The Mandarin

National Labor Relations Board - Board Decisions

Mar 21, 1977

228 N.L.R.B. 930 (N.L.R.B. 1977)

930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M Restaurants , Incorporated, d/b/a The Mandarin
and San Francisco Local Joint Executive Board of
Culinary Workers, Bartenders, Hotel, Motel and
Club Service Workers, Hotel and Restaurant
Employees and Bartenders International Union.
Case 20-CA-9552
March 21, 1977
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On October 31, 1975, the National Labor Relations
Board issued its Decision and Order in this case,'
modifying the Administrative Law Judge's recom-
mended Order in certain respects, but adopting his
recommendation that M Restaurants, Incorporated,
d/b/a The Mandarin, herein called Respondent,
make employee Billie Meng whole for any loss of
earnings suffered by reason of his discharge in
violation of Section 8(a)(3) and (1) of the Act, and
offer him immediate and full reinstatement to his
former position or, if that position no longer existed,
to a substantially equivalent one.
On June 4, 1976, after having failed to reach
agreement with Respondent on Meng's reinstate-
ment, the Regional Director for Region 20 issued a
notice of hearing alleging that Respondent had not
made a valid offer of reinstatement to Meng, and that
the issue to be resolved by the hearing was:
Whether or not the letter discriminatee Meng
wrote and, on March 29, 1975, distributed to
Respondent's employees, contain [sic I statements
making him unsuitable for reinstatement and
therefore ending his backpay period.
Thereafter, by dates of August 20 and September 1
and 2, 1976, respectively, Respondent, Charging
Party San Francisco Local Joint Executive Board of
Culinary Workers, Bartenders, Hotel, Motel and
Club Service Workers, Hotel and Restaurant Em-
ployees and Bartenders International Union, herein
called the Union, and counsel for General Counsel
executed a motion to transfer proceedings to the
Board and a stipulation of facts, waived a hearing
before an Administrative Law Judge and the issuance
of an Administrative Law Judge's decision, and
submitted the case to the National Labor Relations
Board for findings of fact, conclusions of law, and an
221 NLRB264
x The Administrative Law Judge found that Respondent's "suspension"
of Meng was, in fact, a discharge.
228 NLRB No. 110
Order based on a record consisting of the stipulation
of facts and the exhibits attached thereto.
On November 5, 1976, the Board granted the
parties' motion, approved the stipulation of facts,
ordered the proceedings be transferred to the Board,
and granted permission and time for the filing of
briefs. Thereafter, the General Counsel and Respon-
dent filed supplemental briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the basis of the stipulation of facts, the briefs,
and the entire record in this proceeding, the Board
makes the following findings.
Facts
On March 10, 1975, Administrative Law Judge
Jerrold H . Shapiro issued a Decision in this proceed-
ing finding, inter a1ia, that Respondent had violated
Section 8(a)(3) of the Act on September 11, 1974, by
discharging Billie Meng2 because of his activities on
behalf of the Union and had independently violated
Section,8(a)(1) of the Act since the discharge was also
in retaliation for certain protected concerted activi-
ties undertaken by Meng. The Administrative Law
Judge's Decision on the issue of Meng's discharge
was ultimately affirmed by the Board, as noted
above, but the incidents which form the basis for the
instant proceeding were not then before the Board.
Specifically, on March 29, 1975, some 2- 1/2 weeks
after the Administrative Law Judge 's Decision here-
in, at approximately 4 p.m., discriminatee Meng
distributed to each of Respondent 's employees, on
Respondent's premises, a single sheet of paper on
both sides of which was written a message in Chinese
characters . Discriminatee Meng admits that he com-
posed and distributed the letter.
After reading that letter, Linsan Chien , Respon-
dent's restaurant manager and corporate secretary,
"discharged" Meng on May 12, 1975.3
The letter, as translated by Chien, reads as follows:
Dear Brethren and Sisters:
Last week the court announced its verdict (see
March 21st S. F. Chronicle , page 2). Its main
points are as follows:
1. Illegal firing of Billy Meng
2. The salary raise of those who work in
the kitchen and in the front was aimed at
sabotaging the union movement and was no
mere coincidence.
3 As noted , Respondent's earlier discharge of Meng had been termed a
"suspension" by Respondent but the Administrative Law Judge found the
earlier action was, in fact, a discharge.
THE MANDARIN 931
3. Illegally hinting to the employees that
the union movement is under the surveil-
lance (of the Management). Orders the
restaurant to "welcome back" Billy Meng
immediately and compensate for all his
losses.
