picking tickets, which identify the
goods and the quantity ordered by the customer. After his in-
spection, Kim sent the ticket to the second floor. Kim checked
incoming shipments from documents he received from the sec-
ond floor. He performed this task either inside the incoming
container, or outside the container, while the goods were being
unloaded, or after they had been unloaded.
Each week, the second floor’s purchasing department gave
Kim a weekly schedule of incoming containers and outgoing
shipments. Kim used this schedule to make a daily plan show-
ing the locations of scheduled loading and unloading. He con-
tacted incoming drivers through the Company’s dispatchers
telling them where to spot their trailers at the Company’s ware-
house. Kim also told the Company’s warehouse employees
where designated trailers would be spotted for unloading. Kim
did not tell employees what to unload and where to put it on the
dock. Another employee gave such instructions.
Employee Jae Dong Choi used the information from the sec-
ond floor to make a plan for arranging shipments in the trailers
to facilitate delivery to customers. Kim checked the shipments
for correct quantity and proper packaging condition.
Hourly, during the morning of his workday, Kim toured the
warehouse to keep track of the arrival of containers. He re-
ported such information to the purchasing department manager
on the second floor. Manager Kwang Duk Lee of the purchas-
ing department instructed Kim on which containers were to be
unloaded and the order in which they were to be unloaded.
Kim passed those instructions on to the employees, who were
to unload the containers. After a trailer was opened, Kim dis-
tributed the invoices to the unloading employees.
A listing and detailed description of Ui Dal Kim’s duties
while assistant department manager and department manager
shows that in addition to checking outgoing and incoming
goods, he managed vehicles for cold storage delivery, checked
on the status of the Company retail store’s delivery vehicles for
efficient delivery of goods, managed the warehouse inventory,
fostered cooperation between the warehouse department and
the second floor offices, and kept Warehouse Manager Suh
informed on the status of incoming and outgoing merchandise
and on the status of vehicle management. Kim’s most impor-
tant daily function was keeping track of and inspecting incom-
ing and outgoing shipments.
When Warehouse Manager Suh was not available to conduct
a morning meeting with the warehouse employees, Kim, or
Assistant Manager Bok Hwan Bae conducted it. They re-
viewed the coming day’s work. They did not give out work
instructions to individual employees at these meetings. Each
employee already had his or her morning work schedule. Kim
or Bok invited the employees to speak out if they had any ques-
tions or anything to say.
After he conducted a morning meeting, Kim walked around
the warehouse to ascertain that everyone had received an as-
signment and picking tickets to assemble outgoing shipments.
Kim also considered the need for overtime.
Kim received daily requests for overtime from section man-
agers and, after discussion with Assistant Department Manager
Bok Hwan Bae, made his own evaluation of such need, all of
which he would pass on to either Suh or In-House Sales Man-
ager Lee Byung Joo. In turn, Suh or Lee would talk to Manag-
ing Director Koh about the need for overtime. Koh decided the
issue, and gave his decision to Suh or Lee. Kim received Koh’s
decision and passed it on to the appropriate section manager for
implementation.
Suh authorized Kim to make routine decisions regarding
loading and unloading container or trucks. If, for example
three trucks are to be loaded, and the first scheduled truck has
not arrived, Kim can tell the employees assigned to this task to
load the second scheduled truck, if it has arrived. When Suh
was not present in the warehouse, Kim had authority to ask
employees to move from one section to another in need of extra
help, when requested by an overloaded section. When Suh was
present, Kim made such requests on Suh’s instruction. When a
section manager said he had workers available for assignment,
Kim reported that to Suh, who would instruct Kim where to
deploy them. If Suh were absent from the warehouse, Kim
would send the idle employees to sections in need of help.
I find from Manager Suh and Director Koh’s testimony, that
in addition to 50 to 60 regular full-time employees, the Com-
pany employs from 6 to 22 temporary employees in its ware-
house operations, daily. During his tenure as assistant man-
ager, Kim received requests from section managers, who de-
termined their needs from employee requests for help and the
weekly schedule of incoming containers. Kim received a daily
flow of schedule information from the second floor offices
regarding incoming containers. Based upon requests and in-
formation from the second floor, Kim made daily requests for
part-time employees to executive assistant to the president,
Janet Rhee, who called Just Temps for temporary employees.
Kim had no authority to select temporary employees.
When the temporary employees arrived, Kim deployed them
to the sections in need of help. Upon reaching their assigned
section, temporary employees received instructions from sec-
tion employees as to their tasks.
At the end of the day, Kim signed an invoice for each tempo-
rary employee who had worked at the Company’s warehouse
that day. If Kim found a temporary employee’s performance
unsatisfactory, he made a note on the employee’s invoice that
the Company did not want that employee back. Kim’s com-
mand of English made him the contact man between the Ko-
rean speaking employees and the English speaking temporary
employees.
Kim’s inventory management function required that he go
through the warehouse to check the quantities of particular
products to see if they were running low. Kim checked inven-
tories in this manner at the request of the purchasing depart-
ment on the second floor.
Twice annually, the Company did an overall inventory.
Kim, acting as a conduit for the second floor, coordinated the
collection of inventory data. He told employees which sections
needed review and told them to prepare reports for the second
floor. The employees submitted inventory reports directly to
the second floor.
Kim acted as a conduit between Manager Suh and the ware-
house employees regarding changes in container schedules or
equipment in need of repair. Kim also reported to Suh other
problems raised by the employees. Kim did not have authority
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD706
to resolve any problems raised by warehouse employees. He
simply passed them on to Suh.
Kim had no authority regarding personnel actions. Nor did
he have authority to effectively recommend such actions by his
superiors. He had no authority to hire or fire employees or
effectively to recommend such action. Kim had no authority to
transfer, or effectively recommend the transfer of employees.
He could, however, ask section managers to provide assistance
to other sections, as needed to accomplish the day’s scheduled
work. Kim had no authority to grant vacations. Suh scheduled
employees’ working hours, vacations, and requested leave.
Kim had no authority to write performance evaluations of
employees. During the workday, Kim made comments to em-
ployees about their performance, sometimes praising, other
times criticizing. He did not report his comments to Suh. Kim
had no authority to discipline or effectively to recommend the
disciplining of an employee. Kim had no authority to resolve
either disputes between employees or their complaints.
The Company paid Kim hourly wages starting in January
2000. In mid-May, at Kim’s request the Company began pay-
ing him a weekly salary. There was no change in Kim’s duties
when the Company began paying him a weekly salary. His
salary was $900 per week. His hourly wage at the time of the
change was $15.75.
b. Nak Hoon Chong16
Janet Rhee hired Nak Hoon Chong as a warehouse employee
at the Company’s Columbia, Maryland warehouse, on October
21, 1984. He began work the following day and worked for the
Company at that location until May 24. For the first 6 years of
his tenure at the Company, Nak did stocking, picking goods,
loading, and unloading. For the last 10 years of his employ-
ment, Nak worked only in stocking of both refrigerated and dry
goods. He used forklift trucks to move dry stock and his own
manual labor to move refrigerated goods.
During his employment at the Company, Nak received two
promotions. In 1990, the Company promoted Nak to section
manager of the warehouse’s stocking section. No change in
Nak’s duties accompanied this promotion. On January 1, 1995,
the Company promoted Nak to assistant department manager.
Again, Nak experienced no change in his duties. Nak remained
assistant department manager until his termination on May 24.
