Village Red Restaurant Corp. d/b/a Waverly Restaurant

National Labor Relations Board - Board Decisions

Mar 20, 2018

366 NLRB No. 42 (N.L.R.B. 2018)

366 NLRB No. 42
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Village Red Restaurant Corp. d/b/a Waverly Restau-
rant and Miguel Romero Lara and Miguel Botel-
lo Gonzaga. Cases 02–CA–162509 and 02–CA–
166015
March 20, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
On October 31, 2016, Administrative Law Judge Ste-
ven Davis issued the attached decision. The General
Counsel filed exceptions, along with supporting argu-
ments.
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 has decided to affirm the
judge’s rulings, findings,1 and conclusions,2 to amend his
remedy, and to adopt the recommended Order as modi-
fied and set forth in full below.3

1 The Respondent has not filed exceptions. In the absence of excep-
tions, we adopt the judge’s findings that the Respondent violated Sec.
8(a)(1) by discharging or constructively discharging employees Justino
Garcia, Miguel Romero Lara, Jesus Delgado, and Miguel Botello Gon-
zaga because they filed a Fair Labor Standards Act (FLSA) lawsuit
against the Respondent, violated Sec. 8(a)(1) and (4) by constructively
discharging Gonzaga because he also filed an unfair labor practice
charge with the Board, and violated Sec. 8(a)(1) by threatening Gon-
zaga with discharge for filing the FLSA suit and the Board charge.
Further, we find merit to the General Counsel’s exceptions, to which
the Respondent has not filed any response. We agree with the General
Counsel that, in addition to the discriminatory discharges, the judge
found that the Respondent discriminatorily reduced the hours of work
of the four above-named employees and that the Conclusions of Law
should be amended accordingly. We further agree with the conforming
changes to the language of the judge’s Conclusions of Law and rec-
ommended Order urged by the General Counsel, which clarify the
Respondent’s principal location and that Gonzaga was constructively
discharged.
We shall also modify the judge’s Conclusions of Law to make clear
that, as the General Counsel’s exceptions point out, Gonzaga was con-
structively discharged twice. In his decision, the judge plainly found
that Gonzaga was forced to quit by the reduction in work hours im-
posed by the Respondent because of his participation in the FLSA
lawsuit. The judge also found that, after Gonzaga was subsequently
asked to and did return to work about a month following this initial
constructive discharge, he was constructively discharged a second time
when he was told to withdraw his Board charge if he wished to main-
tain his employment. We shall amend the Conclusions of Law accord-
ingly.
2 As noted above, we shall amend the judge’s Conclusions of Law
to conform to the violations found by the judge.
3 We shall modify the judge’s recommended Order to conform to
his unfair labor practice findings and in accordance with our decision
in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), and the
AMENDED CONCLUSIONS OF LAW
1. The Respondent, Village Red Restaurant Corp.
d/b/a/ Waverly Restaurant, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act
by discharging Justino Garcia because he filed a Fair
Labor Standards Act lawsuit against the Respondent.
3. The Respondent violated Section 8(a)(1) of the Act
by constructively discharging Miguel Romero Lara, Je-
sus Delgado, and Miguel Botello Gonzaga because they
filed a Fair Labor Standards Act lawsuit against the Re-
spondent.
4. The Respondent violated Sections 8(a)(1) and
8(a)(4) of the Act by constructively discharging Miguel
Botello Gonzaga a second time because he filed a charge
with the National Labor Relations Board against the Re-
spondent.
5. The Respondent violated Section 8(a)(1) of the Act
by threatening Miguel Botello Gonzaga with discharge if
he did not withdraw the Fair Labor Standards Act lawsuit
he filed or if he did not withdraw the charge that he filed
with the Board.
6. The Respondent violated Section 8(a)(1) of the Act
by reducing the hours of work of Justino Garcia, Miguel
Romero Lara, Jesus Delgado, and Miguel Botello Gon-
zaga because they filed a Fair Labor Standards Act law-
suit against the Respondent.
7. The unfair labor practices set forth above affect
commerce within the meaning Section 2(6) and (7) of the
Act.
AMENDED REMEDY
We amend the judge’s remedy as follows. Backpay
resulting from the discharge and/or constructive dis-
charge of Justino Garcia, Miguel Romero Lara, Jesus
Delgado, and Miguel Botello Gonzaga shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010). Backpay resulting from the Respondent’s reduc-
tion of their hours shall be computed in accordance with
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest at the rate
prescribed in New Horizons, supra, compounded daily as
prescribed in Kentucky River Medical Center, supra. The
Ogle Protection formula applies where the Board is rem-
edying a “violation of the Act which does not involve
cessation of employment status or interim earnings that

Board’s standard remedial language, and we shall substitute a new
notice to conform to the Order as modified.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would in the course of time reduce backpay.” Ogle Pro-
tection Service, supra at 683; see also Pepsi America,
Inc., 339 NLRB 986, 986 fn. 2 (2003).
ORDER
The National Labor Relations Board orders that the
Respondent, Village Red Restaurant Corp. d/b/a Waverly
Restaurant, New York, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging and/or constructively discharging em-
ployees because they file a lawsuit pursuant to the Fair
Labor Standards Act or engage in other protected con-
certed activities, or because they file a charge with the
National Labor Relations Board.
(b) Threatening its employees with discharge if they
do not withdraw a lawsuit they filed pursuant to the Fair
Labor Standards Act or if they do not withdraw a charge
they filed with the Board.
(c) Reducing employees’ work hours because they file
a lawsuit pursuant to the Fair Labor Standards Act or
engage in other protected concerted activities.
(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
Justino Garcia, Miguel Romero Lara, Jesus Delgado, and
Miguel Botello Gonzaga full reinstatement to their for-
mer 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 Justino Garcia, Miguel Romero Lara, Jesus
Delgado, and Miguel Botello Gonzaga whole for any
loss of earnings and other benefits suffered as a result of
their discharge or constructive discharge, in the manner
set forth in the remedy section of the judge’s decision as
amended in this decision.
(c) Make Justino Garcia, Miguel Romero Lara, Jesus
Delgado, and Miguel Botello Gonzaga whole for any
loss of earnings and other benefits suffered as a result of
the unlawful reduction of their work hours, in the manner
set forth in the remedy section of the judge’s decision as
amended in this decision.
(d) Compensate Justino Garcia, Miguel Romero Lara,
Jesus Delgado, and Miguel Botello Gonzaga for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and file with the Regional Director for
Region 2, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar
year.
(e) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charges and/or constructive discharges, and within 3 days
thereafter notify Justino Garcia, Miguel Romero Lara,
Jesus Delgado, and Miguel Botello Gonzaga in writing
that this has been done and that their discharges and/or
constructive discharges will not be used against them in
any way.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
its New York, New York facility copies of the attached
notice marked “Appendix.”4 Copies of the notice, in
English and in Spanish, on forms provided by the Re-
gional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places, including all places where
notices to employees are customarily posted. In addition
to physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since September 7,
2015.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

4 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.”
VILLAGE RED RESTAURANT CORP. D/B/A WAVERLY RESTAURANT 3
Dated, Washington, D.C. March 20, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or constructively discharge
you because you file a lawsuit pursuant to the Fair Labor
Standards Act or engage in other protected concerted
activities, or because you file a charge with the National
Labor Relations Board.
WE WILL NOT threaten you with discharge if you do
not withdraw a lawsuit you filed pursuant to the Fair La-
bor Standards Act or if you do not withdraw a charge
you filed with the National Labor Relations Board.
WE WILL NOT reduce your work hours because you file
a lawsuit pursuant to the Fair Labor Standards Act or
engage in other protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Justino Garcia, Miguel Romero Lara, Jesus
Delgado, and Miguel Botello Gonzaga 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.
WE WILL make Justino Garcia, Miguel Romero Lara,
Jesus Delgado, and Miguel Botello Gonzaga whole for
any loss of earnings and other benefits resulting from
their discharge or constructive discharge, less any net
interim earnings, plus interest, and WE WILL also make
such employees whole for reasonable search-for-work
and interim employment expenses, plus interest.
WE WILL make Justino Garcia, Miguel Romero Lara,
Jesus Delgado, and Miguel Botello Gonzaga whole for
any loss of earnings and other benefits suffered as a re-
sult of our unlawful reduction in their hours of work,
plus interest.
WE WILL compensate Justino Garcia, Miguel Romero
Lara, Jesus Delgado, and Miguel Botello Gonzaga for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 2, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar year.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges and/or constructive discharges of Justino
Garcia, Miguel Romero Lara, Jesus Delgado, and Miguel
Botello Gonzaga, and WE WILL, within 3 days thereafter,
notify each of them in writing that this has been done and
that the discharges and/or constructive discharges will
not be used against them in any way.
VILLAGE RED RESTAURANT CORP. D/B/A
WAVERLY RESTAURANT
The Board’s decision can be found at
http://www.nlrb.gov/case/02-CA-162509 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National La-
bor Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Julie R. Ulmet and Matthew Murtagh, Esqs., for the General
Counsel.
Louis Pechman and Vivianna Morales, Esqs. (Pechman Law
Group, PLLC), of New York, New York, for the Charging
Parties.
John Mitchell and Arthur Forman, Esqs. (Mitchell & Incanta-
lupo, Esqs.), of Forest Hills, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed by Miguel Romero Lara, an Individual, in Case
No. 02–CA–162509, and based on a charge filed by Miguel
Botello Gonzaga, an Individual, in Case No. 02–CA–166015, a
complaint was issued on March 31, 2016, against Village Red
Restaurant d/b/a Waverly Restaurant (Respondent or Employ-
er).
The complaint, as amended, alleges that the Respondent re-
duced the hours and/or pay of Lara, Gonzaga, Jesus Delgado,
and Justino Garcia because they engaged in concerted activities
by filing and maintaining a federal law suit against the Re-
spondent.
The complaint alleges by engaging in such conduct, the Re-
spondent caused the termination of Gonzaga’s employment in
violation of Section 8(a)(1) of the Act, and following his return
to work, discharged him because he filed a charge or gave tes-
timony under the Act in violation of Section 8(a)(4) of the Act.
The complaint also alleges that the Respondent discharged
Garcia, and further alleges that by reducing the hours and/or
pay of Lara and Delgado, the Respondent caused their dis-
charge in violation of Section 8(a)(1) of the Act.
Further, the complaint alleges that the Respondent by its
owner and Manager Nicholas Serafis, threatened and/or im-
pliedly threatened an employee with discharge. Finally, the
complaint alleges that Serafis gave an employee the choice
between cooperating with the Board in the investigation of a
charge or terminating his employment.
The Respondent’s answer denied the material allegations of
the complaint and on July 6, 7, and 11, 2016, a hearing was
held before me in New York, New York. On the entire record,
including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and
the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation operating a restaurant, having
its office and placed of business at 385 6th Avenue, New York,
New York, has been engaged in providing food and beverage
service to members of the public. Annually, in the conduct of
its operations, the Respondent has derived gross revenues in
excess of $500,000, and has purchased and received at its New
York location, goods valued in excess of $5000 from other
enterprises such as Discoll Foods and Zeze Food Corp., located
in New York State, each of which having received those goods
directly from points outside New York State.
