Mexican Radio Corp.

National Labor Relations Board - Administrative Judge Opinions

Apr 26, 2017

02-CA-168989 (N.L.R.B. Apr. 26, 2017)

JD(NY)-09-17
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
NEW YORK BRANCH OFFICE
DIVISION OF JUDGES
MEXICAN RADIO CORP.
and Case 02–CA–168989
RACHEL NICOTRA, an Individual
Audrey Eveillard, Esq., and
Joseph Luhrs, Esq. of New York, New York
for the General Counsel.
Dana L. Salazar, Esq., and
Kathleen McAchran, Esq. of East Greenbush, New York
for the Respondent.
Rachel Nictora, Esq. of New York, New York
for the Charging Party.
DECISION
STATEMENT OF THE CASE
KENNETH W. CHU, Administrative Law Judge. This case was tried in New York, New
York on September 13, 27, 28, October 11, 12, November 16 and 17, 2016. Rachel Nicotra, an
attorney, filed the initial and amended charges.
Pursuant to a complaint issued by Region 2 of the National Labor Relations Board
(NLRB) on May 31, 2016 and amended on September 13, 2016, it is alleged that on about
October 5, 2015, the Respondent's employees Tangni Fagoth (Fagoth), Stephanie Garcia
(Garcia), and Nadgie Santana (Santana) concertedly complained to Respondent regarding the
wages, hours, and working conditions of Respondent's employees, by complaining about,
among other things, their work schedules, Respondent's tip policies, and General Manager
Theodora Alfredou's treatment of employees. Further, on about October 29, 2015, the
Respondent’s employees Juliana Palomino (Palomino), Fagoth, Garcia, and Santana engaged
in concerted activities with other employees for the purposes of mutual aid and protection, by
replying to a group email which complained about, among other things, work schedules,
Respondent's tip policies, and General Manager Alfredou's treatment of employees.
The complaint alleges that on about October 30, 2015, the Respondent prepared and/or
issued reprimands to employees Fagoth, Garcia, Palomino, and Santana and subsequently
discharged the four employees on the same date.1
The complaint alleges that the Respondent reprimanded and discharged Fagoth, Garcia,
and Santana because they concertedly complained about their terms and conditions of
employment and to discourage employees from engaging in these or other concerted activities.

1 All dates are in 2015 unless otherwise noted.
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The complaint further alleges that the Respondent reprimanded and discharged
Palomino, Fagoth, Garcia and Santana because they engaged in concerted activity with others
for the purpose of mutual aid and protection in replying to a group email and to discourage
employees from engaging in these or other concerted activities.
The complaint alleges that by the conduct described, the Respondent has been
interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act in violation of Section 8(a)(1) of the Act (GC Exh. 2).2
The Respondent timely filed an answer denying the material allegations in the complaint
(GC Exh. 1).
On the entire record, including my assessment of the witnesses’ credibility3 and my
observation of their demeanor at the hearing and corroborating the same with the adduced
evidence of record, and after considering the briefs filed by the General Counsel, the Charging
Party and the Respondent, I make the following4
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York State corporation with an office and place of business at
19 Cleveland Place, New York, New York, operates a restaurant at 19 Cleveland Place serving
food and beverages to the public, where it derived gross revenues valued in excess of
$500,000. It purchased and received at its New York, New York restaurant, goods and
materials valued in excess of $5,000 directly from points outside the State of New York. The
Respondent admits and I find that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background
The Respondent operates a food and beverage public restaurant. At the time of this
complaint, the Respondent’s corporate office was located in Schenectady, New York and was
operating restaurants in Schenectady, Hudson County and New York City. The Respondent’s
restaurant at issue in this complaint is located at 19 Cleveland Place, New York and has been
opened since 1996.
The Respondent is co-owned by Mark Young (Young) with Lori Selden (Selden) since
December 1, 1999 to the time of this hearing. They are equally responsible for the operation
and decision-making of the business. The co-owners have the authority to hire, fire, suspend,
promote, and to reassign, lay-off and recall employees. The Respondent hired Steve Morgan

2 The exhibits for the General Counsel are identified as “GC Exh.” and the Respondent’s exhibits are identified
as “R. Exh.” Joint Exhibits by the parties are identified as “JT. Exh.” The posthearing briefs are identified as “GC Br.”
for the General Counsel, “CP. Br.” for the Charging Party and “R. Br.” for the Respondent. The hearing transcript is
referenced as “Tr.”
3 Witnesses testifying at the hearing included Tangni Fagoth, Stephanie Garcia, Juliana Palomino, Nadgie
Santana, Mark Young, Lori Selden, John Petrow, and Stephen Eckert.
4 I find that all parties submitted their posthearing briefs on a timely basis.
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(Morgan) as the director of operations on March 16, 2015 through January 1, 2016.5 Morgan
also had the authority to hire, fire, reassign, suspend, lay-off and recall employees. The co-
owners and Morgan work in the Schenectady office and travel as necessary (JT. Exh. 1).
At the time of the complaint, the Respondent’s New York City restaurant (restaurant)
employed approximately 23 workers, with 12 working at the front of the house. The employees
working at the front of the restaurant were the hostess, bartenders, shift supervisors,
waiters/waitresses and the general manager. The wait staff took customers’ orders, served the
food, collected the customers’ payments, and cleaned the tables. The restaurant also employed
“runners” who assisted the wait staff in clearing the finished plates and cleaning the tables. The
first general manager for the restaurant was Michael Mogavero, who left in 2011. John Petrow
(Petrow) replaced Mogavero and continued to serve as the manager until August 2015.6
The Respondent hired Theodora Alfredou (Alfredou) as the general manager on August
5, 2015 through December 19, 2015 to replace Petrow. At all material times, Alfredou had the
authority to hire, fire, transfer, promote, suspend, discipline and lay-off or recall employees (JT.
Exh. 1). Petrow was reemployed to his former position as bartender at an hourly rate of $11
dollars (Tr. 19–25).
Tangni Fagoth was employed as a waitress in the restaurant in August 2010. Stephanie
Garcia was employed as a waitress in April 2010. Garcia was initially hired as a hostess and
was reassigned to a waitress in September 2011. Nadgie Santana was initially hired as a
hostess in January 2009 and was reassigned to a waitress in spring 2013. Juliana Palomino
started working at the restaurant in 2012 as a hostess and reassigned to a waitress in
September 2013.
Tangni Fagoth’s Terms and Conditions of Employment with the Respondent
Tangni Fagoth (Fagoth) worked as a waitress since August 2010 and had also served as
a shift supervisor towards the latter part of 2014. Fagoth testified that her primary responsibility
as a shift supervisor was to record in the restaurant’s daily log of activities during her watch so
that the owners, Morgan and Petrow would know what had occurred on her shift. Fagoth
testified that she served 2 or 3 days per week as a shift supervisor. She would serve as a
supervisor for her entire shift, which was usually from 4 p.m. until the restaurant closed. Fagoth
was also a waitress during her supervisory shifts.
Fagoth said that she had no additional responsibilities as a supervisor other than to
enter the daily activities in the log. In contrast, Fagoth asserted that Petrow continued to
exercise his supervisory responsibilities after Alfredou was hired as the new general manager in
August and Petrow had returned to his bartender position. Fagoth testified that Petrow
continued to deal with the vendors, paid the staff, disciplined and assigned the workers and did
the schedule and assignments of the workers in 2015 while Alfredou was the manager. Fagoth
also stated that Petrow was in charge of the restaurant when Alfredou was not working on
Sundays. Fagoth repined that she never had these additional responsibilities while as a shift
supervisor. Fagoth also maintained that Petrow was assigned six or seven supervisory shifts
while her own shift was reduced to one in August. Fagoth testified that she first noticed a
reduction in her supervisory shifts in the second week of August (Tr. 328).