Nak stored incoming goods according to invoices he re-
ceived from the second floor. He gave one copy of the invoice
to the employee in charge of the incoming container and kept
the other copy for himself. From the invoice, Nak determined
where to store the incoming item and whether to set some aside
for sale or other disposition. He would use his judgment in
determining if more space were required for further receipts of
a new product. In May 2000, employee Joon Geun Ahn was in
charge of unloading incoming containers. Eight to twelve tem-
porary employees assisted Joon, who had no title and was
shown on the Company’s organizational chart as an employee
in the warehouse’s frozen section. Nak stored the unloaded

16 My findings of fact regarding Nak Hoon Chong’s employment by
the Company are based upon his and Jung Nam Suh’s uncontradicted
testimony.
merchandise or otherwise disposed of it based upon the invoice.
During the last 10 years of his employment by the Company,
Nak’s duties did not change. These duties took almost his en-
tire workday. During his employment, the Company adopted
Nak’s recommendation that the Company’s computers show
the location of stocked goods.
Nak also kept track of items in stock that had exceeded its
expiration date. For example, slow selling noodles or noodle
products had expiration dates. Nak filled out a form showing
the item and its expiration date. He submitted the completed
forms to Warehouse Manager Jung Nam Suh, who sent it to the
second floor for decision by upper management. Pending deci-
sion, Nak or another stocking section employee, on Nak’s in-
struction, would remove the questioned goods from their cur-
rent location to another stocking area to avoid accidental ship-
ping.
Chairman Rhee, a director, or the managing director would
decide whether to discard the product or continue to sell it.
Managing Director Koh usually made the decision. If the sec-
ond floor decided to discard the item, the deciding officer
would instruct Nak to discard it. Nak filled out a form re-
cording the disposition of the item and submitted it to Suh.
Nak may have said something to Suh from time-to-time about
an expired product. However, Nak never made a decision to
discard an item.
Returned goods were Nak’s responsibility. Stores returned
goods for a variety of reasons. Nak took care of returned items.
He, or another stocking section employee on Nak’s instruction,
restocked them if they were in satisfactory condition. Nak
checked the return sheet to see if the quantity shown on the
paper corresponded to the quantity actually returned. He re-
moved price tags, checked to see if the packaging was undam-
aged and if the product had an expiration date that had passed.
If the packaging was intact and the contents had not reached
their expiration date, Nak routinely told the stocking section
employees working with him to shelve the items. Nak worked
along with them.
If the packaging was damaged or the product’s expiration
date had passed, Nak routinely filled out a company form list-
ing the returned product that had failed his inspection and the
reason he had set it aside. He submitted the completed form to
Warehouse Manager Suh. Pending Suh’s instructions, Nak and
other stocking section employees shelved the questionable
items separately.
Along with the other warehouse employees, Nak performed
an inventory once or twice per year, usually in June and De-
cember. The second floor issued a list of warehouse locations
where the inventory would be done, and a map showing those
locations.
In April 1995, after Nak’s promotion to section manager, the
second floor management discovered errors in the lists the
stocking section employees had submitted, after an inventory
they had conducted from March 30 to April 2, 1995. Stocking
section employee Kyung Duk Moon had done the inventory.
The second floor reported the discrepancy to Warehouse Man-
ager Suh. Suh instructed Nak to draft an apology letter, as he
was in charge of the section. Nak drafted an apology letter in
which he took the blame himself and declared: “I will never
RHEE BROS., INC. 707
make this type of mistakes [sic] again.” On instructions from
Suh, Nak discussed the error with Moon. Suh warned Nak to
make sure this never happened again.
From the time the Company promoted Nak to assistant de-
partment manager until his termination on May 24, he had no
authority over personnel dispositions. Nak had no authority to
transfer employees from the warehouse. He had no authority to
fire employees, hire employees, or effectively to recommend
such action by his superiors. Nak had no authority to schedule
an employee’s work hours, nor did he have authority to permit
employees to stay home from work or leave work early. Ware-
house employees calling in sick talked to Manager Suh about
staying home. Nak had no authority to schedule vacations for
employees. Nak never did a written or an oral evaluation of an
employee’s work performance, nor did he have authority to
discipline an employee.
The daily work assignments for the warehouse employees
originated on the second floor, where company officers drew
up schedules of incoming and outgoing shipments of dry and
frozen goods. Based upon those schedules, section managers
would assign tasks to employees. The second floor also issued
a monthly schedule of receipts and shipments. Whenever there
was a change to the schedule, Suh would confer with Purchas-
ing Department Manager Kwang Duk Lee and In-house Sales
Department Manager Bjung Joo Lee and change work sched-
ules if necessary.
Manager Suh conducted daily meetings with the storage sec-
tion and the rest of the warehouse’s 45 employees, at which he
instructed the employees as to their duties for the day. Suh
used the morning meeting to instruct warehouse employees as
to where incoming shipments would be stored and as to in-
house movement of stored stock. On some occasions, Suh
directed the work of stocking section employees using Nak as
his spokesman. Suh would tell Nak of incoming shipments and
where they should be stored.
Nak made certain that the stocking section employees stored
incoming shipments according to their expiration dates. Older
stock was on the lower shelf, where the pick-up employees
could easily reach it. The newer stock was stored on a higher
shelf from where storage section employees moved it to the
lower shelf, as needed. Thus, Nak followed a first-in-first-out
stock control system. Nak fed information about stock quantity
and location into the Company’s computer.
c. Kwang Joon Park17
Kwang Joon Park began working for the Company in Octo-
ber 1992, in the warehouse’s stocking section. In 1993, the
Company transferred him to the warehouse’s freezer section,
where he remained until his termination on May 24. Kwang’s
immediate supervisor throughout his employment at the Com-
pany was Warehouse Manager Suh. When Kwang arrived in
the frozen section in 1993, the section’s employees trained him.
He received no training from Suh.

17 Except as to the date of Kwang’s promotion to section manager,
my findings of fact regarding Kwang’s employment by the Company
are based on his and Manager Suh’s uncontradicted testimony.
Kwang unloaded frozen goods from incoming trucks on pal-
lets and stored the goods in the freezer department. He also
assembled frozen goods on pallets for shipment by truck.
Kwang worked from instructions he received either from Suh
or from the second floor management.
The frozen sections employees loaded trucks according to
picking tickets they received from the second floor. Kwang
and other frozen section employees used forklifts and battery
powered cars to load palletized shipments.
During the last year of his employment, Kwang worked at
the Company’s warehouse from Monday to Saturday. He
worked a total of 47.5 hours per week and received an hourly
wage of $13.35 for 40 hours and weekly overtime pay for 7.5
hours. Each week, the Company paid Kwang and his frozen
section colleagues an extra $45 for working in the freezer.
Kwang devoted half of his workday to loading and unloading
goods. He devoted the rest of his working time to stocking and
storing frozen merchandise. He palletized stock, wrapped it as
necessary and stored it. Kwang performed these tasks at the
Company’s Columbia warehouse, along with employees Man
Ho Kim, Cho An Jong, Song Ha Park, and Young Chan Kim.
Section Manager Nam Young Kim worked alone at the Com-
pany’s freezer at nearby Jessup, Maryland. Each of the freezer
section employees at Columbia, including Kwang, had his own
daily assignment to pick out and load goods for shipment to a
particular nearby Company retail store, based on picking tickets
issued by the second floor. As each employee completed his
assigned shipment, he began assembling a shipment for a store
in Texas, Florida, or some other distant state. Here, again the
instructions came from the second floor.