The Respondent admits and I find that it is and has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE FACTS
A. Background
The Employer operates a restaurant in Manhattan. Its admit-
ted supervisors are its owner Nicholas Serafis and its Manager
John Captan.
The restaurant employs waiters, busboys, deliverymen,
chefs, a chef’s helper, grill men and dishwashers, all of whom
receive a salary. In addition to their salaries, the waiters, bus-
boys, deliverymen and the dishwashers, who occasionally make
deliveries of food, receive tips from customers.
B. The FLSA Lawsuit
Prior to the filing of an FLSA lawsuit the workers did not re-
ceive overtime pay which was required to be paid for hours
worked over 40 per week.
On August 11, 2015, Lara, Gonzaga, Delgado and Garcia
filed a lawsuit in federal court which alleged that they had not
been paid the proper amount of minimum and overtime wages,
and other monies pursuant to the Fair Labor Standards Act
(FLSA) and the New York Labor Law. Four other employees
of the restaurant were plaintiffs in the lawsuit. They have not
been alleged as discriminatees here.
C. The Payroll System
Captan testified that the payroll system used prior to January
1, 2016, consisted of three parts:
First, the employees punch a timeclock to record when they
arrive and leave work. However, he conceded that the times
recorded by the punches were not accurate because often the
employees forgot to punch in and, later in the day, when they
remembered that they had not punched in they did so.
Second, Captan records the employees’ days and hours of
work on a Guest Check. He then compares the timecards to the
Guest Check and then discards the Guest Check. Although he
stated that the Guest Checks are the most accurate record of
employees’ time, he discards them.
Third, Captan records in a “Red Book,” Respondent’s Exhib-
it 1, the names of the employees, and the numbers of days they
work at which position, for example 4 days as a waiter, 1 day as
a counterman. This book is quite confusing and not easily de-
cipherable. After an employee leaves his employment, Captan
erases that name and inserts the name of the new employee on
top. Therefore his interpretation of the recorded names is based
on his memory of whose name, in this case the alleged discrim-
inates, were erased below the name of the employee who re-
placed him.1
Captan used his payroll book to testify concerning the hours
of work of employees following the filing of the lawsuit. On
January 1, 2016, the Respondent used a payroll company to
keep the time records of the employees.

1 Hereafter, alleged discriminatees Garcia, Lara, Delgado, and Gon-
zaga will be referred to as the “four employees.”
VILLAGE RED RESTAURANT CORP. D/B/A WAVERLY RESTAURANT 5
D. The Employees
1. Justino Garcia
Garcia was employed by the Respondent for 28 years—20
years as a waiter.
During his years of service before the lawsuit was filed, Gar-
cia worked an average of 11.8 hours per day during his 6-day
work week. His total weekly hours were about 72.
Captan testified with the aid of the Red Book, that in the first
half of 2015, Garcia’s regular schedule consisted of 6 days per
week or 72 hours per week.
For his 72-hours-per-week work, Garcia was paid $120 per
week in salary by the Respondent. His tips varied depending
on the day. Earlier in the week his tips were between $120 and
$150 per day, and on Saturday and Sunday he received between
$220 and $230 per day in tips. His total tips were about $960
to $1010 per week.
Thus, Garcia’s total wages and tips were thus about $1,080
to $1,130 per week prior to the filing of the lawsuit.
Garcia stated that about 2 weeks after the lawsuit was filed,
Captan told him that his work schedule and his pay were “going
to be different.” His new schedule was reduced from 72 hours
per week to 50 hours. Garcia testified that when he was ad-
vised of the new schedule he agreed, said “ok,” and did not
complain and was “happy” with the arrangement. However,
Garcia testified that he was not happy with the reduction in
hours but that he had to keep working in order to support his
family and pay his bills.
Garcia worked that new schedule for about 5 to 6 weeks until
the end of his employment. Under the new schedule, his salary
was increased from $120 per week to $240 per week. The tips
he received averaged $760 to 820 per week.
Thus, Garcia’s total wages and tips averaged $1000 to $1060
per week 2 weeks after the lawsuit was filed.
Thus, Garcia worked about 20 hours less following the filing
of the lawsuit. However his total pay remained about the same
or only $100 less following the lawsuit. This was due to his
increase in salary, from $120 per week to $240 per week fol-
lowing the filing of the suit, and also due to the reduction in
tips, from about $1000 per week to $800 per week.
Garcia testified that about 1 month later, in late September,
Captan spoke to him alone, advising that their conversation
should be kept between them and that Serifas was not aware of
it. Captan told Garcia that the people who filed the lawsuit
“didn’t know what we were doing” and that he (Garcia) should
“drop the lawsuit.”
Garcia refused to withdraw the suit. Captan told him that “it
would be worth it.” Garcia replied that he was already in-
volved in the suit and would continue his participation in it.
Captan responded that, according to his attorneys, the plain-
tiffs would be awarded no more than $30,000. Of that sum,
Captan told him, $10,000 would be awarded to the plaintiffs’
attorneys as legal fees, $20,000 would go “to the court and
taxes”, and the plaintiffs would receive only $1000 each.
Garcia replied that was “not a problem.” Captan persisted,
telling him “why don’t you drop the lawsuit because the money
that we’re going to make, $3,000 to $4,000” would be paid by
the boss in 3 or 4 years. Garcia responded that all the plaintiffs
intended to pursue the lawsuit.
Captan persisted further telling Garcia that “if you leave this
case I will talk to the boss to give $6,000 to each of us and then
we will save a headache. And then we can keep working as if
nothing happened.” Garcia refused. Captan asked him to think
about it and inquired as to how much money the attorneys were
“fighting for? Will it be worth it?” Garcia said that he did not
know. Captan asked him to find out and also asked when he
would learn the answer. Garcia said that he would provide an
answer in about 1 week.
Garcia stated that about 10 days later, he told Captan that he
did not know how much his attorneys were “fighting for” and
relayed their advice to Captan that if he wanted to know he
should call them. Garcia offered Captan the attorneys’ business
card which he refused to take.
Garcia stated that on about October 10, at the end of the
work week on a Saturday, Serafis told Garcia “don’t come to
work on Sunday and Monday.” Garcia did not report to work
the next 2 days.
Captan called Garcia on Monday, advising that his schedule
was changed so that he would work only Tuesday through
Thursday. His hours were also changed.
Thus, Garcia had previously worked 6 days per week. How-
ever, this change resulted in his being assigned to work only 3
days per week. His weekly work hours were also reduced to 33
hours.
Garcia’s salary of $240 per week remained the same as in the
first schedule change. However, because of the reduction in
hours, his tips were reduced to $480 to $520 per week.
Garcia returned to work on his next scheduled workday,
Tuesday, October 13. He did not work the schedule given to
him 3 days before because his schedule was changed again that
day, October 13. Serafis asked him whether Captan gave him a
new schedule. Garcia said that he had (referring to the sched-
ule given to him on Monday, October 11).
The new schedule required Garcia to work 5 days per week,
Tuesday through Thursday, and Saturday and Sunday. The
new schedule consisted of a 52-hour work week. However,
Garcia did not work that week.
Garcia testified that in their conversation on October 13,
Serafis asked him “why do you insist in staying here.” Garcia
answered that he was working. Serafis asked if he was happy
and Garcia replied that he was. Serafis responded that he did
“not believe that you are happy.” Garcia asked why. Serafis
responded “because what we did, the lawsuit.” Garcia an-
swered that “I had to do that someday.”
Serafis replied that “if you are not happy why [do you] insist
to be there?” Garcia asked “if you want me to leave I will
leave.” Serafis said “this way, I don’t want to see all of you
here.” Garcia told him “if you don’t want to see us why don’t
you fire us?” Serafis replied “I cannot fire you. You can leave
by yourself.” Garcia responded that if Serafis wanted him to
leave he would do so. Serafis asked when he could leave and
Garcia said “right now.” Serafis responded “you cannot leave
now. You have to [have] somebody to replace you.”
Serafis phoned the counterman, who was off that day, and
asked him to come to work to replace Garcia. The counterman
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
arrived at about 10 am and Garcia accompanied Captan to meet
with Serafis and his wife, Angela.
At the meeting, Serafis gave Garcia an envelope containing
his pay, declaring that “I don’t want to see you around my
business.” Garcia noted that Serafis made that comment in their
first conversation that day. Nevertheless, as noted above, Gar-
cia quoted him as saying essentially the same thing—“I don’t
want to see all of you here.” Garcia left the restaurant after his
second conversation with Serafis.
Garcia stated that on his way out of the restaurant Captan
told him that “what happened here was not right. It’s against
the law.” Captan advised him to advise his attorneys of what
had occurred.
Garcia testified that he was discharged by Serafis telling him
that he did not want to see him or the other workers anymore.
Garcia denied quitting or stopping work voluntarily.
Captan testified, denying that he asked Garcia to withdraw
the suit and further denying that he offered him more hours of
work if he did so. Captan further stated that, although Garcia
was an “excellent” employee, he observed that he was “drag-
ging a little bit” following the filing of the lawsuit. Captan
believed that the FLSA case was “bothering him.” According-
ly, Captan told Garcia that he could speak to his attorneys “if
you want we are willing we can do a settlement.”
Captan testified that he believed that if Garcia received an
offer from his attorneys to settle the matter the case would be
“finished earlier” and he would resume his excellent work.
Although Garcia told Captan that he would advise him as to
whether he wanted to settle the matter, he did not. Captan de-
nied offering Garcia $6000 if he withdrew the lawsuit, adding
that he did not mention a sum of money to settle the case.
Captan denied reducing Garcia’s hours because the lawsuit
was filed. Captan admitted that after he gave Garcia the new
40-hour weekly schedule Garcia told him that he was not happy
with 40 hours’ work and was quitting because his hours were
reduced to 40 per week. Captan denied telling him that what
had occurred was not right.
Serafis testified, denying asking Garcia why he insisted on
staying at the restaurant and also denied asking if he was happy
there. Nor, according to Serafis, did he ask Garcia why he did
not leave. Nor did he tell Garcia that he did not want to see
him at the restaurant in the future. Serafis further denied that
Garcia asked him why he did not fire him. Serafis denied mak-
ing Garcia an offer to settle the FLSA lawsuit.
However, Serafis conceded that Garcia quit because his
hours were reduced to 40 per week.
2. Miguel Romero Lara
Lara worked for the Respondent for 25 years as a delivery-
man.
Lara testified that in 2014 he asked Serafis to reduce his
hours of work to 48 hours per week because he intended to visit
Mexico and needed time off to attend his children’s’ college
graduation there. He stated that he did not make that trip. In
this respect I credit Lara’s testimony over that of the Respond-
ent’s witnesses who stated that Lara’s request for reduced hours
was in 2015.
Lara stated that his hours of work were reduced from 48 to
40 at that time.
Before the lawsuit was filed in August, 2015, Lara worked a
regular schedule of 6 to 7 hours per day for 6 days per week.