5 It was not seriously disputed that Lori Selden is a supervisor of Respondent within the meaning of Section
2(11) of the Act and/or an agent within the meaning of Section 2(13) of the Act.
6 Chris Stein was hired for less than 1 month in 2014 and Petrow became the manager again after Stein left.
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Fagoth further testified to other changes when Alfredou was hired. Fagoth said that
Alfredou was rude, loud and cursed at the wait staff in front of the customers and made
discriminatory remarks about her coworkers. Fagoth said that she discussed the disparate and
demeaning treatment of the wait staff by Alfredou with the other servers, particularly with Juliana
Palomino, Nadgie Santana, Noemi Rivera, and Angelica Robleto a day prior to her complaint to
Steve Morgan by email on August 9.7 (Tr. 306–326; 384–387)
Fagoth emailed Morgan at 6:50 p.m. on August 9 to complain about Alfredou (GC Exh.
6b). The email stated
Hi Steve,
This is in regards to the New GM. I understand we have lots of things to take of ASAP
but she is going in all the wrong ways approaching us. She is coming in a very
aggressive way. We have had the same staff for a while and trust me I know we need to
take care of things but there is no reason to be aggressive or disrespectful about it. We
have all being loyal to Mexican Radio, when we didn’t have a manager, when everything
was breaking down, when no one was making money. The least she can do is schedule
a meeting and introduce herself properly and be nice to the staff. If things keep going
this way soon everyone will be leave including me. I will not work at a place where I'm
being spoken down to. Not after everything I've done.
Tangni
It seems that Fagoth then forwarded the same email 2 minutes later to Lori Selden and
copied Mark Young (GC Exh. 6a). Upon further reflection, Fagoth emailed Selden at 11:34 p.m.
on the same date and stated

Hi Lori, I hope you don't take the previous Email to offense. I'm just not happy on the
way she is approaching us and the demeaning way she is speaking to us. I just wanted
to reach out to our human resources guy so he can look into it. Lori I hope you know I
care for the restaurant and I know we need to move forward and for the best and I will
keep doing a good job like I have been.
Tangni
The record does not indicate if Morgan had responded to Fagoth’s email, but Selden
responded in the morning of August 10 and stated to Fagoth that “Not a problem Tangni. I will
speak with Steve today and thank you for letting me know” (GC Exh. 6a).
After the August 9 email, Fagoth sent a second email to Selden with a copy to Morgan
on August 12 and stated that she and other workers spoke to Alfredou on the same day and
Alfredou had apologized for her “rude” behavior and represented to the workers that “it will
never happen again.” Morgan responded on August 13 that he was pleased that “you are all
making process towards coming together as true team in NYC.” (GC Exh. 6c). Selden also
responded on August 13 stating that Alfredou is the new person and trying to resolve
longstanding issues at the restaurant. Selden expressed her appreciation that Fagoth had

7 Noemi Rivera and Angelica Robleto were also waitresses but were not identified as discriminatees in the
complaint.
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reached out to her to let her know how Fagoth felt (GC Exh. 6d; Tr. 402, 403).
This amicable working relationship did not last long. Fagoth testified that her
relationship with Alfredou deteriorated after her August 9 email. Fagoth testified that she met
with Alfredou after sending the email and Alfredou did in fact apologized for her rudeness.
Fagoth maintained, however, that Alfredou became rude again from that point until Fagoth was
discharged (Tr. 446, 447).
On August 14, Fagoth complained to Morgan that her supervisory shifts were reduced
by Alfredou from four to two shifts and given to Petrow. Fagoth complained that “…it seems like
everyone’s schedule is revolving around JP (John Petrow) and I don’t find that fair” (GC Exh.
6e). Fagoth testified that Alfredou told her if she did not like the shift changes, then Fagoth
“could leave.”
Fagoth’s August 14 complaint to Morgan about her reduced schedule shifts had a
temporary positive effect. The record shows that Fagoth’s shifts were increased from one or
two shifts to three or four supervisory shifts the week of August 17 through September 6 (Tr.
389–390; R. Exhs. 2a and 2b).
The August 25 Pre-Service Staff Meeting
Alfredou was hired on August 5. Fagoth testified that Alfredou did not formally introduce
herself to the staff until August 25. Fagoth said that some of the wait staff was sitting around a
table before the beginning of the evening shift. Fagoth identified herself, Annette Polanco,
Angelica Robleto, and a couple of the runners as being presented at the meeting. Fagoth was
not certain if Juliana Palomino and Nadgie Santana were present. Fagoth said that the wait
staff complained that all the shifts were given to Petrow. Robleto complained that her tips
should not be shared with the runners or that the runners should not be given an equal share of
the tips as the waitresses. Fagoth testified that Polanco complained that she was switched from
a bartender to a waitress. Fagoth further testified that Alfredou told the staff that “if you don’t
like it, you can go” and that the changes were instructions from Young and Selden.
Fagoth maintained that Alfredou then criticized the staff. It is alleged that Alfredou said
that Nadgie Santana “looks and sounds like a retard” and was wondering if Stephanie Garcia
was “dead yet” referring to her absence from work due to an illness. Fagoth responded that it
was not nice to judge Santana by the way she looks and her remark about Garcia was rude and
mean. Fagoth testified that after the pre-service meeting, she spoke to Palomino about her
reduced number of shifts. According to Fagoth, Palomino responded that she was not happy
with her reduced work hours but she would keep quiet for fear of losing her job. Fagoth also
stated that she spoke to Garcia over the phone that night regarding the pre-service meeting.
Fagoth stated that Garcia already heard about the derogatory remark about Garcia’s demise
Fagoth ended the conversation with Garcia by stating that the staff was going to get together
and let the owners and Morgan know about Alfredou’s behavior and remarks (Tr. 333–341).
John Petrow (Petrow) testified that he was present at the August 25 meeting when
Alfredou introduced herself to the wait staff. He said that tip pooling has been in place since the
1990’s and the policy of sharing the tips had been determined by the employees. Petrow
insisted that everyone has to agree on the tip pooling system. Petrow recalled a heated
discussion between Alfredou and Robleto over whether the runners should be included with a
full equal share of the tips. Petrow said that an equal share of the tips for everyone except for
supervisors is the restaurant policy although there has always had heated discussion over tip
pooling (Tr. 195–201; GC Exh. 10).
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Stephanie Garcia’s Terms and Conditions of Employment with the Respondent
Stephanie Garcia (Garcia) was employed as a waitress in April 2010. Garcia was
initially hired as a hostess and was reassigned to a waitress in September 2011 at her request
(Tr. 586, 587).
Garcia knew that Alfredou was hired as the general manager. Garcia was hospitalized
in August and was not released from the hospital until August 25 and returned to work 2 weeks
later. Garcia testified that upon her return to work, she realized that Petrow was now bartending
but he had the same duties as in his former position as the manager. Garcia observed Petrow
speaking with the vendors, taking restaurant receipts to the bank, dealing with liquor companies,
dealing with unsanitary restaurant conditions, and handling situations in the kitchen. Garcia
said that she would go to Petrow because Alfredou did not like to deal with the patrons (Tr. 587–
591).
Garcia testified that on the eve of her release from the hospital on August 25, she spoke
to Fagoth because she was aware that there was a pre-service staff meeting on that date.
Garcia was not present at the staff meeting. Garcia testified that Fagoth stated to her that
Alfredou wanted to fire Garcia because she has not been at work. At this point, Garcia decided
to email Selden on August 28 (GC Exh. 7; Tr. 592). The following is an excerpt of Garcia’s
salient points to Selden
Hello
I am writing to you to let you know that I was informed by a few of my coworkers that the
GM wants to fire me. I have been in the hospital for 8 days (sick for 3 weeks) and have
kept her informed as much as I could through text message and she seemed fine and
very understanding. Now I am hearing that she is upset because I did not go to her
personally to let her know that I was sick…I don’t think it is professional of her to go and
tell people that I work with that she is going to fire me before firing Nadgie (Santana)
without speaking to me or giving me a warning and telling them not to tell me about
it…Sorry to bother but I am upset that she is telling everyone about firing me without
speaking to me about it.
Selden replied to Garcia by email on August 28 and thanked her for letting her know
about the situation and that she was sorry for Garcia’s illness. Selden informed Garcia that her
email was forwarded to Morgan and Young. Selden said that Morgan would be at the NYC
restaurant the following day and that she will speak to Morgan before he leaves for New York
(GC Exh. 7; Tr. 607).
Garcia testified that she is not aware of whether Morgan actually spoke to Alfredou
regarding her email. Garcia, however, complained that her work schedule also changed under
Alfredou when she returned to work in early September. She testified that her schedule was
reduced to 1 shift per week from her previous schedule of 2 or 3 shifts per week. Garcia
testified she spoke to Nadgie Santana and Fagoth about her changed work schedule. Garcia,
like Fagoth, believed that their reduced work hours were given to Petrow and the new hires (GC
Exh. 33; Tr. 593, 594). Garcia admitted that her ability to work at Mexican Radio was limited
because Garcia was also working somewhere else during the month of August (Tr. 609).
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Nadgie Santana’s Terms and Conditions of Employment with the Respondent
Nadgie Santana (Santana) was initially hired as a hostess in January 2009 and was
reassigned to a waitress in spring 2013. Santana did not work in July 2015 and returned to the
restaurant in early August after her vacation. Santana testified that Petrow was the general
manager when she left in July and returned to discover that Alfredou was the new manager.
Santana said that Alfredou introduced herself as the new manager by text and immediately
wanted to know Santana’s work availability.
Santana complained that Alfredou reduced her work schedule from three to one shift
when she returned. Santana stated that she returned to work on August 3 and was informed by
Alfredou that she wanted to fire her in order to reduce expenses. Alfredou told Santana that it
was “not personal” when she informed her that she might be discharged. Santana said that
Alfredou mentioned Garcia as someone that might also be fired because of her illness. Santana
testified that she left the meeting in tears and was encouraged by Fagoth and Palomino to talk
with Alfredou again about her employment status. Santana said that she went back downstairs
to speak with Alfredou but there were no change in Alfredou’s position (Tr. 518–524).
Santana said that she emailed Selden that same night to inform her as to the way she
was being treated and Alfredou’s threat to fire her.8 According to Santana, Selden replied that
Morgan will be at the restaurant the following day and she could speak to him. Santana testified
she spoke to Morgan the following day and was informed that Alfredou could not fire her.
Santana also testified that she reduced her school hours in order to take more work shifts.
Santana subsequently made a request to Selden on August 15 to work as a nonpaid assistant
manager to Alfredou under her school’s internship program. Selden replied that it was a great
idea and would work out the details with Alfredou. For the moment, Santana was satisfied
because she was not terminated, her shift increased from one to two, and she now had the
opportunity to intern as an assistant manager (Tr. 560–564; R. Exh. 3).
Santana testified that she also attended the August 25 pre-service meeting and
discussed the schedule changes and tip pooling with Fagoth, Palomino and Alfredou. Santana
stated that she did not work that day, but arrived at the restaurant to attend the meeting.
Santana recalled that the meeting centered over the tip pool and work schedule. She testified
that Fagoth was the one who complained about her reduced work shifts and Angelica Robleto
complained that it was not fair that the runners would now receive an equal share of the tips.
Santana said that Alfredou was insistent that the announced reduced work shifts and equal
sharing of the tips will remain unchanged (Tr. 518–529).
Juliana Palomino’s Terms and Conditions of Employment with the Respondent
Juliana Palomino (Palomino) worked as a waitress in September 2013 to the time of her
discharge. Palomino testified that she was aware that Alfredou was hired as the General
Manager in August but had observed Petrow continue to perform general manager duties, such
as giving supply orders to vendors, ordering alcohol, and setting up work schedules even when
Alfredou was present at work (Tr. 465–468).
Palomino was present at the pre-service meeting on August 25. She testified that the
staff discussed tip pooling and scheduling at the meeting. Palomino complained that she lost a
work shift with the rescheduling. Palomino also complained to Fagoth, Rivera, Netty Polanco,

