Saigon Grill Restaurant

National Labor Relations Board - Board Decisions

Mar 9, 2009

353 N.L.R.B. 110 (N.L.R.B. 2009)

353 NLRB No. 110
Saigon Gourmet Restaurant, Inc. and Saigon Spice,
Inc., a Single Employer d/b/a Saigon Grill Res-
taurant and 318 Restaurant Workers Union.
Case 2–CA–38252
March 9, 2009
DECISION, ORDER, AND ORDER REMANDING
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On February 14, 2008, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions with attached exhibits. The
General Counsel filed an answering brief in opposition to
the Respondent’s exceptions. The General Counsel also
filed exceptions and a supporting brief.
The National Labor Relations Board1 has considered
the judge’s decision and the record in light of the excep-
tions2 and briefs and has decided to affirm the judge’s
rulings, findings,3 and conclusions only to the extent
consistent with this Decision, Order, and Order Remand-
ing, to adopt the recommended Order as modified and set
forth in full below,4 and to remand this proceeding for
further consideration as discussed herein.
The General Counsel’s complaint alleged, inter alia,
that the Respondent violated Section 8(a)(1) by interro-
gating employees about their union and/or protected con-
certed activities, by promising to raise employees’ wages
if they abandoned their union and/or protected concerted

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 The General Counsel asks that we strike the Respondent’s excep-
tions because they fail to conform to Sec. 102.46 of the Board’s Rules
and Regulations. We decline the request, finding that the Respondent’s
exceptions sufficiently comply with the requirements of that section.
The General Counsel also asks that we strike Exhs. A and B to the
Respondent’s exceptions because those exhibits are not part of the
record. We have disregarded those exhibits.
3 For the reasons stated by the judge, we adopt his finding that Sai-
gon Gourmet Restaurant, Inc. and Saigon Spice, Inc. constitute a single
employer. For the reasons stated by the judge as supplemented herein,
we affirm his findings that the Respondent violated Sec. 8(a)(1) of the
Act by discharging its delivery employees and by videotaping their
subsequent protected picketing.
4 We will modify the judge’s recommended Order to conform to the
Board’s standard remedial language for respondent employers and in
accordance with Indian Hills Care Center, 321 NLRB 144 (1996). We
will also modify the date in the contingent notice-mailing provision in
accordance with Excel Container, Inc., 325 NLRB 17 (1997), in light
of our finding that the Respondent, on March 2, 2007, unlawfully
promised employees a wage increase conditioned on their cessation of
protected concerted activities.
activities, and by threatening to discharge employees in
retaliation for their union and/or protected concerted ac-
tivities. Each of these allegations clearly posits conduct
targeting either union or protected concerted activity, or
both.
The judge decided otherwise. Despite the plain word-
ing of these allegations, the judge deemed the complaint
to allege interrogations, promises, and threats directed
solely at employees’ union activities. Upon finding that
the Respondent was unaware of any union activities, the
judge dismissed these allegations. There is no dispute,
however, that the Respondent knew that employees were
preparing to file a wage and hour lawsuit, clearly pro-
tected concerted activity, so the judge’s disposition of
these allegations cannot stand. If we could, we would
decide these allegations ourselves. But with one excep-
tion, discussed below, we are unable to do so: the rele-
vant testimony is in conflict, and the judge failed to make
credibility determinations necessary to resolve the com-
plaint’s actual allegations. Thus, as more fully explained
below, we must, in part, remand this case to the judge.
I. BACKGROUND
Saigon Gourmet Restaurant, Inc. operates the Saigon
Grill Restaurant at 620 Amsterdam Avenue in New
York. Saigon Spice, Inc. operates a second Saigon Grill
Restaurant at 93 University Place, also in New York.
Simon Nget owns and manages both restaurants. Nget’s
wife is Michelle Nget.
Each restaurant employed delivery workers who used
their own bicycles to deliver food to customers. Around
the end of February or the beginning of March 2007,5 a
number of the delivery workers signed authorizations to
participate in a wage and hour lawsuit against the Re-
spondent. On March 2, two employees approached Nget
and asked or demanded that delivery workers’ pay be
increased, or else the workers would sue. That night,
Nget convened a meeting of delivery employees working
out of the Amsterdam Avenue location. He offered them
an additional $5 per shift if they abandoned their wage
and hour claims. The employees declined to do so. In
his testimony, Nget characterized the delivery workers’
concerted action as “theft” and “extortion.” By March 5,
the Respondent had discontinued delivery service at both
locations and discharged all of its delivery workers.
Soon thereafter, the discharged employees began picket-
ing outside the restaurants. The Respondent repeatedly
videotaped the pickets.