The frozen section employees received instructions for load-
ing assignments from invoices that the second floor sent
through a pneumatic tube system to the first floor. Employee
Sung Sim Chong made out picking tickets also referred to as
invoices, from store orders. She or the manager of in-house
sales, Byung Joo Lee, would use the warehouse public address
system to tell the frozen section employees that the invoices for
a particular company store were ready. The invoices reached
the first floor and the assigned employee would take his in-
voices and prepare the order for shipment. In addition to the
p.a. system announcements, the frozen section employees had
daily schedules to which they referred. The second floor an-
nounced schedule changes over the p.a. system.
Effective January 1, 1997, the Company promoted Kwang
from assistant section manager to section manager of the ware-
house’s freezer.18 Kwang retained that title until his termina-
tion on May 24. Kwang’s promotion to section manager did
not bring about any change in his job duties. A wage increase
of $50 per week accompanied this promotion. Of this amount,
$30 represented Kwang’s participation in an across-the-board
wage increase for all warehouse employees. The remaining
$20 was compensation for his promotion to section manager.
Kwang’s 4 years’ experience in the warehouse’s freezer sec-
tion rendered him the most senior employee there when he

18 Kwang testified that he believed his promotion to section manager
occurred in around 1995. However, the Company’s records show the
Kwang was promoted to section manager effective January 1, 1997.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD708
became section manager. His familiarity with the frozen sec-
tion’s operations encouraged Manager Suh to look to Kwang to
keep them running smoothly. If anything went wrong in the
frozen section, Suh held Kwang accountable.
Warehouse Manager Suh regularly attended Monday morn-
ing meetings on the second floor, where problems involving the
frozen section, among others were discussed. Kwang never
attended any of these meetings. However, when Suh returned
to the warehouse after a frozen section problem had come up
for discussion at one of these meetings, he took it up with
Kwang. Suh passed on the instructions from the meeting to
Kwang, who passed them on to the frozen section employees.
Kwang used his greater experience in the frozen section’s
work to determine the proper storage of goods. He knew that
heavier items should be stored on the bottom of storage con-
tainers or shelves. The other section employees were aware of
the proper procedure. However, Kwang would correct them if
they erred. Kwang’s experience also taught him the proper
unloading and storage of frozen goods. He passed this knowl-
edge on to the other frozen section employees in the course of
the day’s work. Kwang knew what merchandise to pull from
storage for loading on shipments to customers.
Suh directed Kwang to inspect palletized shipments by com-
paring the assembled goods with applicable picking tickets as
to type of goods and quantity. When the section was busy,
Kwang shared this work with one or more of his section col-
leagues. Kwang and his colleagues cross-checked each other to
make sure the proper items and quantities were ready for load-
ing.
The Company prepared and promulgated a job description
covering Kwang, which stated on its face that he was its drafter.
Kwang admitted that he drafted some of its content, which he
submitted to the second floor. He did not specify his contribu-
tion to the final document. The undated document, entitled
“Contents of Operation” listed Kwang’s duties as section man-
ager, as follows: “1. Sending out products/delivery receiving; 2.
Confirming incoming frozen container; 3. Maintenance of fro-
zen warehouse; 4. Loading; 5. Inspection of packaged mer-
chandise. However, this list omitted some of Kwang’s chores.
Kwang testified that he could not describe all of them. One
example of the unlisted chores involved returned merchandise.
Kwang would inspect such merchandise to see if it was useable
or should be otherwise disposed of. He would then discuss the
item and his observations with Manager Suh.
Kwang had no authority to hire or discharge employees. Nor
did he have authority to recommend effectively such personnel
actions. The Company encouraged Kwang and all other em-
ployees to bring in prospective employees and introduce them
to management for consideration. However, there is no show-
ing that Kwang successfully recommended the hiring of such
individuals. Nor was there any showing that the Company
would accept such a recommendation without further inde-
pendent investigation of the prospective employee’s suitability
for employment by the Company.
Section Manager Kwang had no authority to transfer an em-
ployee from the frozen section to another section of the ware-
house. Nor did he have authority to recommend, effectively,
that an employee be transferred. As section manager, Kwang
had no authority to permit employees to leave work early.
Such authority resided in Warehouse Manager Suh. Kwang
had no authority to approve an employee’s request to work
overtime. Nor did he have authority to schedule or approve an
employee’s vacation request. During his tenure as section
manager, Kwang did not make any written evaluation of any
employee. Nor did he have authority to make such an evalua-
tion. Park had no authority effectively to recommend that an
employee be rewarded or promoted. He did not recommend the
promotion of Man Ho Kim to section manager in the frozen
section, which occurred in January 2000.
Kwang would comment to Manager Suh that a particular
employee was doing a good job or was working hard. How-
ever, Kwang never told Suh that an employee was not doing a
good job. If Kwang found fault with an employee’s perform-
ance, he would discuss the shortcoming with the employee after
work.
In the winter of 2000, Kwang and Section Manager Man Ho
Kim requested Manager Suh to transfer employee Joon Keun
Ahn from the frozen section. Suh investigated on his own and
concluded that there was no reason to transfer Joon. However,
after Kwang and Man argued with him, Suh gave in.
d. Man Ho Kim
The Company hired Man Ho Kim in February 1994, and
employed him in the warehouse’s freezer section until his ter-
mination on May 24. His immediate supervisor throughout his
employment was Warehouse Manager Jung Nam Suh.
Through the last year of his employment, Man worked a 46-
hour week at the Company’s warehouse, starting at 8 a.m.,
Monday through Friday. On Saturday, he worked from 8 a.m.
until 1:30 p.m. During that period, the Company paid Man at
an hourly rate of $11.75.
The Company assigned Man mainly to handling poultry in
the frozen section of the warehouse. He was involved with the
stocking, storage, loading, and unloading of fresh meat and
poultry. He prepared poultry and meat for shipment. He took
care of retail pickups of poultry and meat. Man also worked in
long distance shipping of meat and poultry. He helped Kwang
Joon Park, by checking freezer and refrigerator temperatures to
comply with FDA regulations and by filling oils. Man also
helped Kwang unload, when there was a heavy volume of in-
coming trucks. When Kwang was absent, Man assumed his
duties.
Effective January 17, the Company promoted Man to man-
ager of the frozen section. Neither Manager Suh, nor any other
member of the Company’s management talked to Man about
the significance of Man’s new title prior to the publication of
the notice of his promotion. There was no change in Man’s
work after January 17. With Man’s promotion, there were
three section managers and four nontitled employees in the
frozen section. Section Managers Kwang and Man worked at
the Columbia warehouse and Section Manager Nam Young
Kim worked alone at the Company’s Jessup, Maryland facility.
After his promotion, Man continued to devote his workday
to meat and poultry related work, including long distance ship-
ments. Monday through Friday, Man devoted roughly the first
5 hours of his day to meat and poultry related work. He also
RHEE BROS., INC. 709
prepared long distance shipments from 2 until 5 p.m. Other
frozen section employees performed the same kind of work,
independently. Man worked alone using a pallet truck or a
forklift. He usually worked beyond 5 p.m. on those days
checking on truck containers parked in the Company’s Colum-
bia parking lot. Man checked the condition of the food items
stored in these containers and the temperature inside the con-
tainers.
Man’s meat and poultry related duties involved filling orders
for the Company’s 40 or 50 pickup customers and for the Com-
pany’s six retail stores. Four of the stores were located in
nearby Maryland. One was located in New York and a second
in Los Angeles. The Company had 40 or 50 pickup customers.
Man picked out items requested by a pickup customer or by a
Company store to make up complete orders. The second floor
business office received the pick-up and store orders called
picking tickets and handed them over to Man for filling. He
took the order and went to frozen or refrigerated stock areas to
fill the order. Upon filling a particular store’s order, Man
loaded it on a designated truck. He also handed pickup orders
to the waiting customers.