8 The emails between Santana and Selden were not introduced at the hearing.
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and others about her reduced number of shifts. Palomino recalled that she, Fagoth, Rivera and
Robleto complained that it was unfair that Petrow and the runners received an equal share of
the tips and that the reduced shifts were given to Petrow. Palomino maintained that Alfredou
told the wait staff at the meeting that “If you guys don’t like how things working here, then you
can go look for another job, you can leave.” Palomino testified that she spoke to Garcia over
the telephone that night after the August 25 meeting and told her that Garcia might lose her job
because Alfredou did not have a vacant position for Garcia and then spoke to Fagoth to
complain about her schedule change (Tr. 470–473).
Petrow denied receiving more supervisory shifts when he became the bartender but
admitted that every one of his shifts was a supervisory shift because he could “spell
management or other supervisors.” He was aware that others were upset over his additional
supervisory shifts (Tr. 171–175). On this point, Selden testified that Petrow was still the “go to
person” after hiring Alfredou because of his tenure at the restaurant. Selden said that Petrow
trained the new bartender and that it was alright that Petrow had other duties (Tr. 274–278).
There is no denying that Petrow still continued to have managerial authority in August 2015,
regarding some managerial duties, including granting sick leave and replacing the sick
employee with some other worker (Tr. 185–188; GC Exh. 14).
The Restaurant’s Unsanitary Working Conditions
In addition to the complaints over the reduced work shifts and the equal sharing of tips
with the runners by Fagoth, Santana, Palomino and Garcia made to Selden, Morgan and
Young, the servers complained about the restaurant’s unsanitary conditions.
Garcia testified that informed Petrow in early September of unsanitary conditions
regarding mold in the ventilation system and dirty water dripping onto the tables. Garcia also
reported to Petrow of a mouse that ran across a customer’s table. Garcia maintained that she
informed Petrow because Alfredou refused to take any action to the customer’s complaint about
the mouse. Garcia said that she also spoke to Fagoth about the mouse and believed that
Fagoth may have spoken to Alfredou, who eventually tried to appease the customer. Garcia
also recalled a second incident with a mouse that had died inside the storage area of a
banquette and was emitting a noxious odor. Garcia said that she spoke to Petrow and he
decided to close off a section of the restaurant. Garcia also observed Petrow taking money out
of the cash register and gave the money to a runner to buy some air fresheners (Tr. 594–597).
Fagoth confirmed that the mouse incident occurred in September and that she, Garcia
and Palomino went to speak with Petrow when Alfredou refused to take care of the situation
with the dead mouse. Fagoth also observed Petrow giving money to another employee to buy
air fresheners. Fagoth was also aware of unsanitary conditions in the kitchen. Fagoth said that
Robleto and Palomino told her that the kitchen staff was not wearing uniforms; that no gloves
were provided to them when they were preparing food; and that the stream tables were not at
the correct temperature to keep the prepared food sufficiently warm.
Palomino said that she was aware of the dead mouse inside the banquette and other
unsanitary conditions. Palomino described that the kitchen staff did not have uniforms; that
kitchen towels were being reused by the kitchen staff; and that there were no plastic gloves
provided in preparing the food. Palomino did not speak to any management officials regarding
the unsanitary conditions but did maintain that she spoke to Alfredou and Petrow about the
dead mouse. Palomino said that Alfredou refused to do anything about the dead mouse, but
she did observe Petrow give money to another employee to buy air fresheners (Tr. 499–501).
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Fagoth indicated that Palomino told her that they needed to make Morgan aware of the
unsanitary conditions. Fagoth agreed to prepare a list of items that they could present to
Morgan. Fagoth said that she conferred with Palomino, Garcia, Santana, Robleto and Annette
Polanco in preparing her list of complaints. Fagoth recalled that the list included the unsanitary
working conditions, the equal sharing of the pooled tips with the runners and Petrow, the
derogatory remarks that Alfredou made to Garcia and to Santana, their reduced work shifts,
mouse droppings and the unkempt bathrooms that could not be used (Tr. 342–350).
Garcia testified that the list was put together over the telephone the night before Morgan
was supposed to be at the restaurant. Garcia recalled some of the listed items to include no
tissues in the bathroom, no gloves for the kitchen staff and mice in the restaurant (Tr. 597, 598)
Santana was also aware of the unsanitary conditions in the kitchen. Santana said that
she stopped eating her meals from the kitchen because the prepared food was not kept at the
correct temperature. Santana said that she had spoken to Fagoth, Palomino, Garcia, and
Rivera about the unsanitary conditions (Tr. 530, 531).
Fagoth said that Polanco overheard Petrow saying that Morgan was going to be at the
restaurant the following day after the list was prepared. Fagoth could not recall the specific date
in September when they met with Morgan. Fagoth said that Polanco signaled her when Morgan
arrived at the restaurant in the late afternoon and she, along with Polanco and Robleto went to
speak to Morgan. Fagoth said that Polanco was the spokesperson and mentioned everything
that was on the list to Morgan. According to Fagoth, Morgan physically took the list and said he
would look into the situation (Tr. 349–352).
The October 5 Meeting
The wait staff was informed that there would be Point of Sales (POS) training with a new
system for ordering food and keeping track of food items being ordered at the restaurant. The
POS training was scheduled for October 5 with Young and Morgan in attendance for the
training.
Fagoth, Santana, Palomino, and Garcia believed that Selden, Young and Morgan took
no action in their complaints about Alfredou and they saw no improvements over the unsanitary
conditions in the restaurant. Fagoth testified that she spoke to Palomino, Rivera, Santana,
Robleto, Polanco and Garcia the night before October 5. She told them Morgan and Young will
be attending the training and that this would be an opportune time to speak with Young and
Morgan over their concerns because nothing seems to have been accomplished with their list of
complaints that was previously given to Morgan.
Fagoth testified that they agreed to meet at a coffee house near the restaurant before
the training to discuss what they were going to say to Young and Morgan. Fagoth testified
some of the people that she spoke to the night before were able to attend the meeting, including
Robleto, Garcia, Santana, Polanco and Alex Armstrong. Fagoth said that a second list of
complaint items was put together at the meeting. Fagoth said that Polanco did some research
on the topic of equal share of pool tipping with the runners, which they were going to present to
Young.
Fagoth testified that she approached Young after the POS training and asked to speak
to him. Fagoth asked that Alfredou also be present when they speak, but Young suggested that
it was not a good idea to have Alfredou present and that the group should meet somewhere
other than the restaurant. Fagoth agreed and she, along with Garcia, Santana, Polanco,
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Robleto and Rivera met with Young and Morgan at a coffee shop (Tr. 352–356).
According to Fagoth, Polanco spoke about the tip pooling and said that it was unfair to
share 100 percent of the tips with Petrow, who everyone believes is still a manager and with the
runners. Santana then spoke about how Alfredou was referring to her as a mental retard and
that Alfredou wanted to fire her. Santana thought that this was discrimination. Fagoth
complained to Young about her reduced number of shifts. Fagoth said that they did not want to
cause any trouble and that they did not want to leave Mexican Radio. Fagoth testified that
Young wanted people to be happy working at the restaurant. Robleto’s suspension was
mentioned during this meeting. Young immediately ended Robleto’s suspension and agreed to
look into the other complaints9 (Tr. 356–358).
Santana was also at the meeting with Young and Morgan on October 5. Santana
informed them of the unsanitary conditions, her adverse treatment by Alfredou, and her
objections to the equal sharing of the tips with Petrow and the runners. Santana also told
Young that it was unfair being targeted by Alfredou. Young promised to speak to Alfredou about
her treatment of Santana. Santana maintained that she saw no improvements after this
meeting (Tr. 531–535).
Garcia testified she met with Young and Morgan after the POS training. Garcia recalled
that the group discussed the unsanitary conditions and that it was unfair to share equal tips with
Petrow, who they believed to be a manager. She also recalled Santana complained about
being bullied and discriminated by Alfredou. It was Garcia’s belief that Young was “brushing off”
Alfredou’s treatment of Santana, but that he did not wanted the staff to be unhappy and
promised improvements. Garcia repined that nothing changed after the meeting (Tr. 598–601).
Young testified that the group met with him and Morgan after the POS training. He
stated that Fagoth initially approached him to meet with the group. Young indicated that he was
not aware of the purpose for the meeting but was always willing to talk with his workers. Young
testified that Fagoth, Polanco, Robleto, Garcia, Santana and Palomino were present at the
meeting. He said that each of the servers expressed their anger towards Alfredou regarding her
treatment of the waitresses, especially with Santana. Young also recalled that Polanco
complained about the dirtiness of the bar area. He insisted that no complaints were made about
the equal sharing of the tips with the runners and Petrow. He did recall that the group was
unhappy with their schedules. He did not recall the group had complained about unsanitary
conditions (Tr. 70–73; 623–630).
Complaints made to the New York City Health Department
With the belief that nothing changed after the October 5 meeting, several of the servers,
namely Fagoth, Palomino, Santana and Garcia, decided to elevate a resolution with the
restaurant’s unsanitary conditions by contacting the New York City Department of Health and
Mental Hygiene (Health Department). Each of the named servers discussed among themselves
before they individually complained to the Health Department.