5 All dates hereinafter are 2007, unless otherwise stated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
II. ALLEGED PROMISES, THREATS, AND INTERROGATIONS
A. Coercive Promises
The complaint alleges that on March 2, at the Amster-
dam Avenue location, the Respondent violated Section
8(a)(1) by promising to raise employees’ wages if they
agreed to cease engaging in union and/or protected con-
certed activity. In support, the General Counsel relies in
part on the testimony of deliverymen Ke Yu Guan and Li
Bing Xing. They testified that at the March 2 meeting,
Nget said that he knew the delivery workers were plan-
ning to sue him. Then Nget held up two pieces of pa-
per—one in English and one in Chinese—and said that if
the workers signed those papers, everything that hap-
pened before would be over with and Nget would raise
their salary effective the next day.6 For his part, Nget
denied that he held up two pieces of paper and asked the
workers to sign them, and he denied that he ever prom-
ised employees more money in exchange for those signa-
tures. The judge made no credibility findings to resolve
this testimonial conflict.
However, in response to a subpoena, the Respondent
admitted that on March 2 it offered the employees a raise
if they abandoned their wage and hour claims. The only
defense the Respondent raises to the complaint allegation
is that its offer did not mention the word “union” and
therefore was not an effort to cause the employees to
abandon their union activities. However, as stated
above, the complaint alleges that the Respondent offered
the employees a raise in order to cause them to abandon
union and/or protected concerted activity. Concertedly
asserting a claim for unpaid overtime constitutes pro-
tected activity.7 As the Respondent has failed to raise
any argument as to why its promise of benefits condi-
tioned on cessation of protected concerted activity was
lawful,8 we find the 8(a)(1) coercive promise violation as
alleged.9

6 There is no record evidence definitively establishing what those
two papers said. However, in a memorandum decision in the delivery
workers’ action against the Respondents and the Ngets for violations of
the Fair Labor Standards Act and state wage and hour laws, Magistrate
Judge Dolinger reasonably inferred that the papers were “a waiver of
any claims against the defendants.” Ke v. Saigon Grill, ___ F.Supp.2d
___, No. 07 Civ. 2329(MHD), 2008 WL 5337230, slip op. at 7
(S.D.N.Y. Oct. 21, 2008).
7 U Ocean Palace Pavilion, Inc., 345 NLRB 1162, 1170 (2005) (fil-
ing a lawsuit for failure to pay overtime protected concerted activity).
8 The Respondent does not claim that its statement was made in the
course of settlement discussions or was privileged as settlement discus-
sion. Id. at 1162 fn. 2. Nor does the evidence suggest that interpreta-
tion.
9 We find it unnecessary to pass on whether the Respondent also
unlawfully promised a wage increase in exchange for cessation of
protected activity on March 3 at its University Place restaurant, as the
additional violation would not affect the remedy.
B. Coercive Threat
The complaint alleges that on March 2, at the Amster-
dam Avenue location, the Respondent threatened to close
the delivery department and discharge all of the delivery
workers in retaliation for their union and/or protected
concerted activities. In support, the General Counsel
again relies on the testimony of Ke Yu Guan and Li Bing
Xing. Ke testified that at the March 2 meeting discussed
above, Nget’s wife Michelle, in Nget’s presence, told the
delivery workers: “If all you guys refuse to sign, then
there is no more need to be say [sic]. Then tomorrow do
not show up for work. Just take your bike and all your
personal belongings in Saigon and go.” Li testified that
Michelle Nget said: “If you guys not going to sign this
piece of paper, then starting tomorrow we’re not going to
do any deliveries anymore. Take all your bicycles and
belongings and go.” Contradicting this testimony, how-
ever, Nget denied that his wife said anything at the
March 2 meeting.
Because the judge made no credibility findings resolv-
ing the testimonial conflict, we will remand this allega-
tion to the judge.
C. Coercive Interrogations
The complaint alleges that on March 2, at the Amster-
dam Avenue location, the Respondent interrogated its
employees about their union and protected concerted
activities.10 In support, the General Counsel relies on the
testimony of Ke Yu Guan. Ke testified that around 5
p.m. on March 2, approximately 10 delivery workers
were congregated in front of the Amsterdam Avenue
restaurant signing a document authorizing an attorney to
file a wage and hour lawsuit on their behalf. Ke testified
that while they were doing so, Simon and Michelle Nget
drove up, parked, and entered the restaurant; and Ke was
“pretty sure” that Simon saw them. Ke also testified that,
later that evening but before the meeting, he overheard
Nget talking to Michelle and a few others, and that Nget
said that “he saw the group of us signing a piece of paper
[and he] believed we are about to sue him.” Ke testified
that at the March 2 meeting, Nget asked the assembled
delivery workers: “In front of the store today did you
sign a piece of something? Can you take it out?”
Nget did not specifically deny telling his wife that he
saw the delivery workers signing a piece of paper, and he
did not specifically deny asking the workers if they
signed something “in front of the store today.” However,
he denied seeing anybody in front of the restaurant when