Man had no authority to direct the work of other employ-
ees.19 Nor did he have authority to discharge or effectively
recommend the discharge of an employee. Man had no author-
ity to hire employees and had no authority to effectively rec-
ommend discharge of an employee. The Company did not give
Man authority to transfer employees from the warehouse. Nor
was there any showing that he had authority effectively to rec-
ommend the transfer of any employee from the warehouse.
Man had no authority to grant vacations to employees. Suh
received employee requests for vacations and had authority to
grant them. Man had no authority to schedule employees’ work
hours. There was no showing that Man could either grant em-
ployee requests for time off or effectively recommend approval
or disapproval of such requests. Manager Suh had authority to
grant such requests. Man had no authority either to evaluate or
to check an employee’s work performance.
The Company’s job description for Man, as section manager
shows his “Duties” as: “1. Overall meat control; 2. Meat pick-

19 Director Koh testified that Man Ho Kim changed the assignments
of the warehouse’s helpers. Man testified that he had no authority to
direct the work of other employees. I have found from Ui Dal Kim’s
testimony that on instructions from Suh, he moved section employees
from a less busy section to a busier section, when necessary. When
Suh was present in the warehouse, Kim checked with him for approval
of such a transfer. If Suh was absent from the warehouse, Kim, on his
own, followed Suh’s instruction. Kim provided detailed testimony in
an objective manner, in contrast with Koh’s bare assertion. Further, in
his testimony on cross-examination, Koh admitted that Man Ho Kim
needed a Korean interpreter to assist him in answering English ques-
tions at the hearing in this case and that at, work, Koh spoke only in
Korean to Man. Koh also admitted that none of the six helpers at the
warehouse were Korean American. He also admitted that they spoke
English, and that none spoke Korean. In the face of Koh’s admissions,
I find it unlikely that Man Ho Kim was capable of giving vocal instruc-
tions to any of the six helpers. In light of Koh’s admissions and my
finding that Ui Dal Kim and Man Ho Kim’s testimony regarding the
helpers was more reliable than Koh’s, I have credited Kim and Man
here.
up at six stores; 3. Frozen products stores and long distance
pick-up.” A second portion of Man’s job description is enti-
tled: “Detailed Description of Duties.” The details of Man’s
duties are number coded to match up with the “Duties” column
of the job description, and read as follows: “1.1 Incoming &
Outgoing of IBP rib; 1.2 Incoming & Outgoing of BB beef and
meat; 1.3 Incoming and Outgoing of MARTIN RIB EYE; 2.1
NY. MD 77. VA 01. MD91. CA11; 3.1 Pick up from Frozen
product stores and long distance.” Man’s job description does
not recite any further duties or details of his duties,
B. Analysis and Conclusions
Section 7 of the Act protects “concerted activities for the
purpose of . . . mutual aid or protection. . . .” Section 8(a)(1) of
the Act enforces this protection “by making it an unfair labor
practice for an employer to interfere with, restrain, or coerce
employees in the exercise of rights guaranteed by [S]ection 7.”
Halstead Metal Products v. NLRB, 940 F.2d 66, 69 (4th Cir.
1991). “Congress intended that the protections of [S]ection 7
be ‘broadly construed.’” NLRB v. Parr Lance Ambulance Ser-
vice, 723 F.2d 575, 577 (7th Cir. 1983). This broad protection
is particularly necessary in cases where, as here, the employees
have no bargaining representative and no other representative
to present their grievances to the Company and “must speak for
themselves as best they [can].” NLRB v. Washington Aluminum
Co., 370 U.S. 9, 14 (1962).
Employees who collectively engage in a work stoppage to
protest over wages, hours, benefits, or other working conditions
are engaged in concerted activity protected by Section 7 of the
Act for “mutual aid or protection” within the meaning of that
section of the Act. NLRB v. Washington Aluminum Co., 370
U.S. at 17, accord: Halstead Metal Products v. NLRB, 940 F.2d
at 70. An employer violates Section 8(a)(1) of the Act by dis-
charging employees who engage in a work stoppage in protest
over such matters. NLRB v. Washington Aluminum Co., 370
U.S. 14–17; New York University Medical Center, 324 NLRB
887, 906 (1997).
The right of employees to engage in peaceful strike activity
finds further protection in Section 13 of the Act, which pro-
vides: “Nothing in this Act, except as specifically provided for
herein, shall be construed so as either to interfere with or im-
pede or diminish in any way the right to strike.” This provision
and Section 7 of the Act, protect the basic right of employees to
engage in a peaceful strike. See NLRB v. Erie Resistor Corp.,
373 U.S. 221, 233–235 (1963). By discharging an employee
for engaging in a protected strike, an employer violates Section
8(a)(1) of the Act. B & D Custom Cabinets, 310 NLRB 817,
818 (1993) affd. 9 F.3d 108 (6th Cir. 1993).
The General Counsel contends that the Company, violated
Section 8(a)(1) of the Act by terminating Ui Dal Kim, Nak
Hoon Chong, Kwang Joon Park, Man Ho Kim, and Chul Hyun
Chong, in retaliation for their concerted action in the initiation
of a petition and the warehouse employees’ strike. The General
Counsel also contends that the Company’s letter of notice, to Ui
Dal Kim and the other striking employees violated Section
8(a)(1) of the Act. The Company argues that its treatment of
the five alleged unlawful discharges did not violate the Act on
the grounds that Kim, Nak, Kwang, and Man were supervisors
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD710
within the meaning of Section 2(11) of the Act, that these same
four individuals were also managerial employees, that the five
were not engaged in protected activity when they petitioned and
struck to have Jung Nam Suh removed as manager of the Com-
pany’s warehouse, and that they voluntarily quit. For the fol-
lowing reasons, I find merit in the General Counsel’s conten-
tions.
The record shows that on May 23, Company President Syng
Man Rhee and Directors Hong and Koh met and decided to
adopt an “ultra tough policy” toward those who participated in
the strike, which had begun that morning. Director Hong
drafted a notice to the 20 strike participants stating, inter alia,
“managerial position holders (Assistant General manager,
Manager, and those who served as the source of the problem)
are hereby requested to voluntarily submit a letter of resigna-
tion. Rhee approved the notice that was issued to the strikers
on the following morning. Assuming that the strike was con-
certed activity protected by Section 7 of the Act, I find that the
Company’s notice interfered with, restrained, and coerced the
striking employees in the exercise of their right to strike.
In their discussions preceding the drafting of the notice, the
president and the two directors agreed that strikers Ui Dal Kim,
Nak Hoon Chong, Kwang Joon Park, and Man Ho Kim, be-
cause of their managerial positions, would be required to re-
sign. President Rhee and the two directors also agreed to re-
quire Chul Hyun Chong to resign because he was a Rhee family
member and thus should not have been involved in the strike.
On May 24, the company issued the notice to the strike par-
ticipants. The notice told the strikers that their resort to the
strike was “totally unacceptable,” that the Company would not
compromise due to the employees’ unscrupulous use of a
strike. The notice went on to warn the strikers that “they were
in a situation as if they had voluntarily quit the company.” The
notice told the strikers that those who failed “to formally come
to the office for work on time on the morning of May 26”
would be considered “as those who voluntarily quit the com-
pany.” The Company’s notice also announced that a 3-day-
absence would be posted to the record of striker who returned
to work on May 26. Those strikers with managerial titles were
“hereby requested to voluntarily submit a letter of resignation.”