9 Robleto did not testify at the hearing. Young testified that Robleto was a bartender and suspended on October
2 because she had Santana cover for her absence without informing the general manager. After Robleto
complained at the October 5 meeting, Young and Morgan agreed that the suspension was excessive and reduced
her suspension to time served (R. Exhs. 1 and 4; see also testimony of Young at Tr. 111).
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Palomino spoke to Fagoth, Rivera and Garcia before filing a complaint with the Health
Department. Palomino testified that the second floor bathroom was still filthy and not
operational, that there continued to be mice infestation in the dining area, mold in the ventilation
system and in the soda machine nozzles, and that the kitchen staff still did not have uniforms or
gloves (Tr. 480–482).
Fagoth spoke to Santana, Palomino, Garcia and Rivera before she called the Health
Department on October 14. Fagoth said that the dead mouse was still inside the booth and the
stream table to keep the cooked food at the correct temperature was still inoperative (Tr. 361,
362).
By letter dated October 15, the Health Department informed the Respondent that a
complaint had been filed regarding mold in the bar area and in the basement and that the
workers complained of chest pain and headaches when in the basement. The letter required
the owners to correct the problems and a health inspector may be assigned to investigate if
further complaints are received (GC Exh. 25a).10
It is not clear from the record whether the initial unsanitary conditions noted in the Health
Department letter were resolved by the Respondent. Nevertheless, there were subsequent
complaints to the Health Department after the October 15 letter. Garcia testified that she filed
her own complaint with the Health Department on October 21 after speaking to Fagoth. Fagoth
mentioned to Garcia that she had already called the Health Department (Tr. 599–601).
There was a health inspection at the restaurant on October 21. The restaurant’s daily
log is prepared by management or a shift supervisor assigned during that day. In the comment
log, Petrow indicated that the inspection occurred after three complaints were received that
“appear to have been written by a staff member (or one time staff member).” The inspector
found mouse dropping and threatened to close the restaurant, but Petrow convinced the
inspector to keep the restaurant open after he indicated that the staff was aggressively attacking
the unsanitary conditions (GC Exh. 12).
Santana said that she also called the Health Department after speaking to Fagoth,
Garcia, Palomino and Rivera, among others. Santana did not indicate when she made the call
to the Health Department. Santana was not aware when the health inspection occurred but
testified that Petrow told her that he was upset because “we did bad (in the inspection)” and “I’m
going to find out who did this” (Tr. 534, 535).
Garcia testified that she was at work on October 21 during the inspection, but was not
certain when the inspection actually occurred. She said that Petrow came over to her, Fagoth
and another worker while they were counting the tips at the end of the day. Garcia was asked
by Petrow if she knew what had occurred and Garcia responded if he was referring to the
inspection. Petrow answered in the affirmative and mentioned the inspection regarding the
mold infestation. According to Garcia, Petrow believed that a former or current worker was
responsible for the complaint to the Health Department and said that this was “harassment
against the owners”11 (Tr. 601–603).

