Dickens, Inc., 667 (2008)

Dickens, Inc. and Wenqing Lin. Case 29–CA–28229

May 30, 2008

DECISION AND ORDER

By Chairman Schaumber and Member Liebman

On December 4, 2007, Administrative Law Judge Steven Fish issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings,1 findings,2 and conclusions3 and to adopt the recommended Order and notice as modified.4

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Dickens, Inc., Commack, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

1. Substitute the following for paragraph 2(c).

   “(c) Within 14 days from the date of the Board’s order, remove from its files any reference to the unlawful discharge of Lin, and within 3 days thereafter notify the employee in writing that this has been done and that the discharge will not be used against him in any way.”

2. Substitute the following for paragraph 2(e).

   “(e) Within 14 days after service by the Region, post at its Commack, New York facility, copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by the Regional Director for Region 29, 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. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the 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 employees employed by the Respondent at any time since September 29, 2006.”

3. Substitute the attached notice for that of the administrative law judge.

   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 benefit and protection

   Choose not to engage in any of these protected activities.

   We will not tell our employees not to discuss their bonuses, wages, or any other terms and conditions of employment with one another.

   We will not discharge or refuse to reinstate our employees, because said employees engaged in protected concerted activities.

   We will not in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act.

   We will within 14 days from the date of the Board’s Order, offer Wenqing Lin full reinstatement to his former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

   We will make Lin whole for any loss of earnings and other benefits suffered as a result of the discrimination against Lin plus interest.

   We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge of Lin, and within 3 days thereafter notify the employee in writing that this has been done and that the discharge will not be used against him in any way.

   Dickens, Inc.

   Henry Powell and Tabitha Boerschinger Esqs., for the General Counsel.

   James Chou, Vice President and Owner, of Commack, New York, for the Respondent.

   DECISION

   Statement of the Case

   Steven Fish, Administrative Law Judge. Pursuant to charges filed on March 21, 2007 by Wenqing Lin, an Individual, (called Lin), the Director for Region 29, issues a Complaint and Notice of Hearing on July 19, 2007, alleging that Dickens, Inc. (called Respondent), violated Section 8(a)(1) of the Act, by threatening employees with discharge if they requested improvements in their pay, and by discharging Lin, because he engaged in protected concerted activity.

   The trial with respect to the allegations raised in said Complaint was held before me in Brooklyn, New York on August 20 and 21, 2007. Briefs have been filed and have been carefully considered. Based upon the entire record, including my observation of the demeanor of the witnesses, I make the following

   Findings of Fact

   i. jurisdiction

   The Employer is a corporation, with its principal office and place of business in Commack, New York, where it is engaged in the wholesale distribution of greeting cards and social stationary.

   During the past year, Respondent purchased and received at its Commack facility, goods and products valued in excess of $50,000 directly from entities located outside the state of New York.

   It is admitted and I so find, that Respondent is and has been an Employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

   ii. facts

   Respondent, as noted above is engaged in the wholesale distribution of greeting cards and stationary. James Chou is Respondent’s vice-president and owner.

   Wenqing Lin, had been employed by Respondent as a warehouse employee since August 1, 1998. Qui Shen Liu and Miaona Wu have been employed by Respondent in a similar capacity, since 2004 and 2000 respectively. Their job consisted of filling orders which entails reading orders, carrying and stocking boxes, and preparing orders to be shipped.

   Respondent has for some time employed a system of paying bonuses to its employees, which is calculated based on a comparison of monthly sales figures to the same month, the prior year. Respondent would then calculate the amounts due based on different percentages for different employees, ranging from 0.2 percent to 0.5 percent. Lin, Liu and Wu all received the same percentage, 0.2 percent or $2 per thousand.

   In early 2006,1 Respondent’s chief competitor went out of business. As the major greeting card supplier in the area, Respondent picked up more business, and was able to earn increased monthly profits. This resulted in bonuses for its employees. In July, Respondent hired three new employees, and decided not to give bonuses to these new employees, who were primarily college students.

   Lin, Liu and Wu, as long-term employees received their bonus, which amounted to over $800 per person. On September 29, Lin, Wu and Liu were cleaning up outside their work area and preparing to leave for the day. Chou approached the three employees, and said that business continues to be good, and that employees should expect to receive a bonus again for this past month.

   He added that employees had received over $800 per month as a bonus. Wu responded by asking how long this kind of bonus can last? Chou replied that he didn’t know, but he thought it should last for a while. Wu then stated that since business was getting better, at the same time, their work became more busy. Wu then asked if it was possible for the bonus to be increased?

   Chou made no response to Wu’s inquiry, but Lin then interjected himself into the conversation. Lin said that the bonus rate that we2 have was only two out of a thousand. Lin asked whether new employees would be receiving the bonus. Chou replied that the new employees would not be receiving any bonus, and added “do me a favor, you are getting paid much more than anybody else, please keep silent, don’t have a big mouth. You are making over $800 per month, in bonuses, and I cannot afford to pay that to everyone.” Lin then questioned Chou about the bonus rates for office employees and that of employee Jian Ping Chiang. Chou explained that everyone has different nature and scope of work, and that’s why bonuses vary. Lin asked if Chiang’s rate is four out of a thousand. Chou confirmed that amount for Chiang, but asked how Lin had found out about Chiang’s rate? Lin did not answer Chou’s question. Chou then explained why Chiang received a higher bonus than Wu, Lin, and Liu, pointing out Chiang’s 18 years’ seniority, and his ability to speak English and drive a truck, and the fact that Chiang works with clients and sales people. Lin then asked about the office employees. Chou responded that the sales manager received a higher bonus, but that the office staff received the same 0.2 percent as Lin (and Wu and Liu). Lin then asked Chou if he was telling the truth? Chou answered that this is the truth. Chou conceded that he was getting annoyed with Lin’s questioning his veracity in front of other employees. Chou stated, that “Lin was confronting me, but I kept my temper.”

   My findings detailed above, concerning the events of September 29 is based on a compilation of the credible portions of the testimony of Lin, Wu, and Chou, as well as Chou’s affidavit and the affidavit submitted by Wu to the Region. With respect to the latter document, the significant fact continued therein, which I have credited over Wu’s testimony, was that Wu asked Chou if the employees’ bonus could be increased, in view of the increase in business. While Wu did not recall making such a comment during her testimony, I have, based on the circumstances here, credited her affidavit in this respect.

   I find that Wu was most reluctant to testify here, was still employed by Respondent, and felt intimidated to testify on behalf of Respondent. In this regard the record reveals that in preparation for filing its answer to the above complaint, Respondent by Chou obtained affidavits from Wu and Liu in a group setting. In fact the affidavits of Wu and Liu...