In his testimony before me, Director Hong admitted that he,
President Rhee and Director Koh made the decision to termi-
nate the four managers and Chul Hyul Chong during their dis-
cussions on May 23. He inserted the request for voluntary
resignations when he drafted the notice to the 20 strikers. I find
that Hong used the request for voluntary resignations to dis-
guise the Company’s decision to terminate the five leaders of
the employees’ strike because of their leadership.
I also find that the “Letter of Resignation” signed by Kim
and his nine colleagues did not contain any indication that the
“undersigned employees” were in-fact resigning or intended to
do so. Instead, it showed their intent to return to work. The 10
did return to work on May 24.
I have found that Director Hong terminated the employment
of Ui Dal Kim, Kwang Joon Park, Man Ho Kim, Nak Hoon
Chong, and Chyul Hyun Chong that same afternoon. As they
left, Hong assured them that their departure was not a resigna-
tion
Assuming that the strike was concerted activity protected by
Section 7 of the Act, I find that the notice to employees, in
portions quoted above, interfered with, restrained, and coerced
Company employees entitled to such protection by threatening
reprisals against them for engaging in the strike on May 23. By
telling the striking employees that their resort to the strike was
totally unacceptable and that it would not compromise on the
employees’ complaint, because of their strike, the Company
was threatening to withhold any grant of relief for the employ-
ees’ complaints against Manager Suh. In this context, such a
threat to withhold an improvement in the employees’ condi-
tions of employment runs afoul of the protection afforded them
under Section 7 of the Act.
The notice’s statements that the Company was treating the
strikers as if they had already quit their jobs and that unless
they returned to work by May 26, the Company would deem
them to have voluntarily quit, added up to a threat of termina-
tion for participation in the strike. The Board has long recog-
nized that such threats violate Section 8(a)(1) of the Act. Accu-
rate Wire Harness, 335 NLRB 1096 (2001). Assuming that
Section 7 of the Act covered the five leaders, the announcement
of their voluntary resignations constituted threats of termination
violative of Section 8(a)(1) of the Act. Similarly violative of
Section 8(a)(1) of the Act would be the notice’s threat to im-
pose a 3-day absence on strikers who returned to work on May
26.
The record does not support the Company’s contention that
the objective of the five leaders and their fellow strikers was to
substitute Ui Dal Kim for Department Manager Jung Nam Suh.
In support of this contention, the Company relied upon the
allegations in the employees’ letter to Dr. Rhee in which they
complained of Manager Suh’s failure to discuss warehouse
matters with, section managers or the assistant department
manager, before implementing changes he had devised. They
also complained that Suh did not accept comments on his poli-
cies. These complaints in the letter to President Rhee produced
by the joint efforts of Kim, Kwang, Nak, and employee Duk
Nam Yoon, was inserted under the heading, “Discretionary
Behavior.” Nowhere in that paragraph, nor in any other portion
of the letter was there any suggestion that the petitioning em-
ployees, who signed the letter wanted Kim or anyone else to
take Suh’s place as warehouse manager. I find from Kim’s
frank and forthright testimony that he was not interested in
replacing Suh.
Kim’s subsequent letter to the Company included a com-
plaint in item 10 that Suh ignored “the company’s system of
rank.” Absent from Kim’s letter was any expression of prefer-
ence for himself or anyone else in the selection of a new ware-
house manager. Nor did Kim’s or Kwang’s conversations with
members of the Company’s management include any sugges-
tion of a replacement for Suh. In sum, the record shows that
the focus of the five leaders and their allies was the removal of
Jung Nam Suh as manager of the warehouse.
Assuming that the five leaders and the other employees, who
signed the letter and engaged in the strike, were employees
entitled to the protection of Section 7 of the Act, I find that
their objective, the removal of Suh as manager of the ware-
house, was protected. Avalon-Carver Community Center, 255
RHEE BROS., INC. 711
NLRB 1064, 1070 (1981). The Board has recognized that such
activity is protected by Section 7 of the Act “where the identity
of a supervisor directly relates to terms and conditions of em-
ployment, which in turn is based on whether (1) the protest
originated with employees, (2) the supervisor dealt directly
with the employees on matters of concern to them, (3) the iden-
tity of the supervisor directly related to terms and conditions of
employment, and (4) the reasonableness of the means of pro-
test.” Caterpillar, Inc., 321 NLRB 1178, 1179, (1996); Mid-
land Hilton & Towers, 324 NLRB 1141 (1997).
Assuming that the five leaders were employees, I find that
the record testimony of the complaining employees and the
contents of the letter and petition show that Manager Suh dealt
directly with the employees on matters of concern to them and
that the identity of the manager of the warehouse did directly
relate to terms and conditions of employment. Through his
daily interaction with the warehouse employees and in his en-
counters with them, as described in their testimony in this pro-
ceeding, and in their letter and petition, Suh did deal directly
with them. I also find the means of protest in this case, the
letter, the petition (Epilepsy Foundation of Northeast Ohio, 331
NLRB 676, 681–682 (2000)), and the strike (see Yesterday’s
Children, Inc., 321 NLRB 766, 767 (1996)) were reasonable
means of protest.
The Company further contends that Section 7 of the Act did
not protect the strike because the five leaders knew that a strike
would “harm the Company significantly” (Company’s Brief p.
59) and because it was preceded by a sudden ultimatum. The
Company also contends that on May 20, Kim waived the em-
ployees’ right to strike when he agreed to give Chairman Rhee
11 days, until the end of the month to decide about Suh’s posi-
tion. I find no merit in these contentions.
That the strike might have harmed the Company did not de-
prive the strikers of Section 7’s protection. East Chicago Re-
habilitation Center v. NLRB, 710 F.2d 397, 404 (7th Cir. 1983).
In enforcing the Board’s order in East Chicago Rehabilitation
Center, 259 NLRB 996 (1982), the 7th Circuit declared that to
lose the Act’s protection “more must be shown than that the
activity caused inconvenience.” 710 F.2d at 404. Continuing,
the court noted:
The whole purpose of a strike is to impose costs on the em-
ployer, in the hope of making him come to terms; and an ef-
fective strike, by preventing the employer from serving his
customers, necessarily imposes costs on them as well: it
forces them either to turn to other suppliers of the goods or
services sold by the employer (thus denying them their first
choice) or, as this case, to do without for a time.
Contrary to the Company’s position, the strikers in the in-
stant case were under no general duty to “minimize the disrup-
tion” by undertaking the least drastic forms of protest, or by
giving the employer advance notice of a work stoppage. Co-
lumbia Portland Cement Co. v. NLRB, 915 F.2d 253, 257 (6th
Cir. 1990). That the strikers did not expressly warn the Com-
pany that Jung Nam Suh’s return to his managerial duties at the
warehouse on the morning of May 22 would provoke them to
strike on May 23 did not remove their strike from Section 7’s
protection. NLRB v. Washington Aluminum, 370 US at 14. The
Court, in Washington Aluminum, recognized that the require-
ment of specific notice that the Company suggests here “might
place burdens upon employees so great that it would effectively
nullify the right to engage in concerted activities which Section
7 of the Act protects.” Id.
The record does not support the Company’s contention that
the strikers violated an agreement with the Company under
which they waived their right to strike. I have found above that
at the end of their first meeting on May 20, President Rhee
asked Kim for assurance that the employees would wait until
May 31 before taking any action on their request for Suh’s
removal as warehouse manager. I have also found that Kim
replied “all right” and that he had to consult with his col-
leagues. When Kim returned later that same day, he told Presi-
dent Rhee that the petitioning employees wanted Suh trans-
ferred from his warehouse duties when he returned from vaca-
tion on the following Monday. Rhee said he understood, and
told Kim to take this matter up with Director Koh.