He worked about 40 hours per week and earned wages of $210
per week. His tips ranged from $60 to $70 per day on week-
days and $90 to $100 per day on weekends, or total weekly tip
earnings of $430 to $480. Lara’s total wages and tips per week,
prior to the lawsuit, were $640 to $690.
Captan testified with the aid of the Red Book that Lara’s
regular schedule during the first half of 2015 consisted of 6
days of work per week or 72 hours per week. Lara requested
and received a reduction in his hours and he then worked 48
hours per week. Captan further testified that thereafter, in the
week ending September 7, Lara worked 30 hours.
Captan’s son began work at the Respondent in July, 2015, 1
month before the lawsuit was filed. Lara stated that in late
August, 2015, following the filing of the FLSA suit, Captan
told him that Serafis directed that Lara’s schedule be changed
because employees’ hours of work would be reduced. Lara’s
schedule was changed so that he worked only 32 hours per
week.
Lara worked that new schedule for about 2 weeks when, in
late September, Captan gave him another schedule in which,
instead of his having 1 day off per week, he was off for 3 days,
Monday, Thursday and Friday. He worked on Tuesday,
Wednesday, Saturday and Sunday. Pursuant to that schedule he
was assigned to work only 20 hours per week whereas in the
late August schedule he worked 32 hours, and prior to the law-
suit he worked 40 hours per week.
Pursuant to the newest schedule, Lara received wages of
$125 per week and tips of about $360 to $380 per week be-
cause of the reduced workweek. That sum should be compared
to tips he received in the amount of $430 to $480 per week
prior to the filing of the lawsuit.2 He also believed that his tips
declined because the dishwashers, who occasionally made de-
liveries before the lawsuit, were assigned to make more deliver-
ies following the filing of the suit. In addition, Captan’s son
made deliveries during that time.
According to the late September schedule, Lara was assigned
to work Tuesday, Wednesday, Saturday and Sunday. Lara
worked that new schedule for about 1 week.
Lara stated that he was told by Serafis that he should not
come to work on Sunday, October 11 which was his regular
work day. He asked Serafis whether, since he would be off on
Sunday he could come to work on Monday which was his
scheduled day off. Serafis told him not to come to work on
Monday.
Lara came to work on Tuesday, October 13. At that time he
was not scheduled to work on Monday, Thursday and Friday.
He had just been given the prior Sunday off. Accordingly, Lara
asked Serafis whether he would be assigned to work only 2
days per week, Tuesday and Wednesday. Serafis said that he
could only work Tuesday and Wednesday.

2 The amount of tips Lara received pursuant to the schedule change
in late August was not offered in evidence.
VILLAGE RED RESTAURANT CORP. D/B/A WAVERLY RESTAURANT 7
Lara worked that day, Tuesday and the following day,
Wednesday, October 14. That day he again asked Captan if his
workweek consisted of only 2 days. Captan said it had, and
that Serafis hired someone else to work on Saturdays and Sun-
days.
Lara stated that the following day, October 15, Captan told
him that Serafis had said that Lara could only work 2 days per
week for 4 hours each day. Lara replied that he could not work
2 days for four hours each day. Captan paid him $60 for the 2
days and told him that the workers should proceed with their
lawsuit. Lara’s tips that week were between $125 and $140.
Lara testified that he quit his job because he could not sup-
port himself with two 4-hour workdays per week.
Captan testified that in 2014 and 2015, before and after the
FLSA lawsuit was filed, Lara requested a reduction in his
hours. After the suit, Captan reduced his hours to 48. He told
Captan that he intended to move to Mexico shortly.
Lara’s salary remained the same even though he worked
fewer hours for the same number of days. Captan explained
that Serafis decided to keep his salary at his regular rate.
Captan noticed at that time that Lara was “less cooperative”
than he had been, refusing to bring supplies to other workers
when asked, and that he only did deliveries. In the summer of
2015, Captan sought to “help him a bit” by hiring his (Cap-
tan’s) son to make deliveries 10 to 15 hours per week. He add-
ed that he believed that Lara would be leaving soon and he
wanted to teach his son the job so that he would not “get
stuck.”
Captan admitted that when he reduced Lara’s hours by 15, he
assigned those 15 hours to his son. Captan stated that when he
reduced Lara’s hours further “he just quit.”
Captan stated that the dishwashers made deliveries before
and after the lawsuit was filed. He noted that Lara was “slow-
ing up” in making deliveries and he had to use the dishwashers
to make sure that orders were delivered on time. Lara stated
that Captan never told him that he was not satisfied with his
performance.
Captan denied telling Lara on his last day of work that he
should proceed with his lawsuit. Captan stated that Lara just
said that he was leaving.
Serafis denied asking Lara to leave his employment, noting
that Lara quit work because the Respondent reduced his hours.
Serafis corroborated Captan’s testimony that Lara asked that
his hours of work be reduced because he planned to leave for
Mexico shortly.
The General Counsel alleges that Lara was constructively
discharged.
3. Jesus Delgado
Delgado worked for the Respondent for nearly 10 years. He
worked 5 days a week as a waiter and 1 day a week as a coun-
terman. Prior to the filing of the FLSA lawsuit, he worked 72
to 75 hours per week. He was paid $200 per week in wages
and received weekly tips of $730 to $1010. Accordingly, his
total weekly income was $930 to $1210 per week.
The Red Book record of hours and days worked shows that
in the weeks ending September 7 and 14, Delgado worked 53
hours. In the week ending September 21, he worked 51 hours
and in the following week he worked 61 hours. In the week
ending October 5 he worked 52 hours and in the week ending
October 19, Delgado worked 46 hours.
Delgado stated that in early September, Captan told him that
his hourly schedule would be changing. His hours were re-
duced to 55 to 62 per week and his pay rate was changed to $5
per hour. His weekly pay was from $286 to $300. He com-
plained to Captan and Serafis that he was not working 72 hours
per week as he had previously.
Delgado testified that he recorded a conversation with Cap-
tan on September 28. Captan told him that regardless of what
his attorneys told him, Captan’s attorneys said that the FLSA
case would take 1½ to 2½ years to be resolved. Captan asked if
his lawyers gave him some “numbers.”3
Delgado told Captan that his attorneys calculated that he was
owed $5 per hour for 12 hours per day for 6 days per week
times 6 years plus overtime pay.
Captan told Delgado that the Respondent’s attorneys also
calculated what his pay should be. Captan told him that, as-
suming that $60,000 was awarded, one-third would go to the
attorneys, one-third to the government for taxes, and $20,000
for himself.
Captan advised him that the Respondent would deduct taxes
from the amount he received. Captan calculated the amount of
taxes owed at $2000 times six years, leaving Delgado with
$6000 or $9000. He further advised Delgado that the Respond-
ent would pay the amount owed him over a period of three
years.
Captan told Delgado that he spoke to Gonzaga and another
employee about his plan but did not receive an answer. Captan
added that Serifas had another “plan” to “find good people” and
that he would have everyone work 40 hours, and be paid the
“correct pay.” Captan said that he believed that Delgado was a
“smart man” and that he was “a friend.”
Captan advised Delgado that the Respondent’s lawyers
would wage a “strong fight” but that they did not want the case
to continue for 5 years, but that “if the number comes to 60,
you ended up with something like this.” He told Delgado that
“It’s going to be a lot of cuts.”
Captan asked for an answer from Delgado after which he
would “start working” for Garcia and Gonzaga. He offered a
payout over 3 years and “no taxes and nothing.” Delgado
asked for time to speak with the other workers “to get the right
number.” Captan said that Delgado would “end up with 11 or
12 and get payments . . . right away, cash . . . .”
Captan added that “60 or 65 hours . . . it’s never going to
happen again, everybody is going to be 5 days in the near fu-
ture.”
Delgado stated that, thereafter, 1 or 2 weeks before his last
day at work, he was told by Serafis that his schedule would be
changed to include 3 days as a counterman and 1 day as a wait-
er for which he would receive $5.25 per hour and that taxes
would be deducted from his pay.

3 The Respondent’s attorney stated that he compared the recordings
of the September 28 and October 18 conversations to the written tran-
scripts and confirmed the accuracy of the transcripts as compared to the
recordings.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Two or three days later, on October 18, Serafis gave him a
new schedule in which he was scheduled to work as a counter-
man for 40 hours per week and receive $210 per week in wag-
es. He recorded that conversation.
Serafis asked Delgado . . . “you insist on staying here?” Del-
gado said he did and Serafis asked “why you want to stay with
this, with this hours?” adding “if you want to go, go, you don’t
have to stay . . . cause there’s no money for you.” Delgado
replied that he would work as scheduled.
Delgado announced to Serafis that he was quitting that day.
He told Serafis that he told Captan that morning that that day
was his last. Serafis paid him for 2 days’ work. Delgado
thanked him and Serafis said “I hope you don’t bother this store
because if you bother this store, I am going to bother you.”
Delgado said that he would not.
Delgado testified that he quit his employment because his
weekly hours were reduced from 72 or 75 to less than 40, and
that he received fewer tips as a counterman.
Delgado stated that the Respondent did not offer to increase
his hours above 40 as a counterman.
Captan conceded that he reduced Delgado’s hours from 70 to
50 or 55. He stated that following the filing of the suit and the
reduction in his hours, he noticed a change in Delgado’s work
performance. He had been the best waiter in the restaurant but
following the lawsuit he found that he was “dreaming a little”
and not working as fast as before.
Captan stated that following the reduction in his hours he
“tried to do a settlement with him” if he needed money quickly
and in order to cause a change in his performance.
Captan admitted that he suggested that a fair settlement
would be $60,000, and conceded telling Delgado that he could
speak with Serafis to “maybe get you” that sum. He advised
Delgado that the lawsuit would be time consuming and that, in
the end, he would receive only 30 percent of the amount
claimed and even that sum would be made in payments. Cap-
tan asked him to consider speaking to his attorneys or a “neutral
attorney” and advise Captan so that they could “settle up the
case faster.”
Captan stated that Delgado told him that if his hours were
reduced to 40 he would quit. When Captan told Serafis of that
conversation Serafis advised Captan that “we’re going to do 40
hours for everyone no matter what.”
Captan testified that on October 18, when Delgado’s hours
were reduced to 40 per week he told Captan that he was quit-
ting. Captan stated that he was disappointed because Delgado
was an excellent worker. Captan stated that later that day Ser-
afis told him that upon telling Delgado that he would be work-
ing 40 hours he quit.
Captan denied suggesting to Delgado that he should with-
draw the suit without speaking to his attorneys. He denied
offering to increase his work hours if he withdrew the suit. Nor
did he tell him that if he did not withdraw the suit he would be
discharged.
Serafis denied asking Delgado why he insisted on working at
the restaurant and further denied telling him that if he wanted to
leave he should leave. Serafis conceded that Captan told him
that Delgado would quit if his hours were reduced to 40, and
Serafis advised Captan that if he wanted to leave that was his
choice.
Serafis stated that after Delgado’s hours were reduced to 40
he admitted, as set forth in the recording of the meeting, that he
asked why Delgado insisted on working at the restaurant, and
told him to leave if he wanted to. Serafis explained that he
made that comment because Delgado had been “nagging” him
each day for more hours of work, and he told him that if he was
not happy and wanted to leave that was his choice.