10 The inoperative steaming table, mold and mice infestations were problems recognized by Alfredou as early as
October 2 when she complained to Morgan, Selden, Young and Petrow that everyone was getting sick from a
stomach virus after Morgan had inquired why restaurant sales were down during the week (GC Ex. 24).
11 Petrow was referring to Robleto, who was terminated 3 days prior to the Health Department’s complaint of
October 15 (GC Exh. 3). In an email dated October 23, Alfredou also believed the complaint could have been filed by
Robleto or a current employee (GC Exh. 25a).
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Fagoth testified that she was present the night of October 21, but did not work during the
day when the inspection occurred. Fagoth testified that she received a text message on her cell
phone from Petrow. Fagoth did not recall when she received the text from Petrow. Fagoth said
his text read “The fucking Health Department is here.” Fagoth responded by texting “wow.”
There were no further communications after the second text message was sent (Tr. 361–364).
Fagoth believed that the conversation with Petrow over the inspection occurred on
October 23 and not on October 21 (as testified by Garcia). Fagoth worked the evening shift on
October 23 and was counting the tips with Garcia and another worker when approached by
Petrow.
According to Fagoth, Petrow said that there was no longer a rodent problem, but
complained that the Health Department was still investigating the mold infestation. Fagoth
further testified that Petrow stated (Tr. 361–366)
Whoever is calling the Health Department is harassing the owners. I will find out. We
will find out. We have says of finding out who called the Health Department and they’re
going to pay. We have ways of finding out.

Petrow testified that he was present on October 21 during the health inspection of the
restaurant. Petrow believed that the complaints filed with DOH were based upon information
that only management or a former or current staff would be aware of. Petrow said that he was
aware of complaints over reused towels and mouse droppings. He said that the restaurant was
cleaned for reinspection after initial inspection. He did not believe that Fagoth had filed the
complaint because she was still working there. Nevertheless, he believed it was harassment
(Tr. 177–182; GC Exh. 13).
Petrow insisted that the restaurant always had mouse droppings and was not alarmed
that a mouse was in the restaurant. Petrow did not believe that discipline was taken against any
of the servers for reporting the unsanitary conditions because it’s a problem that needed to be
fixed and would not be grounds for discipline (Tr. 191–194).
Nevertheless, Alfredou was not happy with the health inspections and was relieved that
the inspection did not uncover the mold infestation. Selden was also unhappy about the
complaints and believed the complaints were filed by a disgruntled employee and expressed her
urgency to Alfredou, Morgan and Young to find those responsible for the complaints and have
their attorney to file a “cease and desist” order against the complainers (GC Exh. 25C).
The October 29 Email from Annette Polanco
Annette Polanco was previously employed as a bartender/server with the Respondent’s
New York City facility from June 2015 until her resignation about October 29, 2015 (Tr. 42,
43).12 As noted above, Polanco had actively complained about having to equally share the tips
with the runners and Petrow. Polanco also complained about Alfredou’s rude treatment of the
servers and her discriminatory remarks toward Santana and Garcia. Upon her resignation,
Polanco wrote an email to several workers including Garcia, Robleto, Rivera, Fagoth, Santana,
Palomino and others. Polanco also included Young, Morgan, Selden, Alfredou and Petrow in
the same email (GC Exh. 5A). Her email was sent at 12:21 p.m. on October 29. The email