I find that Kim did not waive the rights of the petitioning
employees to strike before May 31. Instead, he showed under-
standing of Rhee’s request and added that he had to consult the
petitioning employees, who were waiting on the first floor.
When he returned to the President’s office, on May 20, Kim
said nothing about not striking and told Rhee of the employees’
demand that the Company transfer Suh from the warehouse
when he returned from vacation, on May 22. At that point,
there was no basis for Rhee’s claim that he had an agreement
from Kim that the petitioning employees would give the Com-
pany 11 days to ponder Suh’s fate before striking.
It is well settled that a waiver of a statutorily protected right
under the Act may not be inferred unless it is “clear and unmis-
takable.” Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708
(1983). Accord: Gary-Hobart Water Corp., 210 NLRB 742,
764–765 (1974), enfd. 511 F.2d 284 (7th Cir. 1975). Upon
close scrutiny, I find that the two conversations on May 20,
between Kim and President Rhee, did not include, on Kim’s
part, the “clear and unmistakable” language required by the
Board to waive the petitioning employees’ right under Section
7 of the Act to strike for Suh’s removal from management of
the Company’s warehouse.
The Company contends that Section 7 of the Act does not
protect Kim, Nak, Kwang, and Man because they are either
supervisors within the meaning of Section 2(11) of the Act or
managerial employees, as described under Board policy. I find
that the record does not support these contentions.
Determining whether an individual is an “employee” or a
“supervisor” within the meaning of the Act is of critical impor-
tance because Section 7 of the Act grants the right to engage in
“concerted activities for the purpose of collective bargaining or
other mutual aid or protection” only to “employees.” Section
2(3) of the Act states: “The term ‘employee’ . . . shall not in-
clude . . . any individual employed as a supervisor.”
Section 2(11) of the Act defines “supervisor” as:
Any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD712
fectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
In enacting Section 2(11), Congress sought to distinguish be-
tween true supervisory personnel, who are “vested with genuine
management prerogatives and employees—such as “straw
bosses, leadsmen, [and] set-up men”—who enjoy the Act’s
protection while they perform “minor supervisory duties.”
NLRB v. Bell Aerospace Co., 416 U.S. 267, 280–281 (1974). It
follows that supervisory status should not be construed too
broadly “because the employee who is deemed a supervisor is
denied” the protection of the Act. Chicago Metallic Corp., 273
NLRB 1677, 1689 (1985). Accord: NLRB v. North Carolina
Granite Corp., 201 F.2d 469, 470 (4th Cir. 1953).
Although the language of Section 2(11) lists supervisory
powers in the disjunctive, it also contains the additional re-
quirement that the powers be exercised with “independent
judgment” rather than in a “routine fashion. Hydro Conduit
Corp., 254 NLRB 433, 437 (1981). Accord: NLRB v. Hale
Container Line, 943 F.2d 394, 396–397 (4th Cir. 1991).
Whether the individuals alleged by the Company to be supervi-
sors were informed of their authority to exercise supervisory
power is relevant in determining supervisory status is relevant
in determining supervisory status. Hale Container Line, Inc.,
291 NLRB 1195, 1197 (1988), enfd. 943 F.2d 394 (4th Cir.
1991). The Company had the burden of proving that Kim, Nak,
Kwang, and Man were supervisors within the meaning of Sec-
tion 2(11) of the Act. NLRB v. Kentucky River Community
Care, Inc., 532 U.S. 706, 711–712 (2001).
There was no showing by the Company that Warehouse
Manager Suh or any other member of management ever told
Kim, Nak, Kwang, or Man that they had authority to exercise
any of the powers enumerated in Section 2(11) of the Act.
When each of the five was promoted to a titled position, he
continued to function as he had prior to the promotion. Kim
was, for the most part, a checker of incoming and outgoing
shipments from 1991 until May 24. Nak was a stocker in re-
frigerated and dry goods for the last 10 years of his employ-
ment by the Company. Kwang began working in the ware-
house’s stocking section in 1992. In 1993, the Company trans-
ferred him to the warehouse’s frozen section, where he re-
mained until May 24. Kwang loaded and unloaded, stocked
and stored, palletized stock and wrapped it. The Company
hired Man in February 1994, and employed him in the ware-
house’s freezer section until May 24. Man stocked, stored,
loaded and unloaded meat and poultry. His main concern was
poultry. He used picketing tickets from the second floor to
assemble shipments for customers and for the Company’s retail
stores. He handled poultry and fresh meat receipts and ship-
ments. He also worked with Kwang, checking refrigerator and
freezer temperatures to comply with FDA regulations and by
filling oils. When there was a heavy volume of incoming
trucks, Man helped Kwang unload.
According to their assigned work, the four alleged supervi-
sors received daily work plans, weekly container arrival sched-
ules and daily picking tickets to fill orders for shipment, all
from the management group on the warehouse’s second floor.
At his morning meetings, Suh went over the day’s work plan
for loading and schedules showing the arrival of containers and
departures of shipments and answered questions regarding the
work.
Kim checked incoming freight and shipments against docu-
mentation from the second floor. Kim reported container arri-
vals to the second floor and used the schedule of arrivals and
shipments to spot incoming trailers at the warehouse. With the
help of Company dispatchers Kim told incoming drivers of
their parking locations. Kim told the warehouse employees
where each trailer would be located for unloading. Manager
Lee on the second floor instructed Kim as to which containers
were to be unloaded and the order in which they were to be
unloaded. Employee Choi, on information from the second
floor made a daily plan for arranging shipments in the trailers to
facilitate delivery to customers. Kim checked shipments for
correct quantity and proper packaging condition. Before a
trailer was unloaded, Kim gave the proper invoices to the em-
ployees assigned to unload it. Kim had duties involving Com-
pany delivery vehicles, and warehouse inventories. The com-
pany also charged him with fostering cooperation between the
warehouse and the second floor and keeping Suh informed on
the status of incoming and outgoing merchandise, and of vehi-
cle management. Kim’s most important task was keeping track
of and inspecting incoming and outgoing shipments.
When Suh was absent from the warehouse, Kim conducted
some of the morning meetings in the manager’s place. Al-
though Kim reported information from the second floor to the
employees, he did not make work assignments. Indeed, there
was no showing that in Suh’s absence Kim did more than de-
ploy employees from one section to another in accordance with
the variations in the volume of work in each section and request
by section managers for help. When Suh was present in the
warehouse, Kim sought Suh’s approval before moving employ-
ees from one section to another.
Kim asked the second floor for temporary employees when
requested by section managers, who in turn were acting on
requests of section employees. Kim also checked daily sched-
ules from the second floor to see if he needed temporary em-
ployees. He made such requests to the second floor.
Nak, Kwang, and Man performed warehouse duties based
upon instructions or documents issued from the Company’s
management. They spent most of their working time perform-
ing the same work the other section employees were doing.
They observed the work of the other section employees, cor-
rected their errors and instructed them on proper procedures. If
an employee’s performance warranted criticism, they ap-
proached the employee, gave the criticism and explained the
correct procedure. On occasion such criticism took the form of
verbal reprimands. However, the Board has recognized that a
verbal reprimand is not “discipline” within the meaning of Sec-
tion 2(11) of the Act. Hydro Conduit Corp., 254 NLRB at 437.
When instructing section employees to move from one as-
signment to another, the four alleged supervisors did not use
independent judgment. Instead, they followed instructions
issued by the second floor management. I find that they acted
as leadmen, using their experience and skill to help other em-
RHEE BROS., INC. 713
ployees perform the warehouse’s work more quickly and effi-
ciently.