Serafis further explained his comment in which he warned
Delgado not to bother his business or he would bother him.
Serafis stated that the meaning of his statement was that if Del-
gado left he should not return and bother the employees or “bad
mouth” him, the restaurant or the employees, nor should he
bother him each day about his hours of work.
Serafis explained that he could not assign Delgado to more
hours than 40 because he was attempting to cut the hours of all
employees to 40 per week.
4. Miguel Botello Gonzaga
Gonzaga was employed by the Respondent for about 15
years. He worked as a busboy.
Before the FLSA lawsuit was filed he worked 11 hours each
day for a total of 66 hours for a 6-day week. His pay from the
Respondent was $150 per week. His weekly tips totaled $40 to
$60. His total weekly income was $590 to $610.
In late August, following the filing of the lawsuit, Captan
gave Gonzaga a new schedule in which he worked only 4 days
per week for 11 hours per day or 44 hours per week. He was
paid wages of $130 per week and received tips of 315 to $335
per week. His total pay was $445 to $465 per week.
In early September, Gonzaga’s schedule was changed again.
Instead of working 11 hours per day, he was assigned to work 8
hours in each of his 4 days of work. Accordingly, he was
scheduled to work 32 hours per week.
Gonzaga did not work that schedule. When he was given
that change in hours he told Captan that he would not work that
schedule because 2 days were already taken from his schedule
and now his hours were cut further. Captan replied that he
would ask Serafis to reinstate his 66 hour, 6-day week.
Gonzaga stated that he quit work that day because he could
not afford to work the schedule he had been given. He stated
that he could not support his family on two fewer days’ work
per week.
About 1 month after Gonzaga quit, Captan phoned him and
asked him to return to work. Captan told him that he had to
“take off the lawsuit.” Gonzaga replied that he would withdraw
the suit if the other plaintiffs did so. Gonzaga did not withdraw
the lawsuit. Captan told him to return to work in 2 weeks.
Gonzaga returned to work on Monday, October 12. He was
scheduled to work a 6-day, 54-hour week. He earned wages of
$180 per week and received weekly tips of $365 to $400 or a
total of $545 to $580 per week.
Gonzaga worked that schedule until Saturday, October 31.
Gonzaga testified that at the end of that workday, Captan told
him that Serafis decided that his new day off would be on Sun-
day. Gonzaga had always worked on Sunday. He earned the
greatest amount of tips on Saturday and Sunday—$90 to $100
VILLAGE RED RESTAURANT CORP. D/B/A WAVERLY RESTAURANT 9
each day compared to $60 to $70 on weekdays when he worked
11-hour days, and compared to $45 to $50 per weekday when
he worked 8-hour days.
Captan also told Gonzaga that day that perhaps his hours
would be changed also, depending on what Serafis decided. He
said that he would speak with Serafis “to know what he said
he’s going to be doing with me—what was going to happen to
me…. not to do the same as he did to the others.”
Captan told Gonzaga to report to work on Monday, Novem-
ber 2. When Gonzaga reported to work that day he observed
that Serafis’ nephew was working in his position as a busboy.
Gonzaga spoke to Serafis in private that day. Gonzaga testi-
fied that Serafis told him that he “was in another lawsuit” and
showed him the charge that had been filed with the Board on
October 22. Serafis pointed to Gonzaga’s name in the charge
and asked him why he was “in another lawsuit.” Gonzaga re-
plied that Serafis was not paying the correct amount of pay.
Gonzaga stated that Serafis told him that if he wanted money,
he would give it to him “under the table.” Gonzaga replied that
he did not file the charge in order to damage Serafis, but to
obtain “justice.”
Gonzaga testified that Serafis told him that “if you want to
keep your job drop the lawsuit and I will keep my job.” Gon-
zaga did not respond and left the restaurant. Outside the en-
trance he encountered Captan who told him that Serafis’ actions
in taking “two busy days and hours from [you] was not right
and advised him to speak to his attorneys.
Gonzaga later testified on cross examination that Serafis told
him that if he did not withdraw the lawsuit he would be fired
but inconsistently stated on further cross examination that Ser-
afis did not say what would happen if he did not withdraw the
suit. I credit Gonzaga’s first testimony that Serafis told him
that if he did not withdraw the lawsuit he would be fired. That
testimony is supported by Captan’s quote of Serafis that Serafis
told Gonzaga, referring to the newly filed charge, “hey Miguel,
what is this? You working here and you suing the place?” or he
told him “what is this? Why are you here working.”
Gonzaga stated that when he left the restaurant that day it
was his understanding that he had been discharged.
Gonzaga testified that he quit because Serafis removed 2
days from his workweek and, in addition, did not permit him to
work on Sunday, his busiest day. He stated that another reason
for quitting was because Serafis demanded that he withdraw the
lawsuits as a condition of keeping his job and he did not with-
draw the suits.
Captan testified that following the reduction in his hours,
Gonzaga told him that he was quitting because he did not make
enough money. At that time he was working about 45 to 48
hours per week.
Captan further stated that he recalled Gonzaga to work be-
cause he could not find a replacement and also because he was
the best busboy he ever had—an honest and excellent worker.
Captan stated that when he asked Gonzaga to return to work,
he promised that he would assign him 55 to 60 hours per week
and indeed, he was given 58 hours per week. However, when
Gonzaga returned to work Captan told him that he could not
keep that promise because business was not that good and be-
cause Serafis ordered that everyone must be reduced to 40
hours with “no exception.” Gonzaga then told him that he had
to quit and left the premises.
Captan then told Serafis that Gonzaga had quit. Captan testi-
fied that Serafis told him that he told Gonzaga that morning that
he received another lawsuit, referring to the charge, and asked
him “hey Miguel, what is this? You working here and you su-
ing the place?” or he told him “what is this? Why are you here
working.”
Serafis testified that he approved Captan’s request to recall
Gonzaga to work after he quit. Serafis conceded that Gonzaga
quit the first time because his hours were reduced and that he
wanted to work more hours. However, he denied that Captan
told him that in order to persuade Gonzaga to return, he would
have to offer him more hours. Serafis stated that he did not
know that the Respondent would have to offer him more than
40 hours as an incentive for him to return to work. Serafis
admitted that he was glad that Gonzaga returned to work be-
cause he was a “good man.”
Serafis admitted showing Gonzaga the charge he received
from the Board. He conceded telling Gonzaga that the charge
stated that he discharged Gonzaga. He asked him what the
charge was about—it says “that I fired you. I never fired you.”
Gonzaga left his office. Serafis denied speaking to Gonzaga
about his hours at that meeting. Serafis denied telling him that
he was promised more hours but that he could only work 40
hours.
Serafis further denied telling Gonzaga that if he withdrew the
lawsuit he would pay him “under the table.” Nor did he offer
him any sum of money to withdraw the suit.
E. Credibility Determinations
I have taken into consideration Captan’s testimony denying
that he asked any of the four employees to leave his employ
because of the FLSA lawsuit. He further denied reducing the
hours of the four employees because of the suit. He maintained
that their hours were reduced in order to save money by not
paying overtime rates. Captan denied telling any of the four
employees to withdraw the lawsuit or they would be dis-
charged. Nor did he tell them that the Respondent’s actions
were not fair and that they should consult their attorney.
Where such testimony differs from that given by the four
witnesses for the General Counsel, I credit their testimony.
Their testimony was consistent with the recordings made by
them of their conversations with Captan and Serafis. Their
descriptions of their wages and hours were corroborated by the
Respondent’s payroll records and, to a large extent, by Captan’s
testimony.
The four employees’ testimony was consistent with each
other and was corroborated by the recordings of the conversa-
tions concerning the offers made by the Respondent to settle
the FLSA case they brought. Their testimony was also con-
sistent with their similar treatment by the Respondent’s reduc-
tion of their hours and pay. I credit their testimony when it
differs from that given by Captan and Serafis.
On the other hand, much of the testimony given by Captan
and Serafis was elicited through leading questions. The Re-
spondent’s broad argument that it intended to reduce all its
employees’ hours to 40 is thoroughly contradicted by the fail-
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ure of such an effort, even 1-1/2 years later, to do so. Further,
Captan gave testimony concerning employees’ work schedules
which differed from the Red Book’s recordings on that subject.
F. The General Counsel’s Prima Facie Case
In cases such as this one involving alleged discrimination
against employees because they filed a lawsuit, the Board ex-
amines the facts pursuant to its decision in Wright Line, 251
NLRB 1083 (1980).
In such cases, the General Counsel has the initial burden to
prove that an employee’s Section 7 activity was a motivating
factor in the employer’s action against him. The elements
commonly required to support the General Counsel’s initial
showing are protected concerted activity by the employee, em-
ployer knowledge of that activity, and animus on the part of the
employer. See, e.g., Libertyville Toyota, 360 NLRB 1298,
1301 (2014), enfd. 801 F.3d 767 (7th Cir. 2015). If the General
Counsel makes the required initial showing, the burden shifts to
the employer to prove by a preponderance of the evidence that
it would have taken the same action even in the absence of the
protected concerted activity. The employer does not meet its
burden merely by establishing that it had a legitimate reason for
its action; rather, it must demonstrate that it would have taken
the same action in the absence of the protected conduct. See,
e.g., Bruce Packing Co., 357 NLRB 1084, 1086–1087 (2011),
enfd. in pertinent part 795 F.3d 18 (D.C. Cir. 2015). If the
evidence establishes that the proffered reasons for the employ-
er’s action are pretextual—i.e., either false or not actually relied
upon—the employer fails by definition to show that it would
have taken the same action for those reasons, regardless of the
protected conduct. See Golden State Foods Corp., 340 NLRB
382, 385 (2003), citing Limestone Apparel Corp., 255 NLRB
722 (1981). David Saxe Productions, LLC, 364 NLRB No. 100
(2016). See also Camaco Lorain Mfg. Plant, 356 NLRB 1182,
1184–1185 (2011); Regal Recycling, Inc., 329 NLRB 355, 356
(1999). Animus may be inferred from the record as a whole,
including timing and disparate treatment. Brink’s, Inc., 360
NLRB 1206, 1206 fn. 3 (2014).
The Respondent admits, at it must, the first two bases of the
General Counsel’s burden. Its brief (page 4), states that “the
Employer does not dispute the General Counsel’s contention
that the employees were engaged in a protected activity by
filing or joining an FLSA lawsuit for alleged unpaid minimum
wages and overtime hours. Employer also does not dispute
General Counsel’s contention that the employer was aware of
the protected activity, namely that the employees had filed an
FLSA action.”
Of course, Board law supports the Respondent’s admission
that the filing of the FLSA lawsuit constituted protected, con-
certed activity. Beyoglu, 362 NLRB No. 152 (2015).
The Respondent also partly admits the complaint allegation
that it reduced the hours and pay of the employees. In this
regard, as discussed below, the Respondent admits that it re-
duced the hours of the four employees because of its new poli-
cy of employing all its workers for 40 hours per week, thereby
avoiding the payment of overtime rates of pay to its employees
as required by the FLSA.