"Old-man Chien" of the Mandarin is like a big
,fish swimming in a small pond:" "pompous" and
"arrogant." In fact he is nothing but a small mean
person exploited by his Jewish boss to oppress his
own countryman. He thought he had money and
power and behaves like Napoleon. ( In some
aspects, he is worse than Napoleon.) He thought
he could lie his way through court as he did in last
union movement. Little he knew that things didn't
turn out as he expected. When the Judge punc-
tured his lies and repeatedly reprimanded him, too
bad Old-man Chien couldn't see his own mean
miserable conditions of "blushing in shame" and
"not knowing what to say." In the twenty pages
long verdict, almost every page has pointed out
that Old-man Chien lied in court. Truly he is
thick-skin to the end. We wonder whether this
direct blow from the court on him would be able
to wake him up from his "fantasies" or not.
To this verdict, Old-man Chien is using the
same strategy "of the total of thirty-six strategies
in the world, delay is the best strategy": the same
trick he employed in dealing with our voting to
join the union issue . Little he realized that this is
like "drinking poison to stop one's thirst " When
he can no longer stall, he will be "finished off' and
"dead as a door-knob."
As regarding the other three union members
who were fired, the NLRB refused to accept the
charge due to insufficient evidences. We will of
course support them to the end. This case is now
under appeal, we expect to give you a report soon.
Seeing how Old-man Chien used the loopholes
of law to stall for time and the decision handed
down by the NLRB with regard to the three union
members, we clearly realize that we cannot rely
completely on the court for everything. The most
dependable strength lies in the internal unity of
the employees. As long as we unite together, we
will obtain the final victory.
This is going to be a long battle, that's why we
cannot see any concrete actions yet. As a matter
of fact, we have done tremendous amount of
propaganda in recent months, and we have
4 We note that , in addition to Chien's translation , the parties ' stipulation
also contains translations of Meng 's letter undertaken ( 1) by the Institute
Lan Franco , a professional language center located in San Francisco,
California , (2) by the University of California Center for Chinese Studies,
located in Berkley , California; and (3) by Meng, himself. These translations
of the letter vary in some respects from each other and from that of Chien.
However , the variations are slight and the substantial meaning conveyed by
received support from a lot of people. To cite
some concrete example, the only two congressmen
from this city (Phil Burton, John Burton) did write
separately to give their support to the employees
of The Mandarin; they also telephoned the NLRB
to inquire about the progress of this case. At 10:45
A.M. coming Monday, radio K101 will broadcast
on the union movement of The Mandarin. Hope
you all will listen to the program.
At present, we have won the "election," we have
also won the lawsuit on Billy Meng, these are steps
toward our victory. Our plan is a long-drawn one.
We start from the basic, moving from outside and
closing in like tightening the fish-net. Sooner or
later, Old-man Chien the big fish will be in our
net.
Tonight there will be many people coming to
join the pickets and doing demonstration at the
door of The Mandarin to give support to our
brethren and sisters. We hope that our brethren
and sisters working in The Mandarin can unite
together and strive for the final victory.
Discussion and Conclusions
A. Introduction
Counsel for the General Counsel contends that
Meng has engaged in no activities or conduct with
regard to the letter which are outside the protection of
the Act or which warrant his being denied reinstate-
ment. Counsel for Respondent argues, however, that
the March 29 letter was a scurrilous and personal
attack on Chien which warrants Meng's being denied
reinstatement and the tolling of his backpay as of
March 29, 1975, the date of the letter.4
B. Analysis
The issue to be determined in this proceeding is not
whether Respondent discharged Meng in violation of
the Act, for we have already so found; rather, it is
whether the statements contained in Meng's letter
have made him so unemployable as to excuse
Respondent from its duty of offering Meng reinstate-
ment . In this regard, it is pertinent to note the
following principles which are applicable to the
instant proceeding. First, as the Trial Examiner in
O'Daniel Oldsmobile Inc., 5 noted:
When seeking to be excused from his obligation to
reinstate or to pay backpay to a discriminatee
all four translations is essentially the same . In this circumstance , we have
thus relied on Chien's translation of Meng 's letter in determining whether
Meng has forfeited his right to reinstatement since it is on the basis of Chien's
understanding of Meng's letter that Respondent discharged Meng on May
12.
S 179 NLRB 398,405 ( 1969).