12 Polanco did not testify at the hearing.
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stated
Let me begin by saying this is something I never thought I would he doing with an
employer, pulling no call no show. It truly does break my heart. Given my amazing work
ethic, I never thought would find myself in such position. Fortunately for me, when I
came to work at your establishment, I came after being told by a friend, that her very fun
job was looking for a bartender for a few nights a week, not because I needed the job. I
came to Mexican Radio to fill in a couple days in my week and when interviewed I was
asked by John if I even wanted to work there, as I was used to working in places with
much more volume. I told him I didn't care, because he too made it sound like such an
amazing place to work. I ended up loving it so much I made it my priority and went part
time at another place where I was at. For the first time in almost two decades, I stayed at
a job that paid me pennies compared to what I was used to making, because it was such
a pleasure to be working there. Everyone was so close and quickly everyone became
like family. l came in there ready and wiling (sic) to help the place in every way I could,
even requesting social media access to update more frequently than yearly, as you guys
were not posting anything at all. I completely took apart that disgusting bar and made it
shine, without anyone asking me to. Every Sunday and Monday I would take it upon
myself to give myself cleaning projects to keep it clean, even polishing your wine
glasses, snifters, and martini glasses WEEKLY, Again no one told me to do any of it. I
genuinely cared about the conditions of a bar I planned on helping bring business to
because I saw the potential it had. I had asked Steve and John for their help several
times with my ideas.
Fast forward a bit and you guys make the decision to bring in an uncivil, uncouth,
disrespectful, vulgar, manipulative tyrant, who has absolutely no sense of respect for
others and deserves absolutely none back. Now as a business owner myself, I have to
believe that this has to be a business plan. A 6 month cleanup of your NYC location,
where you bring someone that has no clue what they are doing with the FOH, or BOH
for that matter, to do all your dirty work before you shut down your location, I mean why
else would you be trying to "cut costs", yet here you are paying someone $1300 a week
to do spreadsheets and now she needs an assistant because she can't work so many
hours or close. Probably because she is still hanging on to her evening waitressing job,
that she admitted to still having very recently. You've got to be kidding me. You cut the
hours of your loyal kitchen staff after not paying them overtime for so many years and
just paying them a little hush money, from what I have been told. Yet now that you are
forced to pay overtime you refuse to even schedule them their over time, ultimately
screwing with their livelihood. There is no way l can believe someone, with the business
savvy to have 3 locations open, can make such crass business decisions for their “first
born". It has to be a Donald Trump business move to wipe the slate clean, in my
opinion.
Theo came in with an agenda. To clean house. Sadly for her, her aggression was met
with resistance and a strong alliance and will always continue to do so because she is
completely tactless. I've witnessed first and how she pretty much degraded the poor old
man who had your business with the linen for so many years. She spoke to him so ill,
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he had to ask to speak to John and she very bluntly told him, "You no longer speak
John, you deal with me only. Work on bringing this price down, because I have friends in
the business that can do much better." Obviously that couldn't have been the case
because we still have no napkins since the linen company dropped us as they refuse to
deal with her, as did our tortilla company. I guess her friends in high places could do
nothing for her. Ultimately it trickled down to how she speaks to your guests as well, I
mean the ones she actually goes to. She pretty much refuses to do table visits because
"those are not the people she wants coming back anyway." When she does make it to a
table she is so unprofessionally rude, one table said they felt they were on hidden
camera. We brought up this particular incident to not only Steve, but Mark as well.
When we had our first official new GM meeting, after Theo had already come in and
completely changed everyones (sic) schedules and told us all directly she cannot do
anything about it because John had requested to work those days. We brought up the
runner tip out situation. I was not aware that we had our runner in the pool 100% until
she scheduled me on my first floor shift, that Tuesday. I've been in this business since I
was a teenager and never ever have I heard of that. I immediately told John l was not Ok
with that AT ALL. l don't disagree that our runners work very hard, but it is NOT our
place to pay their salary! The only people benefiting front that situation is Mexican Radio.
When this was brought up to her, as the new GM, her VERY HOSTILE (she even got up
from her chair to make her tyrant point) solution to the situation was that she would
prefer to fire us all and keep the runners working, than to come to a solution for the tip
out. Right there and then, losing any ounce of respect I could've had for her. We Naively
(sic) told Steve all of our concerns from day one and he did absolutely nothing. It is
obvious, to me, that unfortunately, your staff has been a bit ignorant about their rights,
but allow me to inform you, that I have been schooling them, as a decent business
owner that knows what I cannot and won't ever do to my employees, and that you most
definitely cannot do to yours. Now by law, it is very inappropriate for us to be pooling tips
with someone who has any say in what goes on in that restaurant, ESPECIALLY
scheduling. Whether John wants to admit it or not he has a high management position
at Mexican Radio and would be in his best interest to remain "neutral" to our faces when
he is benefiting no matter what. I wouldn't be surprised if he is just being paid to keep
shut and be an obedient minion, because I see no other reason for him not to stand up
for his staff, or rather "former staff" who he KNOWS is absolutely amazing! I have been
patient and always brought our concerns immediately to him us well, Obviously, our
concerns were not even acknowledged.
When the Tequila club and specials were first brought to our location, I was on top of
them. Handing in memberships for almost every guest who came to the bar. Everyone
else was making sure to push them to the tables and the specials were going like crazy,
because everyone actually cared. Lori, you have expressed to Theo how we arc 'Los
ninos from hell" because we no longer sign up guests for tequila clubs or sell specials,
as we did with no problems before. Crazy that I have to even be telling you this when
you own 3 restaurants, but if one is being treated condescendingly and like a second
class citizen, don't expect people to do more than what their job requires. It is very
unfortunate that you had people that cared about your establishment and now because
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of you, Theo, and even Steve (for looking the other way when we voiced our concern
from the very beginning), despise the place.
A little lesson from life, you reap what you sow.
It is obvious to me, Lori, that you conduct business in 3 very fraudulent way. I recently
saw an email from you, asking Theo to forge a write up for Jeremy, to avoid paying
unemployment, and Theo agreeing. Is this how you run your businesses? Are you really
that disgustingly greedy?? Just know that even if deleted, things like that always have a
way of coming back up. Always. You have NO LOYALTY to even your most loyal
minion, John, and l feel sorry for him...stuck having to deal with you. Trashing him in
your emails with your new GM. How fucking dare you, knowing your own unscrupulous
business practices, allow her manipulating self to treat your staff in the manner she
does. John must know a whooooole lot because the way you speak about him, is as if
he is a nuisance you don't around, but you can't do much about it because he knows too
much, again giving more fuel to my thoughts on him being paid off to just hush. Steve
was made aware from the beginning the discrimination against Nadgie, and even after
bringing it up to Mark, nothing was done. After sitting back and just observing these past
few weeks I have to say that I still think this is all a plan to shut down right before the
year ends to write it all off. I wouldn't be surprised if you forge (sic) your sales with the
IRS and the new POS system is just to cover up the fraud. Just remember though, as I
stated previously, things like that always have a funny way of surfacing.
Let it be known that I have personally witnessed Stephen being discriminated against
because of his MS, by your new GM. She has gone as far as asking, several, if not all of
us, if she should just fire him due to the liability he can potentially be. I have no problem
testifying on his behalf if it boils down to it. This was also mentioned to Steve when it
happened, in the beginning. If you think only ex-employees are a problem for you, you
are in for a big surprise. Let me reiterate, I have been schooling the staff on their rights
and how they are being completely violated, even more now with your new GM. Her
arrogant sloppiness will be much more costly than the change you are trying to save by
screwing over your employees and the change you save lowering the quality of the food,
which is suffering. So many people have complained it's ridiculous, especially about the
vegan cheese changing. Which she actually wouldn't even admit she changed, as if we
vegans don't know the difference.
I am not only sending this email to the owners and management, I am sending this to the
entire staff so that they know, they should stand up for their rights and that I, will help
them with the process. Please note staff, it is ILLEGAL for management to intimidate you
or try to talk you out of contacting the Department of Labor, if you really wanted to make
this place work, Lori, you would have hired someone to come in to provide structure,
which I admitted we needed and voiced it to Steve when I first met him, but that treats
your staff with dignity and the gratefulness they deserve. Although after reading your
emails, I can see how despicable you are (2 seconds after meeting Mark, I could see he
was the ONLY good thing in your life.) Instead of hiring someone to work with us„ you
hired someone who makes discriminating decisions because she is so emotionally
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charged, she can't help it. Maybe if she can stop hiring porters with her vagina, we can
get one that is worthwhile. Are you aware that your GM opened Angelica's check and
then poked fun at her finances with the kitchen? I am sure you are aware by now, but
do not care. I am sure you understand the legality of that as well.
I am positive since I stopped cleaning the bar several weeks ago, it is back to its
disgusting state. Sink is back to being black and the soda gun back to being moldy. I got
tired of caring for a place more than the owners did. I got tired of doing it for people that
didn't even appreciate it, I hope your staff does what needs to be done and they stand
up for what they deserve. I will diligently try to help them in any way I can. If your plan is
to shut down Mexican Radio NYC and turn your entire staff against you, you are very
much succeeding.
Netty
The workers named in paragraph 6(c) of this complaint all responded in a positive
manner to the email. Their responses to the email were sent to Polanco and to everyone listed
in Polanco’s email, including Young, Selden, Morgan and Petrow.
Fagoth responded to the email on October 29, approximately 1 hour later. Fagoth stated
“Wow Anette, gracias. Thank you for standing up for us. We will miss you” (GC Exh. 5B).
Fagoth testified that Polanco’s email was an “accurate reflection” of the situation at the
restaurant (Tr. 366, 367).
Garcia responded approximately 1 hour later to the email and stated “Just finish reading
and I agree. Sad that things have to be this way” (GC Exh. 5A at 1). Garcia testified that she
agreed with the contents of the email (Tr. 603, 604). Garcia testified that she spoke to Fagoth
and Santana over the contents of the email before she sent out her response. Garcia said that
Fagoth agreed with the email and Garcia responded that she will also respond in agreement
with the email. Garcia said that Santana also agreed to the email and Garcia said she would
reply in the affirmative to the email (Tr. 609, 610).
Santana responded at 2:21 p.m. on October 29 and stated “I’m glad you said what you
felt was right. I understand your point of view 100%. Thanks you for being voice for us all” (GC
Exh. 5C). Santana testified that her response was a true and accurate statement of the
situation. She had discussed the email with Fagoth before sending out her reply. According to
Santana, Fagoth said Santana should respond because of the manner she was spoken to (by
Alfredou). Santana believed that all the servers felt the same way as to what she wrote in her
response (Tr. 535, 536).
Palomino responded at 1:31 p.m. on the day of the email and stated “I agree a 100% as
well” (GC Exh. 5D). Palomino testified that she agreed with the email and especially in regard
to the uncorrected black mold in the soda nozzle at the bar (Tr. 481, 482). Palomino stated that
she never discussed the contents of the email with anyone before or after the email was sent
out (Tr. 505–507).
The owners were taken by surprise at the content of the email. Young and Selden were
also surprised that the other workers had responded in agreement with the email. Young
testified that the email was hurtful and mean spirited (Tr. 42–48).
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Young testified that he spoke to Morgan, Petrow, Selden and Alfredou after receiving the
email. Young discussed with them regarding several possible courses of action, including the
termination of employees. Young decided to visit the restaurant with Selden and Morgan on
October 30.
Petrow confirmed that he received a phone call from Young. Young asked Petrow if he
had read the email from Polanco and that they (Young, Morgan and Selden) were coming into
the city the following day (Tr. 151–153).
Selden testified that she was “stunned” by the contents of Polanco’s email. She did not
understand what was happening so she spoke to Morgan. Selden viewed the email as “deeply
insubordinate” and viewed the responses from the servers as supportive of the email. Selden
said that the contents of email were “extremely insulting” and “deeply insubordinate.” Selden
viewed the responses from the servers as being “deeply concerning” (Tr. 225–229). Selden
confirmed that she visited the New York restaurant on the following day with Young and
Morgan.
Young testified that Alfredou was present when they arrived and also observed Santana
working the floor. Young informed Alfredou that they wanted to meet with the servers in the
basement office on an individual basis. Young wanted to know what had happened to their
working relationship, why and how it got damaged and the reasons they were angry with
management. He also wanted to know if they were still supportive of the email. Young said that
Morgan, Selden and himself would be interviewing the servers (Tr. 48–51).
Selden testified that they had planned to speak individually with each of the wait staff.
She confirmed that only Santana was present when they arrived. Selden’s purpose for the
interviews was to discuss with the servers as to what was going on (Tr. 229–232).
The Discharge of Tangni Fagoth
Santana testified that she observed Morgan, Young and Selden arriving at the restaurant
in the afternoon. Her work shift had ended at 4:30 p.m. and was instructed by Alfredou to go
downstairs and speak with the owners and Morgan. Santana was too nervous to immediately
go and informed Alfredou to give her a moment before going downstairs (Tr. 536–539). At this
point in time, Fagoth arrived at the restaurant to begin her evening shift.
Alfredou then told Fagoth to meet with the owners. Fagoth believed that the interview
with the servers was over the email because of the closeness in time between the email and
their arrival. Fagoth believed that the owners intended to fire some of the workers over the
email and because she was outspoken over the sharing of the tips. Fagoth insisted on having a
witness and requested that Rivera accompany her to the interview. Rivera had not yet arrived
at the restaurant, but Alfredou agreed that Rivera could be a witness. However, shortly
thereafter, Morgan went upstairs and instructed Fagoth to attend the interview without Rivera
(Tr. 369–372).
Fagoth testified that she was asked by Morgan regarding the email and told her that the
contents of the email were not true. Fagoth disagreed with Morgan and Morgan responded by
stating that if that’s her response with the email, then it was “insubordination” and “it’s
unfortunate that it has to be this way but you are being fired for insubordination.” At this point,
Young agreed with Morgan and Fagoth left the meeting and went upstairs (Tr. 373, 374).
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Young said that Fagoth was the first to be interviewed over the contents of the email.
Young was informed that Fagoth wanted to meet collectively and was told no. Young said that
Morgan did most of the talking and had asked Fagoth about the email. Fagoth responded that
you (referring to Morgan) “did absolutely nothing” and said Alfredou “didn’t do anything” to help
the wait staff. Young agreed that Fagoth was not contrite and had stood by the statements in
the email. Morgan told Fagoth that if that is her position, “I don’t think you can work here any
longer” or words to that effect. Fagoth then left and was subsequently fired. Young stated that
Fagoth was terminated for insubordination (Tr. 51–55).
Fagoth was the only one interviewed over the email on October 30. Fagoth testified that
Palomino asked what had happened after she went upstairs to get her belongings and use the
restroom. Fagoth replied that she was fired. Rivera finally arrived as Fagoth was walking out of
the restaurant and she asked Fagoth what had occurred. Fagoth again replied that she was
fired. Fagoth asked that Rivera go outside of the restaurant with her so that they can say their
farewells. Fagoth testified that Young appeared at this point and demanded that Rivera give
him the keys to the restaurant.13 Rivera gave her keys to Young and was told by Young that
“You girls are no longer welcome” (Tr. 375–378).
Petrow testified that he was at work on October 30, 2015 at around 4 pm. He stated that
the management team was already at the restaurant and observed Steve Eckerd working the
bar area. Petrow said he also observed Fagoth arrived to work around 4:30 and observed her
go downstairs to talk with management. Petrow said that while Fagoth was downstairs, he
observed Palomino arrived for work. The next thing Petrow noticed was Fagoth coming up the
stairs and talking with Palomino. He did not know what they spoke about.
Petrow also saw Rivera arrived at work at this point and observed Fagoth and Rivera
leave the restaurant with Palomino following them. He said that Santana remained in the
restaurant because she was working the day shift that ends at 5 p.m. (Tr. 153–155).
Selden recalled Morgan asking Fagoth why she supported the email. Morgan did
referenced insubordination in referring to Fagoth’s agreement to the email. She also recalled
Fagoth replying that “You don’t do and haven’t done what we want.” Selden said that Fagoth
did not specifically reference specifically what it was that the servers wanted done. Selden then
said that Morgan replied we will have to let you go (Tr. 233–237).
Young testified that he followed Fagoth upstairs. He was under the impression that
Fagoth had the keys to the restaurant.14 Young said it was reported to him that Fagoth told the
staff that she was being fired for agreeing to the email and he wanted to assure the others that
was not the case.15 Young saw Fagoth leaving the restaurant and observed Rivera coming in
at the same time. Young believed they exchanged words but did not hear what was said. He
observed them walking away from the restaurant. Young said he knew that Rivera also had a
set of keys and went outside to retrieve them from her. Young asked for the keys and Rivera
handed him the keys. Young maintained that no other words were exchanged other than asking
Rivera for the keys. Young denied asking Rivera where she was going or if she was coming