The question to be decided is the Respondent’s motivation in
reducing the hours and, as a result, the pay of the four employ-
ees. General Counsel argues that it was motivated in taking
those actions by the filing of the FLSA lawsuit. The Respond-
ent argues that it reduced the hours of the four employees and
indeed, all its employees, as a result of its legitimate business
decision to avoid the payment of overtime rates.
G. The Reduction of the Hours and Pay of the Four Employees
and its Animus Toward Them
As set forth above, the Respondent does not dispute that it
reduced the hours of the four employees involved herein.
However, inasmuch as the complaint alleges that Garcia, Lara,
Delgado and Gonzaga were constructively discharged because
of the reduction of their hours and/or pay, I will discuss those
reductions.
1. Justino Garcia
Prior to the FLSA lawsuit, Garcia worked 72 hours per
week, earning wages and tips of $1,080 to 1,130 per week. In
late August, his schedule was changed whereby he worked 50
hours per week, pursuant to which he earned $1,000 to $1,060
weekly. In a final change in schedule, which Garcia did not
work, he would have worked 33 hours per week, and would
have received $720 to $760 per week in wages and tips.
I credit the testimony of Garcia that he was told by Captan as
set forth above, that the four employees did not know what they
were doing and that Captan urged him to withdraw the lawsuit.
I further credit Garcia’s testimony, as conceded by Captan, that
he discouraged Garcia to pursue the suit because it was time
consuming and he would not receive the amount of money he
expected. Further, I credit Garcia’s testimony, as again corrob-
orated by Captan, that the Respondent was willing to settle the
suit.
I cannot credit Captan’s denial that he mentioned the sum of
$6,000. Garcia’s testimony was precise and detailed. He quot-
ed Captan as saying that if he accepted that sum, it would “save
a headache” and he could continue working “as if nothing hap-
pened.”
Garcia’s recitation is believable. The evidence is clear, as
testified by Delgado, that Captan also asked him for an “an-
swer” regarding his offer of settlement. Further, Delgado cred-
ibly testified that Captan told him that Gonzaga and another
employee did not give him an answer regarding his offer to
settle the case.
Evidence of animus is Garcia’s credible testimony that Ser-
afis asked him why he insists on remaining at work, and that he
did not want to see the employees at the restaurant. When Gar-
cia challenged him, inquiring why Serafis did not fire them,
Serafis said that he could not fire the men—they could leave
voluntarily. Garcia said that if Serafis wanted him to leave he
would do so and Serafis told him to leave immediately.
Serafis conceded that Garcia quit because his hours were re-
duced to 40 per week. I find, as alleged in the complaint, that
Garcia was discharged. Serafis said that he did not want to see
the men in the restaurant and demanded that Garcia leave the
employ of the restaurant immediately. That constitutes the
Respondent’s discharge of Garcia.
VILLAGE RED RESTAURANT CORP. D/B/A WAVERLY RESTAURANT 11
I accordingly find and concluded that the General Counsel
has made a prime facie showing that the Respond net was mo-
tivated in discharging Garcia, an employee of nearly 30 years,
because of his protected activity in filing the FLSA lawsuit.
2. Miguel Romero Lara
Prior to the filing of the FLSA lawsuit, Lara worked 40
hours per week, earning a total of $640 to 690 per week. After
the lawsuit was filed he was assigned to work 32 hours per
week, and then, a schedule of 20 hours per week. Finally, he
was scheduled to work only 8 hours per week. Had he worked
that schedule, he would have received a weekly income of $185
to $200 in wages and tips.
The evidence thus establishes that during his final 2 months
of employment, from the time the lawsuit was filed in mid-
August to mid-October, 2015, Lara suffered a reduction in his
weekly hours from 40 to 8, and in his weekly salary, from an
average of $665 to $192.50.
Thus, Lara’s weekly income was reduced by 71 percent.
When he was informed that he was scheduled to work only 2
days per week for 4 hours per day he told Captan that he could
not do so. He testified that he quit his job because he could not
support himself with two 4-hour workdays per week.
The General Counsel alleges that Lara was constructively
discharged.
Normally, if an employee voluntarily quits, he cannot claim
that he has been discriminatory discharged.
However, the Board has recognized that an employee may be
constructively discharged.
A constructive discharge occurs when an employee quits be-
cause his or her employer has deliberately made working condi-
tions unbearable and it is proven that (1) the burden imposed on
the employee caused, and was intended to cause, a change in
the employee’s working conditions so difficult or unpleasant
that the employee is forced to resign and (2) the burden was
imposed because of the employee’s union or concerted activi-
ties. Yellow Ambulance Service, 342 NLRB 804, 807 (2004);
Intercon I (Zercom), 333 NLRB 223, 223 fn. 3 (2001). The
Board has explained that regarding the first part of the legal
standard, “the test for intent is not limited to whether the em-
ployer specifically intended to cause the employee to quit, but
includes whether, under the circumstances, the employer rea-
sonably should have foreseen that its actions would have that
result.” Yellow Ambulance Service, above, at 807.
The Board has found that employees who were coerced into
leaving work by an adverse change in working conditions mo-
tivated by an employer’s animus toward their concerted activi-
ties did not voluntarily quit but were coerced into resigning
their jobs, thereby being constructively discharged. Kosher
Plaza Supermarket, 313 NLRB 74, 87 (1993); Kenrich Petro-
chemical, 294 NLRB 519, 539 (1989); Michael Adkins, 323
NLRB 311, 322 (1997).
The Board has found that the reduction of work assignments
and consequently the income of its employees was done with
the “awareness and expectation what it would force the termi-
nation of employees who engaged in protected activity and that
it was “sufficient to constitute such onerous conditions as to
effectuate a constructive discharge.” Alterman Transport Lines,
Inc., 308 NLRB 1282, 1293–1294 (1992).
With equal effect the Board has found that large reductions
in employees’ incomes are sufficient to compel a reasonable
employee to quit his job. Consec Security, 325 NLRB 453, 453
(1998). In that case the Board held that “a significant reduction
in income for an indefinite period of time, causing an employee
to quit and seek alternative employment, when a motive for
such treatment was protected activity will establish constructive
discharge,” citing T & W Fashions, 291 NLRB 137, 142
(1988); La Favorita, Inc., 306 NLRB 203, 205 (1992); Trum-
bull Industries, 314 NLRB 360, 365 (1994). The Board further
noted in Consec that “the reduction of the employee’s wages by
nearly 25 percent clearly meets this test. Thus, it can reasona-
bly be inferred that such a large reduction in income would
impair an employee’s ability to meet living expenses to such an
extent that the employee would be compelled to seek alterna-
tive employment.”
In Kime Plus, Inc., 295 NLRB 127, 146 (1989), and Holiday
Inn of Santa Maria, 259 NLRB 649, 662 (1981), the Board
found a constructive discharge where the reductions in pay
suffered by the employees there were less, and in some cases
far less, than Lara endured here.
In Crow Inc., 206 NLRB 439, 443 (1973), the employer re-
duced the employee’s work schedule from 5 days per week to
4, notwithstanding his complaint that he could not make
enough money on that basis and then quit to accept a full-time
job affording him “a livable wage.” The Board found that the
“reduction of the employee’s hours of work, and consequently
his weekly pay, was clearly the cause of his leaving respond-
ent’s employment” and constituted his constructive discharge.
In Sav-Mor Centers, Inc., 234 NLRB 775, 781 (1978), the
Board found a constructive discharge in the reduction of an
employee’s hours from about 15 per week to 9. The employee
concluded that she could not support herself on $27 per week
and quit her job. The Board stated that “the fact that the dis-
crimination placed one employee in a position where she could
not subsist merely carries the illegal action one step further and
constitutes a constructive discharge.”
In Ybarra Construction Co., 343 NLRB 35, 41 (2004), fol-
lowing the employee’s filing of a wage claim his hours were
reduced and his wage rate decreased from $17 per hour to
$11.35. He was also demoted in position and restricted to a
certain type of duties. The Board found that he was construc-
tively discharged.
Here, the General Counsel has established that in a short pe-
riod of time Lara, who had been employed for 25 years, en-
dured a drastic reduction in his hours and earnings. The evi-
dence is clear that his quitting his job fits within the definition
of a constructive discharge.
Thus, I find that Lara quit because the Respondent deliber-
ately made working conditions unbearable by the cutback in his
hours and earnings. That burden caused, and was intended to
cause, a change in his working conditions from a schedule of
40 hours a week prior to the filing of the lawsuit to 8 hours per
week. That change was so drastic as to force Lara to resign,
which he did, for that precise reason—he could no longer sup-
port himself with the 8 hours he was assigned. It is also clear
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that such a burden was imposed on Lara because of his concert-
ed activity of filing the lawsuit. Yellow Ambulance Service,
above.
As noted in the above cases, the employee’s belief that he
could not meet his living expenses with the reduced hours of
work and pay he received, is a factor in finding a constructive
discharge.
Accordingly, I find that Lara quit his employment because
the Respondent deliberately made his working conditions un-
bearable by reducing his hours and pay, and those changes in
his employment caused him to resign. I further find that such a
cutback in his conditions of employment was imposed because
of his activities in filing the FLSA lawsuit.
I therefore find that the General Counsel has made a prima
facie showing that Lara, a 25-year employee, was forced by the
Respondent to quit his employment, thereby causing his con-
structive discharge, because he filed the FLSA lawsuit. Wright
Line, above.
3. Jesus Delgado
Prior to the filing of the FLSA lawsuit, Delgado worked 72
to 75 hours per week, earning wages and tips of $930 to $1,210
per week. Following the filing of the lawsuit, Delgado reduced
his hours to about 52 per week and then to 40. The cutbacks in
hours suffered by Delgado caused a great reduction in his in-
come.
The Respondent’s animus toward Delgado is amply shown
in his recorded conversation with Serafis shortly before he quit.
Thus, following his reductions in hours, Serafis expressed his
disbelief that Delgado wanted to continue to work there. Ser-
afis asked him “you insist on staying here?” Delgado said he
did and Serafis asked “why you want to stay with this, with this
hours?” adding “if you want to go, go, you don’t have to stay
. . . cause there’s no money for you.” Delgado replied that he
would work as scheduled.
That comment establishes that the Respondent’s object in re-
ducing Delgado’s hours and pay was to have Delgado quit.
Serafis expressed his incredulity that Delgado would want to
work with the diminished hours he was assigned when, at the
same time “there’s no money for you.”
Accordingly, for the reasons set forth above regarding Lara, I
find that the General Counsel has made a prima facie showing
that Delgado, an employee for nearly 10 years, was forced by
the Respondent to quit his employment, thereby causing his
constructive discharge, because he filed the FLSA lawsuit.
Wright Line, above.
4. Miguel Botello Gonzaga
Prior to the filing of the FLSA lawsuit, Gonzaga worked 66
hours per week earning $590 to $610 per week as wages and
tips. After the lawsuit was filed, 2 weeks later, his hours were
reduced to 44 per week resulting in a large decrease in his earn-
ings. A couple of weeks after that the Respondent gave him a
schedule whereby he would work 32 hours per week which was
half his original hours. In addition, his earnings, if he had
worked that schedule would have been diminished accordingly.