10 The General Counsel neglected to allege this violation disjunc-
tively as well as conjunctively: par. 5(a) of the complaint says “and,”
not “and/or.” In light of the complaint’s otherwise uniform “and/or”
wording, we deem this an inadvertent oversight.
SAIGON GRILL RESTAURANT 3
he and his wife arrived that day. This testimony effec-
tively contradicts Ke’s testimony, which is predicated on
Nget having seen the workers in front of the restaurant.
Once again, the judge made no credibility findings. We
will remand this allegation for him to do so.
We also remand a second interrogation allegation. The
complaint alleges that on March 3, at the University
Place location, the Respondent interrogated employees
about their protected concerted and/or union activities.
In support, the General Counsel relies on employee Qi
Hua Lian’s testimony that Nget asked him, “If others
boycott in front of the restaurant are you going to join?”
But Nget testified that no such conversation took place,
and the judge did not resolve the testimonial conflict.
III. THE 8(a)(1) MASS DISCHARGE
The judge found that the Respondent violated Section
8(a)(1) by discharging its delivery workers because they
engaged in conduct protected by Section 7 of the Act.
For the following reasons, we agree.
In its exceptions, the Respondent admits that the deliv-
ery workers were discharged, but disputes that the Gen-
eral Counsel proved that the discharges were motivated
by the workers’ protected activity. An 8(a)(1) allegation
where motive is at issue is analyzed under the Board’s
Wright Line11 test. Under Wright Line, supra, the Gen-
eral Counsel must first show, by a preponderance of the
evidence, that protected conduct was a motivating factor
in the employer’s adverse action. Once the General
Counsel makes that showing by demonstrating protected
activity, employer knowledge of that activity, and ani-
mus against protected activity, the burden of persuasion
shifts to the employer to show that it would have taken
the same adverse action even in the absence of the pro-
tected activity.12
It is undisputed that the Respondent’s employees en-
gaged in protected concerted activity and that the Re-
spondent was aware of that activity. Again, the Respon-
dent admitted in its response to the General Counsel’s
subpoena that “[t]he employer made an offer of addi-