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of misconduct which was not a factor in
the discriminatory action, an employer has a
heavier burden than when he is merely seeking to
justify the original discrimination. In the former
case, he has the burden of proving misconduct so
flagrant as to render the employee unfit for further
service, or a threat to "efficiency in the plant "
Secondly, as the Fifth Circuit noted in Crown Central
Petroleum Corp. v. N.LRB.,6 in labor disputes,
passions run high and "epithets and accusations are
commonplace." Accordingly, the context in which
the Meng letter was distributed, i.e., in the midst of a
labor dispute, is fairly to be considered in judging
Meng's suitability for continued employment.?
Viewed against these standards, Meng's March 29
letter, the distribution of which we find protected
concerted activity in any event, clearly does not
warrant a refusal on Respondent's part to reinstate
him nor does it warrant the tolling of any of his
backpay.
We note that the Administrative Law Judge, in
finding that Meng was discharged in violation of the
Act, resolved credibility against Chien. Although the
Administrative Law Judge's credibility resolutions
were excepted to by Respondent, we found no basis
on which to reverse those credibility resolutions.
Meng's letter makes reference to these findings. Other
subjects contained in Meng 's letter are his illegal
discharge and a solicitation of continued support for
the Union.
Thus, in making assertions regarding the Adminis-
trative Law Judge's finding with respect to Chien,
Meng has not engaged in the dissemination of
deliberately or maliciously false information.8 More-
over, the subjects contained in Meng's letter, i.e.,
comments on his illegal discharge and solicitation of
union support, are protected activities. The fact that
Meng engaged in the activity alone does not of itself
remove him from the protection of the Act as group
action is not a prerequisite to concerted activity, for a
single person's action may be the preliminary step to
acting in concert .9 Here, Meng's letter contained a
recitation of events in which the group of employees
had been and still were involved. We, therefore, find
that Meng was engaged in concerted activities within
the protection of Section 7 of the Act in distributing
the letter and that he is still entitled to reinstatement
and full backpay.
6 430 F .2d 724, 731(1970).
' Hugh H. Wilson Corporation v. N LR.B., 414 F.2d 1345, 1356 (C.A. 3,
1969), and comments at fn . 20 therein.
8 El Mundo Broadcasting Corporation, 108 NLRB 1270,1280 ( 1954).
s Salt River Valley Water Users Association, 99 NLRB 849, 853 ( 1952).
10 Phelps Dodge Corporation v. N.LR.B, 313 U .S. 177 (1941).
Respondent asserts that because its restaurant is
small there must be cooperation among the employ-
ees and the manager . It argues it would therefore be
an impossible situation if Meng were reinstated
because he "villified, ridiculed and rebuked" Chien.
We reject Respondent's argument. We note that the
underlying policy of Section 10(c) of the Act, which
our reinstatement orders are intended to effectuate, is
"a restoration of the situation as nearly as possible, to
that which would have obtained but for the illegal
discrimination." 10 As noted, Respondent herein
discharged Meng in violation of the Act. Shortly after
issuance of the Administrative Law Judge' s Decision
finding such a violation, Meng distributed to employ-
ees the letter pointing out this illegal conduct and
asking for continued support of the Union. This was
protected activity. An important basis of the rein-
statement order is the object that other employees be
made aware, through the discriminatee's return to his
or her former job, that their rights to engage in
concerted activity are protected by the Act. Despite
the difficulties which may be engendered, it is
incumbent on the employer and the discriminatee to
attempt to work together harmoniously and forget
past animosity.11
Further , as we have noted, Meng's statements,
occurring in the context of an ongoing labor dispute,
have not rendered him unfit for further service and
we do not view his statements as so unpardonable as
to warrant denying him reinstatement on that basis.12
Accordingly, in view of all the circumstances, we find
that it will not effectuate the policies of the Act to
deny reinstatement to Meng, and we shall order
Respondent to offer him immediate and full rein-
statement and backpay from September It, 1974.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
M Restaurants, Incorporated, d/b/a The Mandarin,
San Francisco, California, its officers, agents, succes-
sors, and assigns, offer Billie Meng immediate and
full reinstatement to his former position or, if this
position no longer exists, to a substantially equivalent
one, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of
earnings suffered by reason of his discharge on
September 11, 1974, in accord with the Administra-
tive Law Judge's Decision herein.
11 See Trustees ofBoston University, 224 NLRB 1385 (1976).
12 Meng's comments about Chien's "Jewish boss," presumably Respon-
dent's corporate vice president who is a member of the Jewish faith , also do
not render him ineligible for further employment . Vermont American
Furniture Corporation, 82 NLRB 408 ( 1949). We, of course, do not condone
any racial or ethnic slurs that such comments might imply.