Gonzaga refused to work that new schedule and quit. For
the reasons set forth above, I find that Gonzaga, an employee
for more than 15 years, quit his employment because the Re-
spondent deliberately made his working conditions unbearable
by reducing his hours and pay, and that such changes in his
employment caused him to resign. I further find that such a
cutback in his conditions of employment was imposed because
of his activities in filing the FLSA lawsuit.
Accordingly, for the reasons set forth above regarding Lara, I
find that the General Counsel has made a prima facie showing
that Gonzaga was forced by the Respondent to quit his em-
ployment, thereby causing his constructive discharge, because
he filed the FLSA lawsuit. Wright Line, above.
As set forth above, 1 month after Gonzaga quit, Captan re-
called him to work but said that he had to withdraw the lawsuit.
After his return to work, Gonzaga was pointedly told by Serafis
that he was “in another lawsuit” referring to the NLRB charge,
and told him that if he wanted to retain his job he had to drop
the lawsuit.
Gonzaga quit that day. He stated that one of the reasons he
quit was Serafis’ demand that he withdraw the lawsuits as a
condition of keeping his job and he did not drop the lawsuit.
He also stated that when he left the restaurant that day it was
his understanding that he had been discharged.
It is clear that Gonzaga did not intend to quit at that time. He
had been recalled to work and was working 54 hours per—
more than the 44 hours and 32 hours he had received in his
prior schedules after the lawsuit was filed.
In addition, the Respondent at that time was agreeable to his
continuing to work. However, when the charge was filed Ser-
afis changed his attitude and told him “you working here and
you suing the place . . . why are you here working?” Thus,
Serafis was motivated to discharge Gonzaga because he filed
the charge. Serafis confronted Gonzaga with the choice of
withdrawing the charge or continuing to work.
The Board has recognized a “Hobson’s Choice” theory of
constructive discharge. Pursuant to that principle, an employ-
ee’s voluntary quit will be considered a constructive discharge
when an employer conditions an employee’s continued em-
ployment on the employee’s abandonment of his or her Section
7 rights and the employee quits rather than comply with the
condition. Titus Electric Contracting, Inc., 355 NLRB 1357,
1357 (2010); Intercon I (Zercom), 333 NLRB 223, 223 & fn. 4
(2001). The Hobson’s Choice at issue must be clear and une-
quivocal and the employee’s predicament not one which is left
to inference or guesswork. Intercon I (Zercom), above, at 224
& fn. 9.
Here, it is clear that Gonzaga was presented with a Hobson’s
Choice. He could retain his job if he withdrew the lawsuits.
This finding is supported by the testimony of Captan who quot-
ed Serafis as showing Gonzaga the newly filed charge and ask-
ing him “hey Miguel, what is this? You working here and you
suing the place?” or he told him “what is this? Why are you
here working.”
Thus Serafis expressed his disbelief that Gonzaga could le-
gitimately work for the employer that he was suing. Serafis’
statements may also be viewed as encouraging Gonzaga to quit,
as if to say “how can you sue us and continue to work here?” It
also expresses Serafis’ animus toward Gonzaga for suing the
Respondent.
VILLAGE RED RESTAURANT CORP. D/B/A WAVERLY RESTAURANT 13
The evidence supports a finding that the Respondent’s con-
duct led Gonzaga to reasonably believe that he was compelled
to choose between withdrawing the two lawsuits or being ter-
minated.
Gonzaga was given that Hobson’s Choice twice—first, when
he returned to work upon the condition that he must withdraw
the FLSA lawsuit and then, when the charge was filed, he was
asked rhetorically “you working here and you suing the
place?”
Thus the Respondent made the clear impression on Gonzaga
that his continuing to work was inconsistent with his maintain-
ing the two lawsuits. The Respondent presented him with the
obvious choice—even if it was not expressly made—drop the
lawsuits and you can continue to work. He had to abandon the
lawsuits if he wanted to preserve his job. Faced with that
choice, Gonzaga quit.
Thus, presented with the Hobson’s choice of relinquishing
his statutory rights or facing termination, Gonzaga resigned
rather than abandon his coworkers and their lawsuit.
Although Serafis did not literally state that Gonzaga had to
abandon his support for the Union as a condition of his contin-
ued employment, the Respondent’s message was unmistakable.
The Hobson’s Choice was clearly and unequivocally conveyed
to him. The Respondent’s conduct led Gonzaga to reasonably
believe that continuing to support his coworkers and continue
his participation in the lawsuit and continuing his employment
were incompatible. Thus, he was compelled either to abandon
his statutory rights or to quit. Intercon I (Zercom), 333 NLRB
223, 224 (2001).
I therefore find that the General Counsel has made a prima
facie showing that Gonzaga was forced by the Respondent to
quit his employment, thereby causing his constructive dis-
charge, because he filed the FLSA lawsuit and because he re-
fused to withdraw that lawsuit and the charge. Wright Line,
above. I further find that the Respondent’s retaliation against
him was motivated by his filing the charge in violation of Sec-
tion 8(a)(4) of the Act. I also find that Serafis’ comment that
Gonzaga was still working despite his filing the charge consti-
tuted a threat to discharge him in violation of Section 8(a)(1) of
the Act.
H. The Respondent’s Defense
Inasmuch as I have found that the General Counsel has made
a prima facie showing that employees Garcia, Lara, Delgado,
and Gonzaga were unlawfully discharged or constructively
discharged because they filed the FLSA lawsuit, the burden
shifts to the Respondent to prove by a preponderance of the
evidence that it would have taken the same action even in the
absence of their protected concerted activity. Wright Line,
above.
The Respondent maintains that prior to the filing of the
FLSA lawsuit on August 11, 2015, it was not aware of its legal
obligation to pay employees at a time and one-half overtime
rate for hours worked over 40 per week.
Following the filing of the lawsuit the Respondent instituted
a new policy whereby it would reduce, “across the board,” all
its employees’ work hours to 40 per week, including the hours
of the four employees involved here. Its purpose in doing so
was to avoid paying overtime rates.
The Respondent therefore maintains that it did not discrimi-
nate against the four employees by reducing only their hours,
but had a policy of reducing all its employees’ hours of work.
The General Counsel disputes this, arguing that the hours of
only the four alleged discriminatees were reduced in the 2-
month period following the filing of the lawsuit.
I cannot find that the Respondent has shown that it would
have reduced the hours of the four employees even in the ab-
sence of their protected concerted activity.
First, the evidence establishes that the Respondent did not
and has not reduced all its employees’ hours of work. Thus,
Captan admitted that, at the time of the hearing, 11 months after
the filing of the lawsuit, the Respondent had still not reduced
all its employees’ hours to 40. Indeed, he claimed that the Re-
spondent hoped to accomplish that goal by the end of 2016,
nearly 1-1/2 years after the filing of the lawsuit.
Captan further conceded that upon reducing employees’
hours he found that 1 or 2 weeks later he “couldn’t make it.
We tried.” Captan noted that “we were not ready to have eve-
ryone go to 40 hours tomorrow morning.” That is understanda-
ble, but the fact that the Respondent does not expect to fulfill its
policy for another 1-1/2 years leads one to question its com-
mitment to its policy and therefore the validity of that policy.
Thus, it must be observed that the Respondent acted at
breakneck speed in reducing the hours of Garcia, Lara, Delgado
and Gonzaga while it takes an unhurried approach to the im-
plementation of its policy toward its other employees.
Further, it appears that where it suited the Respondent’s
business interests it abandoned its policy of reducing workers’
hours to 40 and even increased their hours above 40. Thus,
after Gonzaga quit because he was not making enough money
with the 32 hours per week he was assigned, he was rehired and
scheduled to work 58 to 60 hours per week.
Apparently the Respondent was motivated to recall Gonzaga
because he was the “best busboy” it ever had and an excellent
worker according to Serafis and Captan. Accordingly, the Re-
spondent deviated from its policy of having employees work
only 40 hours per week when it suited its business purposes.
Regarding its other workers, Captan stated that the wait staff
had all been reduced to 40 hours but the counterman is still
working 45 to 50 hours, and that it was difficult to reduce the
hours of the kitchen staff such as the chef and the chef’s helper.
He stated that some kitchen staff’s hours were reduced from 55
or 60 hours per week to 50. But he does not expect to reduce
their hours to 40 until the end of 2016.
As a further example, David Garcia, a kitchen worker, had
his days of work reduced from 6 to 5, but then the following
week the Respondent had to increase his days to 6 because the
restaurant “couldn’t make it without him, even one day.”
Thus, as will be further demonstrated below, the Respondent
has not shown that it had a consistent, enforced policy of reduc-
ing all its employees’ hours to 40. Its immediate enforcement
of its “policy” of reducing employees work hours to 40 was
applied only to the four employees shortly after the FLSA law-
suit was filed.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Captan testified giving examples from the Red Book in an
effort to prove that the Respondent reduced the hours of all of
its employees, or was engaged in an ongoing program to do so.
In using the Red Book, Captan testified regarding the hours
and days of work in 2015 of certain employees. In many in-
stances Captan’s testimony did not accord with the Red Book
record. I must credit the written, daily record as made by Cap-
tan, over his testimony.
In addition, according to Captan, after the suit was filed, the
Respondent decided to employ more employees who would
work 40 hours per week rather than have fewer employees who
would earn overtime. Captan’s aim in hiring more workers was
to reduce the hours each employee worked so that the Re-
spondent would not have to pay overtime rates, thus saving
money in payroll costs.
Another factor was that Captan believed that employees who
worked overtime would be tired and would not perform as well
as if they had 2 or 3 days off. No evidence was presented to
support this claim. Indeed, the four employees worked for a
cumulative total of 80 years during which they worked exten-
sive overtime hours with no apparent complaints by them or the
Respondent’s supervisors. Indeed, Captan described them as
“excellent” workers.
The case of Denise Santos is significant. Santos worked 4
days, 10 hours per day, in the week ending September 7, and
worked 3 days, 10 hours per day in the week ending September
14. Thereafter, she continued to work 3 days per week. In the
weeks ending September 28 and October 5, she worked 44
hours per week.
Significantly, Captan testified that the Red Book does not
show a reduction in the hours of work for the week ending
September 7 for any employee other than the four employees.
He further significantly stated that for the week ending Sep-
tember 14, the record does not show that any employee other
than the four employees and Santos experienced a reduction in
their hours.
Ruben Sanchez, a kitchen employee, worked 6 days in the
week ending September 7. In the week ending September 14,
he worked 5 days and worked 5 days thereafter. This would
tend to show that Sanchez’ hours were reduced in mid-
September, as were the four employees. However, a closer
examination of the Red Book shows that from January to Au-
gust, 2015, Sanchez worked a 5-day week for 23 weeks in that
period, and also worked 6-day weeks during 11 weeks in that
period.
Accordingly, although the evidence shows that Sanchez’
work schedule was reduced from 6 to 5 days per week in mid-
September, that reduction followed a significant period of time
when he had also worked a 5-day workweek in the prior 6
months. Thus, it has not been shown that Sanchez’ regular
schedule had been 6 days prior to his hours being reduced to 5
days, as was the case with the four employees.