11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
12 United Rentals, 350 NLRB 951 (2007) (citing Donaldson Bros.
Ready Mix, Inc., 341 NLRB 958, 961 (2004)). Member Schaumber
notes that the Board and the circuit courts of appeal have variously
described the evidentiary elements of the General Counsel’s initial
burden of proof under Wright Line, sometimes adding as an independ-
ent fourth element the necessity for there to be a causal nexus between
the union animus and the adverse employment action. See, e.g., Ameri-
can Gardens Management Co., 338 NLRB 644, 645 (2002). As stated
in Shearer’s Foods, Inc., 340 NLRB 1093, 1094 fn. 4 (2003), since
Wright Line is a causation standard, Member Schaumber agrees with
this addition to the formulation. In this case, he finds a causal connec-
tion between the Respondent’s Sec. 7 animus and the discharges.
tional compensation if the employees withdrew their
demands of over $2 million, claiming overtime.” Thus,
the Respondent admits employee activity that was con-
certed (“employees”) and protected (“demands of over
$2 million, claiming overtime”); and Nget’s admitted
offer of a wage increase in exchange for withdrawal of
the overtime claim shows that Nget knew of the employ-
ees’ concerted demand. In addition, the Respondent does
not except to the judge’s finding that it “admitted that on
[March] 2, 2007, two employees approached Nget and
requested/demanded that the pay of the delivery employ-
ees be increased and that unless this was done he would
be sued.” The Respondent’s animus against the employ-
ees’ protected activity is shown by Nget’s unlawful
promise of a wage increase to coerce cessation of that
activity and his characterization of the employees’ pro-
tected activity as “theft” and “extortion.” The dramatic
timing of the mass discharge hard on the heels of Nget’s
learning of the delivery workers’ overtime demand also
strongly supports an inference of animus and discrimina-
tory motivation.13 We thus find that the General Counsel
met his initial burden under Wright Line.
The facts discussed in the previous paragraph concern
the Section 7 activities of the delivery workers at the
Amsterdam Avenue location. The Respondent asserts a
failure of proof on the General Counsel’s part with re-
spect to its discharge of the University Place delivery
workers because there is no evidence that those employ-
ees authorized a wage and hour lawsuit or engaged in
other Section 7 activity. As the Respondent discharged
its delivery employees at both locations en masse, how-
ever, the General Counsel was not required to show a
correlation between each employee’s protected activity
and his or her discharge. Rather, his burden was to es-
tablish that the mass discharge was ordered in retaliation
for the protected activity of some. ACTIV Industries,
277 NLRB 356, 356 fn. 3 (1985). As explained above,
the General Counsel met that burden. Thus, the Respon-
dent’s assertion is without merit.
As for the Respondent’s Wright Line rebuttal, there
was none. The Respondent does assert that the delivery
service was unprofitable, but at most claims that reinstat-
ing its delivery service would pose an undue financial
burden. That claim goes to the remedy, not to the merits
of the Wright Line analysis.14 Accordingly, we affirm

13 See, e.g., Case Farms of North Carolina, 353 NLRB No. 26, slip
op. at 4 (2008).
14 As the judge stated in his decision and the General Counsel ac-
knowledges in his answering brief, the Respondent is entitled to an
opportunity to establish at compliance that restoring its delivery service
would be unduly burdensome. We Can, Inc., 315 NLRB 170, 174–177
(1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
the judge’s finding that the Respondent’s discharge of its
delivery employees violated Section 8(a)(1).15
IV. THE 8(a)(1) VIDEOTAPING OF
PROTECTED ACTIVITY
Absent proper justification, photographing or video-
taping employees as they engage in protected concerted
activity violates Section 8(a)(1).16 The Respondent does
not dispute that it videotaped its discharged delivery
workers as they picketed in front of the restaurants. In its
exceptions, the Respondent claims that its videotaping
was justified because the pickets “threatened customers,
called them names, [and] threatened Simon Nget’s fam-
ily.” But the Respondent introduced no evidence to sup-
port these claims. The Respondent asserts that it was
hamstrung in presenting a justification defense because
the videotapes that would have proved its defense were
under the General Counsel’s control. But the General
Counsel counters that the Respondent never asked for the
tapes to be returned, on or off the record, before or dur-
ing the hearing; and the Respondent makes no reply.
Thus, we affirm the judge’s finding that by its videotap-
ing the Respondent violated Section 8(a)(1).
ORDER
The National Labor Relations Board orders that the
Respondents, Saigon Gourmet Restaurant, Inc. and Sai-
gon Spice, Inc., a single employer, New York, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because of their protected
concerted activity of pursuing a wage and hour lawsuit
against their employer.
(b) Offering employees a wage increase if they cease
their protected concerted activity of pursuing wage and
hour claims against their employer.
(c) Videotaping employees engaged in peaceful picket-
ing.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
the delivery employees 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.