13 Rivera was a shift supervisor for that night and had a set of keys to close the restaurant.
14 Fagoth testified that her set of keys were taken away from her the night before by Alfredou.
15 Young learned that some employees, including Steve Eckert, Bernardo Soso, thought they would also be
fired. Young subsequently explained to them they would not be fired for receiving the email. He said that he was
sorry about the incident and sorry about the email. He assured them that he was not closing the restaurant and was
not going to fired Eckert (Tr. 60–64).
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back to work her shift and said he never told Rivera that he wanted to speak with her. Young
testified that Rivera has not returned or worked at restaurant since that day (Tr. 55–58).
The Discharge of Juliana Palomino
Palomino testified that she arrived at work on October 30 at 5 p.m. Palomino had agreed
to be Fagoth’s witness at the meeting because Rivera was running late. Palomino observed
Morgan coming upstairs and instructed Fagoth to attend the interview and refused her request
for a witness. Palomino was also told by Alfredou that the owners wanted to speak to her.
Shortly thereafter, Palomino met Fagoth coming upstairs and inquired as to what had occurred.
Fagoth told Palomino that she was fired. Palomino testified that Morgan came upstairs shortly
after she spoke to Fagoth about her termination. Palomino stated that Morgan instructed her to
go downstairs and she refused. Morgan then asked Palomino to sign some paper and she
again refused. It is alleged that Morgan then stated to Palomino “Okay. So you’re fired.”
Palomino confirmed that Young appeared and demanded the keys from Rivera when
she left and met Fagoth and Rivera outside the restaurant. Palomino, Rivera and Fagoth waited
until Santana finished her shift and they all met up afterwards at a drug store. Palomino said
that no one from the Respondent contacted her after October 30 (Tr. 482–485; 511–515).
Young testified that he saw Palomino walk outside following Fagoth. Young said that
her shift was not over, but she did not return to work. Young did not inquire as to where
Palomino was going or if she was going to return to work. He denied telling Palomino that she
would not be fired (Tr. 59, 60).
Young said that Palomino was terminated for walking out and not speaking to them
about the email. Young insisted that Palomino was not terminated for responding to the email,
but rather for not speaking to them on October 30 and for abandoning her position when she
walked away with Fagoth and Rivera (Tr. 68–70).
The Discharge of Nadgie Santana
As already noted, Santana was too nervous to meet with the owners on October 30.
She related her nervousness to Alfredou and Fagoth took her place to meet with the owners.
After Fagoth met with the owners and told Santana that she was fired, Alfredou told Santana
that she was next to go downstairs. Santana was too nervous to go and informed Petrow of the
same. According to Santana, Petrow told her that she could go home and take the weekend off
because she was feeling ill.
Santana did not work the following day and texted Alfredou that Petrow approved her
weekend off. Santana said that she never received a response from Alfredou. Santana also
texted Petrow, who confirmed by a reply text that it was alright for her to take the day off (Tr.
535-546; GC Exhs. 35 and 36).
Santana subsequently received a phone call from Morgan, which was recorded from her
phone on October 31.16 The voice message from Morgan stated that they had tried to speak to