There was conflicting testimony concerning waiter Kumar
Ashok. There was testimony that in the week of September 7,
he worked 6 days and was reduced to 5 days in the week of
September 14. However, Captan testified that he worked 5
days in the week of September 7. In addition, the evidence
establishes that between January and August, 2015, he regular-
ly worked 6-day weeks in 24 weeks. He also worked 8 weeks
in which he logged 5 days per week, and two 7-day weeks.
Between September and December, 2015, he worked a 6-day
week in 12 of those weeks and a 5-day week in 4 of those
weeks. Accordingly it has not been shown that Ashok worked
a regular schedule as did the four employees and that such
schedule had been reduced following the filing of the lawsuit.
Franky Javier worked 4 days in the week of September 7 and
1 day in the week of September 14. However, the Red Book
shows that Javier’s wages increased from $50 to $70 per week
between January and July, 2015, and to $90 per week in Au-
gust. From September to December 2015, Javier’s weekly
wages were more than $150. The records also show that from
January to August, he regularly worked 24 hours per week, but
starting in October, his regular hours of weekly work were
more than 30. Javier’s record thus shows that his hours of work
and wages were increased following the filing of the FLSA
lawsuit when the hours of work and wages of the four employ-
ees were reduced.
Shah Bhuiuyan worked 5 days or 6 days per week from Jan-
uary to December 2015. His hours were not reduced during the
relevant time period.
Prior to the week ending September 7, David Garcia worked
6 days a week. In the week ending September 7, he was re-
duced to 5 days per week. Captan explained that when Garcia
was reduced to 5 days, the Respondent “had to bring him back
to six” the following week because he was a kitchen worker
and at that time “they couldn’t make it without him, even one
day less.” It should be noted that Garcia also worked less than
6 days per week before September, 2015.
Captan compared the record of Sonok Gulti to that of Garcia.
Gulti worked 6 days per week in the vast majority of weeks
from January to August, 2015. In those weeks in which he did
not work 6 days he worked 5-day and 7-day weeks. Accord-
ingly, Gulti’s days of work were not reduced. Captan ex-
plained his increase in days per week because of a “problem in
the kitchen.”
Employee Emerson worked less than 6 days per week at
least 12 times between January and August, 2015. In each
week from September through December, 2015, however, he
worked 6 days per week.
Prior to September 7, cashier Arlis Puga worked 10 hours
per day for 4 days per week. In the week ending September 7,
she worked 30 to 38 hours per week. In the weeks ending Sep-
tember 14 and 21 she worked 38 hours per week.
Captan testified that other than the four employees and Puga,
no other employee’s pay rate was changed from a daily pay rate
to an hourly pay rate in the week ending September 7. He fur-
ther stated that in the weeks ending September 7 and 14, he did
not calculate pay based on the number of hours worked for any
employees other than the four employees and Puga.
Kumar Tiki, a waiter, worked 62 hours per week but was re-
duced to 48 to 52 at the time of the hearing. It must be noted
that Captan testified that it was “easy” to reduce the hours of
waiters to the goal of 40 hours per week but Tiki is an example
of a waiter whose hours were not reduced to 40 at the time of
the hearing.
VILLAGE RED RESTAURANT CORP. D/B/A WAVERLY RESTAURANT 15
Kitchen worker Fernando Alanis worked 60 hours per week
before the filing of the FLSA lawsuit and at the time of the
hearing worked 55.
Garcia Fernando, the chef’s helper, worked 40 hours per
week but then worked more than that because, as Captan ex-
plained, he had problems replacing him.
Garcia Moreno David worked 41 hours per week but at the
time of the hearing worked about 50 hours.
Prior to the filing of the lawsuit Cesar Bensantis worked 55
to 60 hours per week. In the week ending September 7, he
worked 39 hours per week but at the time of the hearing
worked 52 hours.
In the week ending September 21, Martin Reader worked 54
hours, employee Potsas worked 40 hours, and employee Costas
worked 30 hours. It was not shown whether their hours were
reduced.
Yolanda Smiarkowska and Virginia Volka, both of whom
were hired in 2016, worked 40 hours. Since they were hired at
least 4 months after the FLSA lawsuit, nothing has been proven
by the fact that they were hired to work 40 hours per week.
Captan testified that Irene Katzadus’ weekly hours were re-
duced from 55 to 40. Marcello Rosas, a cook, was reduced
from 60 hours to 56 or 57. Fernando Alanis had his 60-hour
week reduced to 54 or 55. Fernando Garcia’s hours were cut
from 60 to 52 or 53. Sonuk Coolgit, a busboy was reduced to
40 hours. The hours of Margarito Lucero, a waiter, were re-
duced to 40 hours. Margarita Hernandez Salvador worked 35
to 40 hours.
Jose Rosas worked 6 days per week in most weeks from Jan-
uary to August,2015. Captan testified that prior to the filing of
the lawsuit, Rosas worked 64 hours in the week ending July 20.
He worked 6 days per week in the weeks ending September 7,
14, and October 19. In the week ending October 26, he worked
7 days per week.
Freddy Garcia worked 6 days per week and some 5-day
weeks between January and August, 2015. In September, 2015,
he worked 6 days per week and continued to work such a
schedule in most weeks until late 2015.
In response to Captan’s questions of employees as to wheth-
er they were happy with the decrease in their hours, they stated
that they were happy. The Respondent apparently argues that
no violation can be found if the workers were pleased with the
reductions in their hours.
I first find that the question was “loaded.” The employees
reasonably could fear retaliation if they responded that they
were not happy. Second, it is clear that they were not content
with their new schedules. They did protest that they needed
more hours and would quit if their schedules were not returned
to what they were before the lawsuit was filed.
Further, the workers refused to withdraw their lawsuit,
thereby signaling that they were not happy with the reductions
in their hours of work.
Captan denied asking any of the four employees to leave his
employ because of the FLSA lawsuit. He further denied reduc-
ing the hours of the four employees because of the suit. He
maintained that their hours were reduced in order to save mon-
ey by not paying overtime rates. Captan denied telling any of
the four employees to withdraw the lawsuit or they would be
discharged. Nor did he tell them that the Respondent’s actions
were not fair and that they should consult their attorney.
Captan testified about the alleged poor work performance of
Garcia, Lara, and Delgado. No credible evidence has been
produced substantiating that testimony. Moreover there is no
claim that they were discharged for malfeasance. Their long
service with no evidence of warnings or discipline refutes any
such testimony.
Conclusions Regarding the Respondent’s Defense
I cannot find that the Respondent met its burden of proving
that it would have reduced the hours of work of Garcia, Lara,
Delgado and Gonzaga even in the absence of their concerted
action of filing the FLSA lawsuit.
It has not proven that it instituted and consistently enforced a
policy and plan of reducing its other employees’ hours of work.
As demonstrated above, the Respondent’s practice of reduc-
ing employees’ hours of work was inconsistent. Thus, where
the Respondent reduced kitchen employees’ hours but then
found that it could not do without their work “even for one
day” it reversed its policy and restored the hours withdrawn.
Further, after constructively discharging Gonzaga by lowering
his hours, when the Respondent found that it needed Gonzaga’s
“excellent” service, he was rehired to work and assigned to
work significantly more hours than 40.
As shown above, the hours of other employees were not re-
duced. Indeed, the Respondent admits that it does not expect to
reduce all its employees’ hours until the end of 2016.
The Board has long held that the failure to have a consistent
application of a policy which is uniformly followed is evidence
of an unlawful motive in applying it to employees who have
engaged in protected, concerted activity. George P. Baily &
Sons, Inc., 341 NLRB 751, 758 (2004); Clock Electric, Inc.,
323 NLRB 1226, 1232 (1997); Heartland Food Warehouse,
256 NLRB 940, 943 (1981); St. Paul’s Church, 275 NLRB
1242, 1257–1258 (1985).
I find that Garcia, Lara, Delgado and Gonzaga did not quit
their employment. They were discharged and/or constructively
discharged.
I accordingly find and conclude that the Respondent has not
met its burden of proving that it would have discharged or con-
structively discharged Garcia, Lara, Delgado and Gonzaga even
in the absence of their protected, concerted activities. Wright
Line, above.
Further Analysis and Discussion
The complaint, as amended, alleges that the Respondent re-
duced the hours and/or pay of Garcia, Lara, Delgado and Gon-
zaga because they engaged in concerted activities by filing and
maintaining a federal law suit against the Respondent.
The complaint alleges by engaging in such conduct, the Re-
spondent caused the termination of Gonzaga’s employment in
violation of Section 8(a)(1) of the Act, and following his return
to work, discharged him because he filed a charge or gave tes-
timony under the Act in violation of Section 8(a)(4) of the Act.
The complaint also alleges that the Respondent discharged
Garcia, and further alleges that by reducing the hours and/or
pay of Lara and Delgado, the Respondent caused their dis-
charge in violation of Section 8(a)(1) of the Act.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, the complaint, as amended, alleges that the Re-
spondent, by Serafis, threatened and/or impliedly threatened an
employee with discharge. Further, the complaint alleges that
Serafis gave an employee the choice between cooperating with
the Board in the investigation of a charge, or terminating his
employment. These allegations clearly relate to Gonzaga.
As set forth above, the main issue to be decided is the Re-
spondent’s motivation in reducing the four employees’ hours.
That motivation is readily seen in Garcia’s testimony. As cred-
ibly testified by him, Serafis told him that he did not want to
see the four employees again, and when asked by Garcia why
he did not fire them, Serafis said that he could not discharge
them—they had to leave on their own.
I do not credit Serafis’ denial of this conversation. What fol-
lowed clearly shows that it took place. Thus, Garcia credibly
testified that he then asked Serafis “if you want me to leave I
will leave” and when asked by Serafis when he would leave
Garcia said he would leave immediately. Serafis told him to
wait until the off-duty counterman could come to replace him.
Thus, Serafis apparently believed that he could not discharge
the four employees because it would be obvious that he did so
because they filed the FLSA lawsuit. Indeed, what excuse
could he give for firing four extremely long-term “excellent”
employees?
Accordingly, instead of firing the four employees he em-
barked on a campaign to first encourage them to leave, and then
force them to leave. This is made obvious by his telling the
Delgado “you insist on staying here? . . . why you want to stay
with this hours . . . if you want to go, go, you don’t have to stay
. . . cause there’s no money for you.” And telling Garcia—“why
you insist on staying here.”
Further proof is seen in the fact that the four employees’
hours were reduced in stages. Unable to force them to leave
after the first round of reductions, the Respondent reduced their
hours once or twice more until they could not afford to remain
employed.
For example, Garcia’s weekly hours were first reduced from
71 to 50 and then to 33. Lara’s hours were lowered first from
40 to 32, then to 20 and then to 8. Delgado’s hours were re-
duced from an average of 73.5 to an average of 58.5 and then to
40. Gonzaga’s hours were lowered from 66 to 44, and then to
32. (Upon his being recalled to work, his hours rose to 54).
The Respondent clearly hoped that the four employees
would leave after each reduction in their hours. “You insist on
staying here . . . why you want to stay with this hours . . . if you
want to go, go, you don’t have to stay . . . cause there’s no
money for you.”