15 The Respondent suggests in its exceptions that backpay for the
discriminatees may be affected by their immigration status. The Re-
spondent may raise that issue at compliance. Case Farms of North
Carolina, supra, slip op. at 7.
16 Robert Orr–Sysco Food Services, 334 NLRB 977 (2001).
(b) Make the delivery employees whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
the delivery employees, and within 3 days thereafter no-
tify them in writing that this has been done and that the
discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in New York, New York, copies of the at-
tached notice marked “Appendix.”17 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 2, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed a facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since March 2, 2007.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the portion of Case 2–
CA–38252 alleging that the Respondent violated Section
8(a)(1) by interrogating employees about their union
and/or protected concerted activities, and by threatening
to discharge employees in retaliation for their union
and/or protected concerted activities, is hereby severed
and remanded to Administrative Law Judge Raymond P.

17 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.”
SAIGON GRILL RESTAURANT 5
Green for further consideration, including making neces-
sary credibility resolutions as discussed above.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision setting
forth credibility resolutions, findings of fact, conclusions
of law, and a recommended Order, as appropriate on
remand. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge our employees because of their
protected concerted activity of pursuing a wage and hour
lawsuit against us.
WE WILL NOT offer our employees a wage increase if
they cease their protected concerted activity of pursuing
wage and hour claims against us.
WE WILL NOT videotape our employees engaged in
peaceful picketing.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act, which are set
forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer our delivery employees full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
WE WILL make our delivery employees whole for any
loss of earnings and other benefits resulting from their
discharge, less any net interim earnings, 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 discharges of our delivery employees, and WE WILL,
within 3 days thereafter, notify them in writing that this
has been done and that the discharges will not be used
against them in any way.
SAIGON GOURMET RESTAURANT, INC. AND
SAIGON SPICE, INC., A SINGLE EMPLOYER D/B/A
SAIGON GRILL RESTAURANT
Jaime Rucker, Esq., for the General Counsel.
S. Michael Weisberg, Esq., for the Respondent.
Yvonne Brown, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in New York on December 3, 5, and 6, 2007. The charge
and the amended charge were filed on May 14 and July 30,
2007. A complaint was issued on September 28, 2007, and an
amended complaint was issued on November 8, 2007. The
amended complaint alleged as follows:
1. That Saigon Gourmet Restaurant, Inc., and Saigon Spice
Inc., constitute a single employer within the meaning of the
Act.
2. That on or about March 2, 2007, the Respondent by
Simon Nget, its owner, (a) interrogated employees about their
union and protected concerted activities, (b) promised to raise
wages if employees agreed to cease engaging in union activi-
ties, and (c) threatened to close the delivery department and
discharge those employees in retaliation for their union activi-
ties.
3. That on or about March 3, 2007, the Respondent by
Simon Nget, (a) promised to raise employee wages, (b) told
employees that their activities were futile, and (c) interrogated
employees about their union and protected concerted activities.
4. That on or about March 3, 2007, the Respondent dis-
charged all of its delivery employees employed at 620 Amster-
dam Avenue, because they signed a document authorizing a
wage and hour lawsuit. It is further alleged that Respondent
ceased operating its delivery service at this location on this
date.
5. That on or about March 5, 2007, the Respondent dis-
charged all of its delivery employees employed at 93 University
Place, because they either signed a document authorizing a
wage and hour lawsuit or because they engaged in other con-
certed activity or because they engaged in union activity. It is
further alleged that Respondent ceased operating its delivery
service at this location on this date.
6. That on various dates after March 30, 2007, the Respon-
dent by Simon Nget, Leanna Nget, a manager, and by persons
named Timmy and Kenny, engaged in video surveillance of the
picketing activity of its employees.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following1