The work of the Company’s warehouse was routine in nature
and repetitive. Daily and weekly work assignments for each
section came from the second floor. Changes in assignments
work assignments also came from the same source. Picking
orders and invoices also told employees what to do, where to
get the merchandise and where to ship it.
The four alleged supervisors had no authority to take care of
tardiness or early departures. If employees were late or needed
time off, Manager Suh was the sole source for excuse or re-
lease. If the employees had problems or complaints, none of
the four alleged supervisors had authority to solve the problem
or satisfy the complaint. They were the conduits to Suh for
such matters. They had no authority to grant or effectively to
recommend vacations. Employees submitted their vacation
plans to Manager Suh for approval.
None of the four had authority effectively to recommend
personnel actions such as hiring, discharge, or promotion.
Their recommendations would go through Suh to the second
floor, where an investigation and discussion would follow. If
they recommended a transfer out of the warehouse, such a rec-
ommendation would rest with Suh, who would conduct his own
investigation to see if a transfer was warranted.
In sum, I find that the Company has failed to show that Ui
Dal Kim, Nak Hoon Chong, Kwang Joon Park, and Man Ho
Kim are supervisors with the meaning of Section 2(11) of the
Act.
The Company cited no Board or court case in support of its
contention that Kim, Nak, Kwang, and Man are managerial
employees. However, the Board and Federal courts have pro-
vided guidance in defining “managerial employees” explaining
their exclusion from the Act’s protection. The Court, in NLRB
v. Bell Aerospace Co., 416 U.S. 267, 275 (1974), held that
“Congress intended to exclude from the protections of the Act
all employees properly classified as ‘managerial.’’’ The Court
went on to approve the definition of “managerial employees”
‘as those who’ formulate and effectuate management policies
by expressing and making operative the decisions of their em-
ployer.” 416 U.S. at 288. Accord: NLRB v. Case Corp., 995
F.2d 700, 704 (7th Cir. 1993). Progress Industries, 285 NLRB
694, 741–742 (1987). In NLRB v. Yeshiva University, 444 U.S.
672, 683 (1980), the Court recognized, with approval, that un-
der Board policy “normally an employee may be excluded as
managerial only if he represents management interests by tak-
ing or recommending discretionary actions that effectively
control or implement employer policy” (Citations omitted).
Accord: Ohio River Co., 303 NLRB 696, 716 (1991), enfd. 961
F.2d 1578 (6th Cir. 1992).
The burden of proving that Kim, Nak, Kwang, and Man were
managerial employees at the time they participated in effort to
remove Suh rested upon the Company, as the party claiming
that the Act did not protect them. NLRB v. Kentucky River
Community Care, Inc., 532 U.S. at 711. The Company has not
sustained that burden. The record shows that these four indi-
viduals were engaged in routine warehouse duties involving the
receipt, storage, inspection, and shipment of goods, in accor-
dance with directions from the Company’s management on the
second floor of the warehouse. Kim checked on cargo and
deployed employees in accordance with priorities and direc-
tives from the second floor. The Company has not shown that
any of the 4 occupied executive positions, closely aligned with
management, “who ‘have discretion in the performance of their
jobs independent of [the Company’s] established policy’ Gen-
eral Dynamics Corp., 213 NLRB 851, 857–858 (1974).” Ohio
River Co., 303 NLRB at 716. Accordingly, I find that none of
the four was a managerial employee.
In sum, I find that the Company violated Section 8(a)(1) of
the Act, when it terminated Ui Dal Kim, Nak Hoon Chong,
Kwang Joon Park, Man Ho Kim, and Chul Hyun Chong on
May 24, in retaliation for their participation in concerted activ-
ity protected by Section 7 of the Act.
III. THE ALLEGED FAILURE TO COMPLY WITH THE REQUIREMENTS
SET FORTH IN JOHNNIE’S POULTRY CO.20
A. The Facts
Company warehouse employee Sang Hui Yun testified be-
fore me on January 22 and 24, 2002. Yun first met with Com-
pany attorneys James A. Johnson and Jonathan I. Ahn in con-
nection with this case before Labor Day 2001. Yun had a sec-
ond meeting with the same attorneys at about the same time.
At both meetings, Attorney Johnson and Ahn asked Yun about
this case and the strike. They also discussed the possibility that
he would be a witness in this case.
At the time of the first meeting, Yun was working at the
Company’s Jessup, Maryland facility. Section Manager Nan
Young Kim told Yun to report to the second floor at the Com-
pany’s Columbia warehouse. When Yun reported to the Co-
lumbia warehouse’s second floor, Jae Hae Rhee met him. Jae
told Yun that he would be meeting with the Company’s attor-
neys. Jae did not tell Yun the purpose of this meeting. Nor did
she tell Yun that he was not required to meet with the Com-
pany’s attorneys and that he would not suffer adverse conse-
quences if he declined to meet with them.21
The first meeting with Attorneys Johnson and Ahn lasted
about 1 hour. The attorneys told Yun that they wanted to talk
to him about the strike. He answered their few questions about
it. At the start of the meeting, the attorneys told Yun that it was
up to him whether he would discuss the strike with them.
However, they gave Yun no assurance that nothing would hap-
pen to him if he decided not to talk to them. The attorneys also
asked Yun how he felt about employees’ petition that he had
signed. At the end of the first meeting, Attorneys Johnson and
Ahn thanked Yun.
At the beginning of the second meeting neither Attorney
Johnson nor Attorney Ahn told Yun the purpose of the meeting.
Nor did either attorney tell Yun that he did not have to talk to
them and that if he chose not to, nothing would happen to him.

20 146 NLRB 770 (1964).
21 My findings of fact regarding Jae Hae Rhee’s instructions to Yun
are based on Yun’s uncontradicted testimony. Rhee did not testify
about this incident.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD714
They told Yun something about U.S. law.22 They also asked
him a few questions.
Department Manager Bok Hwan Bae met with Attorneys
Johnson and Ahn three times, once before October 15, 2001,
when Bae was an assistant manager and twice after his promo-
tion to department manager on that date. The Company did not
contend that at the first meeting, Bae was a supervisor, and thus
unprotected by Section 7 of the Act. On that occasion, before
meeting with the 2 attorneys, Bae met with Managing Director
Koh.
Managing Director Koh instructed Bae to meet with Com-
pany Attorneys Johnson and Ahn. Koh told Bae that the attor-
neys wanted to talk to him about the events of May 2000. Koh
did not tell Bae that Bae was not required to talk to the attor-
neys unless he wanted to. Nor did Koh assure Bae that the
Company would not take any action against Bae if he decided
not to talk to the attorneys.23 The Company’s attorneys ques-
tioned Bae about the alleged discriminatees’ position titles and
authority and the situation regarding Manager Suh.
B. Analysis and Conclusions
The Board, in Johnnie’s Poultry Co. 146 NLRB at 77524
held, in pertinent part:
In allowing an employer the privilege of ascertaining the nec-
essary facts from employees in [preparation for litigation], the
Board and courts have established specific safeguards de-
signed to minimize the coercive impact of such employer in-
terrogation. Thus, the employer must communicate to the em-
ployee the purpose of the questioning, assure him that no re-
prisal will take place, and obtain his participation on a volun-

22 Attorneys Johnson and Ahn gave testimony which materially con-
tradicted Yun’s account of his two meetings with them. However,
Attorney Johnson’s testimony shows that he spoke to Yun in English
and Attorney Ahn, who is fluent in Korean, translated for Yun, when
needed a Korean interpreter at the hearing before me. In his testimony
before me, Johnson admitted that he spoke to Yun in English and that
Attorney Ahn apparently translated Johnson’s remarks into Korean. In
his testimony regarding what he said to Yun, Attorney Ahn testified in
English, translating what he had said to Yun. Ahn did not testify in
Korean, notwithstanding an official interpreter was present and avail-
able. Thus, neither Johnson nor Ahn rebutted Yun’s Korean language
testimony regarding what Ahn and Johnson said to him at their two
sessions. I did not have the benefit of Ahn’s Korean version of his
remarks to Yun. This circumstance and my impression that Yun was
trying to provide his best recollection of the two encounters between
him and the Company’s attorneys persuaded me to credit his testimony.