It is obvious that Serafis made these severe reductions in
hours because of his correct belief that he could not lawfully
discharge them for filing the lawsuit. Thus he sought to lower
their hours and consequently their pay in order to compel them
to leave. He was successful in doing so.
In addition, if the Respondent’s plan, goal and policy was to
reduce all its employees’ hours to 40 why did it find it neces-
sary to lower the employees’ hours to a point lower than 40:
Garcia’s hours to 33, and Lara’s to 20 and then 8, and Gon-
zaga’s hours to 32?
The answer is obvious. The only reason the Respondent
lowered their hours to a point below 40 hours, which was more
severe than its original and long-range plan, was to force the
employees to resign. It was successful in this endeavor.
In this regard it is quite significant that Lara worked 40 hours
per week at the time the FLSA lawsuit was filed. There was
thus no apparent need to lower his hours further if the Re-
spondent’s plan was to reduce everyone’s hours to 40. He was,
at that time, already working 40 hours. The fact that his hours
were cut back from 40 to 20 and then to 8, was clearly an effort
to force him to quit.
In considering the cases of the four employees it must be
kept in mind that they were very long term employees who
were considered by their supervisors as outstanding: Garcia,
nearly 30 years; Lara, 25 years; Delgado, nearly 10 years; and
Gonzaga, more than 15 years.
Captan described Garcia and Delgado as “excellent” em-
ployees. He termed Gonzaga the best busboy he has ever em-
ployed—an “excellent and honest” worker, and as described
above, recalled him to work at a higher wage after he quit the
first time.
The high regard in which the Respondent held these experi-
enced long-term employees is additional and substantial evi-
dence that they were unlawfully discharged. Captan admitted
as such. He told Garcia and Romero on their last days of work
that “what happened here was not right” and advised them to
speak to their attorneys and pursue the lawsuit against the Re-
spondent.
Accordingly, the Respondent embarked on program to force
the four employees to leave. It did so by reducing their hours
of work. A decline in their hours of work necessarily caused
them to receive less tips. Their wages were increased but their
tipped income was lower because they had fewer opportunities
to service the restaurant’s customers. As a result their total
income was lower than it had been before the reductions.
When the first reductions in their hours did not cause them to
quit, their hours were reduced about 2 weeks later, and then
about 2 weeks after that.
The Respondent correctly states that it increased the weekly
wages paid to Garcia, Delgado and Gonzaga as set forth
above.4 It did this in order to comply with the minimum wage
laws. It argues that inasmuch as their pay rose, no discrimina-
tion took place against them.
The record shows otherwise. For example, Garcia’s wages
were increased from $120 per week to $240 per week. After
the change in late August, he earned about the same in tips and
wages as he had before the FLSA lawsuit was filed even though
he worked 21 fewer weekly hours. However, in the next pro-
posed change on October 10, when his wages remained at $240
per week, he would have worked only 33 hours and would have
earned about $740 per week.
Delgado’s wages were increased from $200 per week to
$210 per week. However, his hours were reduced from 72–75
per week to 55–62 per week, and thereafter to 40 hours per
week, resulting in a loss of total tips and wages from an average
of $1070 to $390 per week.

4 Lara’s weekly wages were decreased from $210 to $125 to $60.
VILLAGE RED RESTAURANT CORP. D/B/A WAVERLY RESTAURANT 17
Gonzaga’s wages were decreased from $150 per week before
the lawsuit to $130 per week and then increased to $180 per
week thereafter. However, the reduction in his weekly hours
from 66 to 44 to 32 before his recall resulted in a decline in his
income from an average of $600 per week to $455 per week.
Accordingly, although employees’ weekly wages were in-
creased, their total incomes declined because of the reduction in
their hours of work. The fact that the Respondent believed that
it was forcing them to leave regardless of their increased wages
is clearly shown in Serafis’ comments to Delgado: “why you
want to stay with this, with this hours?” adding “if you want to
go, go, you don’t have to stay. . . cause there’s no money for
you.”
As set forth above, I have found that the General Counsel
has made a prima facie showing that the Respondent was moti-
vated in discharging or constructively discharging the four
employees because they filed an FLSA lawsuit against the Re-
spondent.
I have also found that the Respondent has not proven that it
would have discharged or constructively discharged them even
if they had not filed the lawsuit. The case of Gonzaga, Cap-
tan’s testimony, and the work records of other employees com-
pletely undermine the Respondent’s defense.
The Respondent maintained that, following the filing of the
FLSA lawsuit it adopted an “across the board” policy of reduc-
ing all its employees weekly hours to 40.
As seen above, Gonzaga’s hours were reduced in two stages
to 32 but then increased to 54 upon his rehire. The Respondent
was willing to disregard its policy of a 40-hour week upon its
expectation that Gonzaga would withdraw the lawsuit. As
noted above, when Captan recalled him to work, he told Gon-
zaga that he would have to drop the suit.
In addition, the record is replete with instances where kitch-
en workers’ hours were reduced but then restored when it was
found that their service was needed. The Respondent admits
that it had not reduced all its employees to 40 and does not
expect to do so until the end of 2016.
Moreover, and significantly, Captan admitted that the Re-
spondent’s records do not show a reduction in the hours of
work for the week ending September 7, the first week of the
reductions in hours, for any employee other than the four em-
ployees. He further significantly stated that for the week end-
ing September 14, the record does not show that any employee
other than the four employees and Denise Santos experienced a
reduction in their hours.
The above record is hardly a showing that the Respondent
had an “across the board” policy of reducing all its employees’
weekly hours to 40.
I accordingly find and conclude that the Respondent violated
Section 8(a)(1) of the Act by discharging and/or constructively
discharging Garcia, Lara and Delgado, and violated Section
8(a)(1) and (4) of the Act in discharging Gonzaga. I further
find that it threatened Gonzaga with discharge if he did not
withdraw the FLSA lawsuit and the charge filed against the
Respondent.
CONCLUSIONS OF LAW
1. The Respondent, Village Red Restaurant Corp. d/b/a/ Wa-
verly Restaurant, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by
discharging Justino Garcia because he filed a Fair Labor Stand-
ards Act lawsuit against the Respondent.
3. The Respondent violated Section 8(a)(1) of the Act by
constructively discharging Miguel Romero Lara and Jesus Del-
gado because they filed a Fair Labor Standards Act lawsuit
against the Respondent.
4. The Respondent violated Section 8(a) (1) of the Act by
discharging Miguel Botello Gonzaga because he filed a Fair
Labor Standards Act lawsuit against the Respondent.
5. The Respondent violated Section 8a(1) and (4) of the Act
by discharging Miguel Botello Gonzaga because he filed a
charge with the National Labor Relations Board against the
Respondent.
6. The Respondent violated Section 8(a)(1) of the Act by
threatening Miguel Botello Gonzaga with discharge if he did
not withdraw the FLSA lawsuit he filed or if he did not with-
draw the charge that he filed with the Board.
7. The unfair labor practices set forth above are unfair labor
practices affecting commerce within the meaning Section 2(6)
and (7) of the Act.
THE 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 discriminatorily discharged and/or
constructively discharged and refused to reinstate Justino Gar-
cia, Miguel Romero Lara, Jesus Delgado, and Miguel Botello
Gonzaga, it must offer them reinstatement to their former posi-
tions or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges they would have enjoyed, absent the
discrimination against them. Further, I shall recommend that
the Respondent make them whole for any loss of earnings and
other benefits resulting from their discharges and/or construc-
tive discharges, less any interim earnings, plus interest, plus
reasonable search-for-work and interim employment expenses.
King Soopers, Inc., 364 NLRB No. 93 (2016).
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010), enf. denied on other grounds sub. nom. Jack-
son Hospital Corp. v NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
In accord with Don Chavas d/b/a Tortillas Dan Chavas, 361
NLRB 101 (2014), my recommended Order also requires the
Respondent to (1) submit the appropriate documentation to the
Social Security Administration so that when backpay is paid to
the employees, it will be allocated to the appropriate calendar
quarters, and/or (2) reimburse them for any additional Federal
and State income taxes they may be assessed as a consequence
of receiving a lump-sum backpay award covering more than 1
calendar year.
In accordance with the Board’s decision in J. Picini Floor-
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing, 356 NLRB 11, 15–16 (2010), I shall recommend that the
Respondent be required to distribute the attached notice to
members and employees electronically, if it is customary for
the Respondent to communicate with employees and members
in that manner. Also in accordance with that decision, the
question as to whether a particular type of electronic notice is
appropriate should be resolved at the compliance stage. J.
Picini Flooring, above, slip op. at 3. See Teamsters Local 25,
358 NLRB 54 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Village Red Restaurant Corp. d/b/a Waver-
ly Restaurant, New York, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discharging and/or constructively discharging employees
because they engaged in concerted activities or because they
filed a lawsuit pursuant to the Fair Labor Standards Act or be-
cause they filed a charge with the National Labor Relations
Board.
(b) Threatening its employees with discharge if they did not
withdraw the lawsuit they filed pursuant to the Fair Labor
Standards Act or if they did not withdraw the charge they filed
with the Board.
(c) 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 the Board’s Order, offer
Justino Garcia, Miguel Romero Lara, Jesus Delgado, and Mi-
guel Botello Gonzaga full reinstatement to their former jobs, or
if those jobs no longer exists, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Justino Garcia, Miguel Romero Lara, Jesus Delga-
do, and Miguel Botello Gonzaga whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the Remedy section of
the Decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges
and/or constructive discharges, and within 3 days thereafter
notify Justino Garcia, Miguel Romero Lara, Jesus Delgado, and
Miguel Botello Gonzaga in writing that this has been done and
that their discharges will not be used against them in any way.
(d) Within 14 days after service by the Region, post at its fa-
cility in Bethpage, New York, copies of the attached notice
marked “Appendix.”6 Copies of the notice, in English and in

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-
Spanish, on forms provided by the Regional Director for Re-
gion 2, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted. In
addition to physical posting of paper notices, the notices shall
be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since September
7, 2015.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(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.
Dated, Washington, D.C. October 31, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge or constructively discharge you be-
cause you engaged in concerted activities or because you filed a
lawsuit pursuant to the Fair Labor Standards Act or because
you filed a charge with the National Labor Relations Board.

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.”
VILLAGE RED RESTAURANT CORP. D/B/A WAVERLY RESTAURANT 19
WE WILL NOT threaten you with discharge if you do not with-
draw the lawsuit you filed pursuant to the Fair Labor Standards
Act or if you do not withdraw the charge you filed with the
National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order,
offer Justino Garcia, Miguel Romero Lara, Jesus Delgado and
Miguel Botello Gonzaga full reinstatement to their former jobs,
or if those jobs no longer exists, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
WE WILL make Justino Garcia, Miguel Romero Lara, Jesus
Delgado, and Miguel Botello Gonzaga whole for any loss of
earnings and other benefits suffered as a result of the unlawful
discrimination against them.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharges
and/or constructive discharges, and within 3 days thereafter
notify Justino Garcia, Miguel Romero Lara, Jesus Delgado, and
Miguel Botello Gonzaga in writing that this has been done and
that their discharges and/or constructive discharges will not be
used against them in any way.
VILLAGE RED RESTAURANT CORP.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/02-CA-162509 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.