1 I hereby grant the General Counsel’s unopposed motion to correct
the record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
I. JURISDICTION
It is undisputed that the two restaurants in question meet the
Board’s retail standards for asserting jurisdiction. I therefore
conclude that the Company is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. I also conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The two restaurants in question are solely owned by Simin
Nget. He is also the sole officer and shareholder. One of the
restaurants is located at 620 Amsterdam Avenue and the other
is located at 93 University Place. Both are in Manhattan. Nget
is the person who does the hiring and firing and he sets wages
and other employment policies at both locations. The evidence
also shows that there is some degree of interchange between the
two locations, with some employees working at both.
Although each restaurant is a separate corporation, the evi-
dence shows that there is common ownership, common man-
agement, and common control of labor relations. As such, I
conclude that for purposes of the National Labor Relations Act
the two constitute a single employer. Lihli Fashions v. NLRB,
151 LRRM 2943 (2d Cir. 1996), and Flat Dog Productions,
Inc., 347 NLRB 1180 (2006).
The restaurant at Amsterdam Avenue employed about 22 de-
livery persons in addition to a larger complement of kitchen
and server employees. The restaurant at University Place em-
ployed about 6 delivery people. From the inception of these
operations, the Employer has provided sit-down, take-out, and
food delivery services. For the most part, the delivery people
utilize their own bicycles and work from about noon to around
9 or 10 p.m. Their income normally is derived from tips, but
they are also paid a small sum for each shift. I am not here to
decide or discuss whether these employees received the appro-
priate legal minimum for tipped employees. Nevertheless,
there is no question that employees talked about this subject
and were not happy with their incomes.
There was some evidence that this Union had undertaken or-
ganizational activities among other Chinese or Asian restau-
rants in Manhattan and that there was some coverage of this in
Chinese language papers. But to say, as the General Counsel
argues, that Nget was therefore aware of any union organiza-
tional efforts at his restaurant is speculative at best.
On February 28, 2007, a number of the employees signed
union authorization cards. At the same time they also signed
authorizations to participate in a wage and hour lawsuit against
Saigon Grill. There is no evidence to show that the Employer,
before its decision to discharge the delivery employees, became
aware of their union support. But the wage and hour matter
was an entirely different story.
It is essentially admitted that on May 2, 2007, two employ-
ees approached Nget and requested/demanded that the pay of
the delivery employees be increased and that unless this was
done he would be sued. It also is clear that Nget understood
that he was being threatened with a lawsuit concerning the
alleged failure of his restaurants to meet the minimum wage
requirements. He thereupon decided to call a meeting with the
delivery employees who worked at the Amsterdam location and
tried to dissuade them from filing a lawsuit. In substance, he
offered them an extra $5 per shift. This offer was rejected.
Although the Respondent asserted (without really offering
any proof), that the delivery service was not profitable and
would have been terminated in any event, the testimony of Nget
establishes that had the employees accepted the extra $5 per
shift and dropped the idea of suing him about wages, he would
have continued the delivery service. In this regard, I also note
that the delivery operation has always been an integral part of
Nget’s business from the opening of his restaurants.
In any event, after the conclusion of the meeting, Nget de-
cided to terminate the delivery service at both restaurants and
by March 4 effectuated that decision and notified all of the
delivery people that their services were no longer needed.
Following the cessation of the delivery service, the employ-
ees, in conjunction with the Union set up a picket line. It is
admitted that during the course of the picketing, Nget, on vari-
ous occasions, had the picketers videotaped. While asserting
that this was done in relation to alleged picket line misconduct,
the Respondent failed to adequately offer any proof to support
that assertion.
III. ANALYSIS
Although the General Counsel argues that one of the motiva-
tions for the discharge of the delivery drivers was because they
signed union authorization cards or expressed their support for
the Union, there is no objective evidence that convinces me that
(a) the Respondent was aware of this activity or (b) that his
decision to terminate the delivery service was motivated by
union activity. Further, I do not conclude that the Respondent’s
promise of $5 extra per shift was related to his fear that the
employees were seeking unionization. Nor do I conclude that
the Respondent coercively interrogated employees about their
union membership or activities or that he threatened employees
with plant closure because of their union membership or activi-
ties.
Nevertheless, Section 7 of the National Labor Relations Act,
not only protects union activity it also protects concerted activ-
ity for “mutual aid and protection.” And the case law, estab-
lishes that the actions of employees to prepare for the filing of a
lawsuit under the Fair Labor Standards Act, is concerted activ-
ity as that term is defined in Section 7. Eastex, Inc. v. NLRB,
437 U.S. 556, 563–578 fn. 15 (1978); Igramo Enterprise Inc.,
351 NLRB No. 99 (2008); U Ocean Palace Pavilion, Inc., 345
NLRB 1162 (2005); and Kysor Industrial Corp., 309 NLRB
237 (1992). The Supreme Court made it clear in Eastex that
pursuant to Section 7 of the Act, employees are protected from
discharge or other retaliation for their concerted actions in seek-
ing to improve their working conditions through “resort to ad-
ministrative and judicial forums” and through “appeals to legis-
lators to protect their interests as employees.”
Accordingly, as it is my conclusion that the Respondent de-
cided to discharge all of its delivery employees because he
believed that at least some of them would initiate a lawsuit
claiming wages under the Fair Labor Standards Act, I find that
these discharges impinged on the protection afforded to em-
SAIGON GRILL RESTAURANT 7
ployees under Section 7 of the Act and therefore violated Sec-
tion 8(a)(1) of the Act.2
I also conclude that the videotaping of employees constituted
a violation of Section 8(a)(1) of the Act. Thus, in F. W. Wool-
worth Co., 310 NLRB 1197 (1993), in finding a violation of
Section 8(a)(1), the Board, with Member Oviatt dissenting,
stated:
As the judge recognized, the Board has long held that absent
proper justification, the photographing of employees engaged
in protected concerted activities violates the Act because it has
a tendency to intimidate. Waco, Inc., 273 NLRB 746, 747
(1984). . . . Here the record provides no basis for the Respon-
dent reasonably to have anticipated misconduct by those
handbilling, and there is no evidence that misconduct did, in
fact, occur. Unlike our dissenting colleague, we adhere to the
principle that photographing in the mere belief that “some-
thing ‘might’ happen does not justify Respondent’s conduct
when balanced against the tendency of that conduct to inter-
fere with employees’ right to engage in concerted activity.”
CONCLUSIONS OF LAW
1. By terminating its delivery service and discharging all of
its delivery employees, because the Respondent believed that
these employees intended to file a lawsuit under the Fair Labor
Standards Act, the Respondent has violated Section 8(a)(1) of
the Act.
2. By videotaping employees who engaged in peaceful pick-
eting activity, the Respondent has violated Section 8(a)(1) of
the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
4. The Respondent has not violated the Act in any other
manner.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that they must be ordered to cease