I also noted that at the times of the interviews referred to in the
amendment to the complaint in this case, Attorneys Johnson and Ahn
were not aware of the Board’s policy, as expressed in Johnnie’s Poul-
try, covering employer interviews of employees regarding alleged
unfair labor practices. This fact raises the strong possibility that they
did not satisfy that policy. The final blow to the reliability of Johnson
and Ahn’s testimony was Attorney Johnson’s admission before me that
on the day prior to their testimony before me they discussed the sub-
stance of Ahn’s intended testimony.
23 My findings regarding Koh’s remarks to Bae are based upon Bae’s
uncontradicted testimony. Managing Director Koh did not testify about
this encounter with Bae.
24 Accord: Standard-Coosa-Thatcher Carpet Yarn v. NLRB, 691
F.2d 1133, 1140 fn. 8 (4th Cir. 1982).
tary basis. . . . When an employer transgresses the boundaries
of these safeguards, he loses the benefit of the privilege (Em-
phasis supplied).
In the instant case, there is ample evidence that the Company
has exceeded the boundaries that the Board has established in
Johnnie’s Poultry. I find from Jae Hae Rhee’s testimony, that
at the time she spoke to Yun, she was executive assistant to
Managing Director Jay D. Koh and managed the Company’s
transportation department, including drivers and dispatcher
Perry Campbell. I also find from her testimony that at all times
material to this case, she was married to Company Director
Seung Kwan Rhee, brother of Company President Rhee. The
record also shows that at all times material to this case, Jae He
Rhee was a director of the Company. Jae’s testimony shows
that when she discussed matters related to the transportation
department with Perry Campbell or the drivers, they recognized
that she spoke for the Company and accepted her suggestions.
Given her position in the Company’s second floor manage-
ment group and the importance transportation department em-
ployees attach to her instructions, I find that her remarks to Yun
carried the weight of the Company’s management. Jae Hae
Rhee told Yun that he was about to meet the Company’s attor-
neys. However, she did not inform him of the purpose of the
meeting. Nor did she tell him that he did not have to meet with
counsel and that, if he decided not to meet with them, the Com-
pany would not take any adverse action against him.
I also find that in their first meeting with him, Attorneys
Johnson and Ahn interrogated Yun about the strike, which was
concerted activity protected by Section 7 of the Act. However,
they did so without advising him that he would not suffer repri-
sals from the Company if he chose not to submit to their ques-
tions. In light of Jae Hee Rhee’s omissions and the attorney’s
omissions, I find that the Company’s questioning of Yun on the
first occasion violated Section 8(a)(1) of the Act.
However, the evidence does not support a finding that the
Company violated Section 8(a)(1) of the Act, when the two
attorneys interviewed Yun on the second occasion. The evi-
dence shows that before interviewing Yun the second time, the
attorneys did not tell him the purpose of the meeting. Nor did
they give him any assurance of no reprisal by the Company if
he elected to forego the interview. However, there was no
showing that they asked him any questions regarding Section 7
activity or these proceedings. Thus, there was no coercive
interrogation in this instance.
Finally, when Managing Director Koh instructed employee
Bae to meet with the Company’s attorneys for an interview,
Koh did not advise Bae that his participation in the interview
was voluntary. Nor did Koh assure Bae that if he declined to
be interviewed by the attorneys that the Company would not
take adverse action against Bae. By interviewing Bae in these
circumstances, the Company violated Section 8(a)(1) of the
Act. WXG, 330 NLRB 695, 712–713 (2000).
CONCLUSIONS OF LAW
1. By terminating Ui Dal Kim, Nak Hoon Chong, Kwang
Joon Park, Man Ho Kim, and Chul Hyun Chong because they
concertedly complained regarding the abusive treatment of
employees by a supervisor, which affected their conditions of
RHEE BROS., INC. 715
employment, and because they engaged in a strike in support of
their complaint, the Company has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
2. By issuing a notification letter to its striking employees
telling them that the strike was totally unacceptable, that it
would not compromise with its employees due to their unscru-
pulous use of a strike, that the strikers were in the same situa-
tion as if they had voluntarily quit, that the leaders of the con-
certed activity were required to resign, that the employees who
returned to work by May 26 would incur a 3-day absence and
advising that employees who failed to return to work by May
26 would be considered as having voluntarily quit, the Com-
pany violated Section 8(a)(1) of the Act.
3. By coercively interrogating employees concerning their
own and other employees’ union activities and about the sub-
ject of unfair labor practice proceedings, the Company violated
Section 8(a)(1) 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.
The Respondent having unlawfully discharged employees,
Ui Dal Kim, Nak Hoon Chong, Kwang Joon Park, Man Ho
Kim, and Chul Hyun Chong25 it must offer them reinstatement
and make them whole for any loss of earnings and other bene-
fits, computed on a quarterly basis from date of discharge to
date of proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). I shall also recommend that
the Company be required to remove from its files any refer-
ences to the unlawful terminations of the five employees named
above, and notify each of these employees that it has done so
and that it will not use the unlawful terminations against them
in any way.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended26
ORDER
The Respondent, Rhee Bros. Inc., Columbia, Maryland, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating or otherwise penalizing our employees be-
cause they engage in concerted activity, including a strike, for

25 I have found that the Company did not reinstate Chul Hyun Chong
to his former position at the Columbia warehouse, that the Company
rejected him for a wage increase following his reemployment at the
Company’s Jessup facility, and did not award backpay to him for the
period from May 25 until his reemployment on June 18, 2001. Accord-
ingly, I find that the Company has not remedied Chong’s unlawful
termination.
26 If no exceptions are filed 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 all objections to them shall be deemed
waived for all purposes.
their mutual aid or protection with respect to wages, hours, or
other terms and conditions of employment.
(b) Threatening our employees with economic reprisals in-
cluding refusal to deal with employee grievances, loss of work-
ing time, and termination of employees because they engage in
concerted activity, including a strike, for their mutual aid or
protection with respect to wages, hours, or other terms and
conditions of employment.
(c) Coercively interrogating employees concerning their own
and other employees’ union activities and about the subject of
unfair labor practice proceedings.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer employ-
ees Ui Dal Kim, Nak Hoon Chong, Kwang Joon Park, Man Ho
Kim, and Chul Hyun Chong full reinstatement 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.
(b) Make employees Ui Dal Kim, Nak Hoon Chong, Kwang
Joon Park, Man Ho Kim, and Chul Hyun Chong whole for any
loss of earnings and other benefits suffered as a result of their
unlawful terminations, in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful terminations, and within 3
days thereafter notify the five employees in writing that this has
been done and that the terminations will not be used against
them in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Columbia, Maryland, copies of the attached notice
marked “Appendix.”27 Copies of the notice, on forms provided
by the Regional Director for Region 5 after being signed by the
Respondent’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 are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall

27 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD716
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since May 24, 2000.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.