2 In my opinion, the termination of the delivery service and the con-
sequent discharge of the delivery employees is not encompassed by
Textile Workers Union of America v. Darlington Mfg. Co., 380 U.S.
263 (1965), or its progeny. Darlington established the proposition that
an Employer can close its entire business without violating the Act
even if motivated by unlawful reasons. The court also stated that an
employer could be held liable in a situation where it partially closed its
operations if that action chilled unionization elsewhere. For one thing,
I don’t think that the facts in this case amount to a partial closing as that
term has been used in Darlington or other cases where an employer
permanently closed a plant or terminated a separate business operation.
For another, since the delivery employees worked in close proximity to
the restaurant’s other employees, their discharge for concerted activi-
ties, would necessarily deter those other employees from seeking re-
dress for any other violations of minimum wage or other labor laws.
Cub Branch Mining, 300 NLRB 57, 59 fn. 20 (1990). See also George
Lithograph Co., 204 NLRB 431 (1973), where the Board concluded
that the closing of a mailing division for antiunion reasons, would
necessarily act as a deterrent to the exercise of Section 7 rights by other
employees who worked in the same building and who operated under
the same immediate management.
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The General Counsel seeks inter alia, an Order requiring the
Respondent to reinstate all of the delivery employees who were
discharged on March 3 and 4, 2007. This would require the
Respondent to reinstate its delivery service operations.
In We Can, Inc., 315 NLRB 179 (1994), the Board stated:
When an employer has curtailed operations and discharged
employees for discriminatory reasons, the Board’s usual prac-
tice is to order a return to the status quo ante—that is, to re-
quire the employer to reinstate the employees and restore the
operations as they existed before the discrimination—unless
the employer can show that such a remedy would be unduly
burdensome.3
As there is no capital equipment or other investment that
would be required to restore the delivery service, it could
hardly be said that a restoration remedy would be unduly bur-
densome.
It may be that a restored delivery service might not be profit-
able if the employees are reinstated under terms that are in
compliance with various Federal and State employment laws.4
But as of now, this is purely speculative and nothing in this
recommended Order would compel the Employer to continue to
operate this service on a loss basis. If the future operation of a
delivery service under these new conditions is ultimately not
feasible, then the Employer may discontinue it so long as its
decision is not based on illegal considerations.
In We Can, Inc., supra, the Board, although refusing to re-
open the record, did amend the administrative law judge’s rec-
ommended Order to provide that restoration and reinstatement
would be required “unless the Respondent can establish at
compliance—on the basis of evidence that was not available at
the time of the unfair labor practice hearing—that those reme-
dies are inappropriate.” See also Ferragon Corp., 318 NLRB
359 (1995).
In view of the above, I shall recommend that the Respon-
dent, having discriminatorily discharged employees, must offer
them reinstatement and make them whole for any loss of earn-
ings and other benefits, computed on a quarterly basis from the
dates of discharge to the date of proper offers of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (2987). I shall
further recommend that the delivery service be restored. Al-
though I can see no present basis for failing to restore the deliv-
ery service operation, I shall recommend that the Respondent
be allowed at the compliance stage of the proceedings, to try to
establish, based on new evidence that the restoration of this
operation would not be feasible.
As the Respondent’s employees are largely Chinese speak-
ing, it is recommended that the notices be in Chinese and Eng-
lish.

3 See also Ferragon Corp., 318 NLRB 359 (1995).
4 Among the laws applicable to employees are those relating to (1)
minimum wages and overtime, (2) workers compensation; (3) Federal
and State income tax, and (4) social security.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Saigon Grill Restaurant, Inc., and Saigon
Spice Inc., d/b/a Saigon Grill Restaurant, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Discharging employees because of their concerted activ-
ity of indicating their intention to file a lawsuit under the Fair
Labor Standards Act.
(b) Videotaping employees who are engaged in peaceful
picketing.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the rights guaranteed to them by Sec-
tion 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 the de-
livery employees 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 privi-
leges previously enjoyed and make them whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them in the manner set forth in the remedy sec-
tion of this decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful actions against the deliv-
ery employees and within 3 days thereafter, notify them in writ-
ing, that this has been done and that the discharges will not be
used against them in any way.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its fa-
cilities in New York, New York, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized 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

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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, or sold the business or
the facilities involved herein, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respon-
dents at any time since March 3, 2007.
(e) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. February 11, 2008
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT discharge our delivery employees because of
their concerted actions in seeking to enforce by way of a law-
suit, the Fair Labor Standards Act.
WE WILL NOT videotape employees who are engaged in
peaceful picketing.
WE WILL NOT in any like or related manner interfering with,
restraining, or coercing employees in the rights guaranteed to
them by Section 7 of the Act.
WE WILL restore the delivery operation and reinstate the de-
livery employees who have been found to have been illegally
discharged, immediate and 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, and make them whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them.
WE WILL make whole the delivery employees, for the loss of
earnings they suffered as a result of the discrimination against
them.
WE WILL remove from our files any reference to the unlawful
discharges and notify the employees in question, in writing, that
this has been done and that these actions will not be used
against them in any way.
SAIGON GRILL RESTAURANT 9
SAIGON GOURMET RESTAURANT, INC. AND SAIGON
SPICE, INC., D/B/A SAIGON GRILL RESTAURANT