16 The audio CD of the recorded conversation was made part of the record. I provided counsel for the
Respondent an opportunity to review the transcription of the recording with the audio CD. The counsel for the
Respondent agreed that the transcription in GC Exh. 37 is an accurate reflection of the audio conversation between
Santana and Morgan except for some minor deviations (Tr. 544–547).
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her the day before and that she refused to talk with them and left the restaurant. Morgan also
noted that Santana did not arrive at her scheduled shift on Saturday (October 31) and assumed
Santana did not want to work for the restaurant any longer because she refused to speak to
them and did not arrive at work the following day. Morgan then stated that Santana “don’t have
a job anymore so you don’t need to come back” (GC Exh. 37).
Santana called Morgan back after hearing his voice message on October 31. Her phone
conversation was recorded by Santana. In summary, Santana protested that she abandoned
her job and reiterated that she informed Alfredou of her absence and that Petrow had approved
her day off. Santana also stated to Morgan that she did not agree with Polanco’s email and only
responded that she understood what she was saying. Santana also stated that she felt targeted
and discriminated by Alfredou. Morgan replied that it was wrong that Santana agreed with the
email, the contents were untrue and management will not tolerate people working in the
restaurant that had agreed with the email. Santana again insisted that she did not agree with
the email but nevertheless, Morgan felt that she was being insubordinate and “refused to do
things.” Santana stated that she never refused but was fired anyway (GC Exh. 37C).
Petrow testified that Santana approached him and she seems upset and nervous.
Petrow related that Santana said she was having an anxiety attack over having to talk with
Morgan, but did not recall if she mentioned Young and other managers. Petrow said that
Santana wanted to go home. Petrow agreed and told her to go home (Tr. 155). It is undisputed
that Santana texted Petrow the following morning and asked to take the weekend off. Petrow
responded that it was alright for her to take the weekend off (Tr. 160, 161).
Selden testified that the management team was unable to speak to Santana after her
shift. She said that Santana refused to come downstairs to meet. Selden was told by Alfredou
that Santana had a panic attack and left after her shift was completed. Selden was aware that
Santana was scheduled to work on October 31 on the 5:30 p.m. shift. She was also aware
afterwards that Santana had texted Petrow about not coming in. Selden insisted that Santana
was not terminated for failing to arrive at her shift, but for refusing to come downstairs to speak
and instead, she left the restaurant. However, Selden also admitted that Santana was
discharged over insubordination in agreeing with the email, walking off the job, which she
considered as job abandonment (Tr. 237–244; GC Exhs. 18 and 19).
Young testified that Santana was terminated for a no call/no show on October 31 and
insubordination for refusing to speak with them on October 30. However, Young subsequently
indicated that Santana was also terminated for insubordination for responding to the email (Tr.
65–68).
The Discharge of Stephanie Garcia
Garcia testified that she was not at work on October 30. She received a phone call from
Fagoth and was informed that Fagoth was fired for agreeing to the contents of the email.
Garcia said that Fagoth believed she was fired for being insubordinate. Garcia was scheduled
to work the evening shift on October 31. Garcia received a phone call from Santana before
leaving for work that day. Santana informed Garcia that she was fired and played back the
voice conversation she had with Morgan. Santana informed Garcia that Morgan was adamant
that he did not want anyone working at the restaurant anymore if they had replied in support of
the email. Garcia testified that she never returned to work from that day based upon her belief
that Morgan in the voice recording was also referring to her because she had agreed to the
contents of the email. Garcia said that she never heard from any management official after that
day (Tr. 603–606).
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Young testified that Garcia was terminated for a no show to work on October 31 for the
5:30 p.m. shift. He was not aware if anyone in management attempted to call her. Young
insisted that Garcia disappeared and was not terminated for insubordination. Young never saw
her again. Young said that Garcia was eventually terminated for no show after not hearing from
her. However, an affidavit provided by Young pursuant to a charge filed with the EEOC stated
that Garcia was terminated for insubordination as well as not reporting for her shift (Tr. 65–68).
The Reprimands to Justify the Discharges
Each of the discharged workers was issued a reprimand memorializing the reasons for
their termination.17 Selden was unsure if Alfredou or Morgan had authored the first set of
reprimands. She was also not certain that she recognized the signature of Alfredou on the
reprimands (Tr. 245–250).18 None of the discharged workers had signed the reprimands.
The reprimand for Fagoth (GC Exh. 20B) stated that she was discharged because
It has come to our knowledge through an email that was sent out to all employees,
management and ownership by a former server, whom was terminated 3 days ago, that
Tangni deliberately provided access to this server who read unauthorized documents
and the General Manager’s email conversation with ownership. The email included false
accusations concerning both management and ownership and used inappropriate
language, to which Tangni replied stating that she agreed with all the aforementioned.
As a result of this insubordination, Tangni was terminated the day after by the owners of
Mexican Radio.19
The reprimand was issued on October 30 and signed by Alfredou.20
The reprimand for Palomino was issued on October 30 by Alfredou (GC Exh. 20C) and
stated that she was discharged because
Juliana demonstrated insubordination towards both management and the ownership
along with 4 other employees. Juliana replied to an email sent by a colleague of hers
who had just resigned, stating that she agrees with all the issues. The email included
false accusations concerning both management and ownership and used inappropriate
language, to which. On the light of this, management asked to talk to her but she
walked out of the restaurant on Friday October 30 and she is considered to have
resigned from the position of server at Mexican radio.

17 The reprimands and discharges of Fagoth, Palomino, Garcia and Santana were alleged in the complaint as
violations of the Act. The reprimands and discharges of other workers (such as Rivera) were not raised as
allegations in the complaint and served only as background information.
18 The counsel for the Respondent objected to the reprimands as hearsay and not official business records of
the Respondent. However, the documents were received by subpoena issued by the General Counsel and Selden
recognized and took ownership of the documents. At that point, counsel for the Respondent did not oppose the
reprimands for the record (Tr. 246, 247).
19 Fagoth was issued an earlier reprimand on October 10 when she was serving as a shift supervisor (GC Exh.
40). That reprimand served as background information. It was not raised as an allegation in the complaint and need
not be addressed in this decision.
20 Although Selden did not recognized the signature, a comparison of Alfredou’s signatures with other
documents signed by her undisputedly show that Alfredou had signed the reprimands (compared GC Exh. 20A-C
with her signatures in GC Exh. 21)
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The reprimand for Santana was issued on October 30 by Alfredou (GC Exh. 20A) and
stated
Nadgie demonstrated insubordination towards both management and the ownership
along with 4 other employees. Nadgie replied to an email sent by a colleague of hers
who had just resigned, stating that she agrees with all the issues. The email included
false accusations concerning both management and ownership and used inappropriate
language, to which. On the light of this, management asked to talk to her but she
walked out of the restaurant on Friday October 30 and she is considered to have
resigned from the position of server at Mexican radio.
For whatever reason, the Respondent felt it was necessary to draft a second set of
reprimands for Fagoth, Santana and Palomino. The reprimands were written by Morgan.
Garcia was not given a reprimand by Alfredou, but did receive one from Morgan.The second set
of reprimands were written by Morgan and dated October 30. The reprimand for Garcia (GC
Exh.29B) stated that Garcia was discharged because
On 10/29/15 Netty Polanco sent out an e-mail to all of the upper management,
ownership, store manager and selected employees of our NYC location. In this e-mail
she used foul language, insulted people and wrote about untruths in a very demeaning
and negative manner. She undermined the credibility of the management and company
in a disparaging way. Stephanie replied to the e-mail in support of Netty. This is
insubordination and will not be tolerated. On 10/31/15 Stephanie did not show up for her
scheduled shift nor did she call. This is job abandonment.
Outcome:
Stephanie abandoned her job by not calling in nor showing up for her scheduled shift.

For Fagoth, Morgan prepared the reprimand (GC Exh. 29A) and stated
On 10/29/15 Netty Polanco sent out an e-mail to all of the upper management,
ownership, store manager and selected employees of our NYC location. In this e-mail
she used foul language, insulted people and wrote about untruths in a very demeaning
and negative manner. She undermined the credibility of the management and company
in a disparaging way. Tagni (sic) replied to the e-mail in support of Netty. This is
insubordination and will not be tolerated. On 10/30/15 Tagni arrived for her scheduled
shift and was asked to speak with me directly. During this conversation she was
terminated for insubordination.
Outcome:
Tagni was terminated for insubordination.
For Palomino, the reprimand (GC Exh. 29C) stated
On 10/29/15 Netty Polanco sent out an e-mail to all of the upper management,
ownership, store manager and selected employees of our NYC location. In this e-mail
she used foul language, insulted people and wrote about untruths in a very demeaning
and negative manner. She undermined the credibility of the management and company
in a disparaging way. Juliana replied to the e-mail in support of Netty. This is
insubordination and will not be tolerated. On 10/30/15 Juliana arrived for her scheduled
shift and was asked to speak with me directly. She walked out and abandoned her shift
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instead of talking to me.
Outcome:
Juliana abandoned her job with no notice.
Finally, for Santana, Morgan wrote in his reprimand (GC Exh. 29D) that
On 10/29/15 Netty Polanco sent out an e-mail to all of the upper management,
ownership, store manager and selected employees of our NYC location. In this e-mail
she used foul language, insulted people and wrote about untruths in a very demeaning
and negative manner. She undermined the credibility of the management and company
in a disparaging way. Nadgie replied to the e-mail in support of Netty. This is
insubordination and will not be tolerated. On 10/30/15 Nadgie worked her scheduled
shift and was asked to see me before she left. She acknowledged this but left purposely
without talking to me. This is also insubordination. On her scheduled shift on 10/31/2015
Nadgie e-mailed the General Manager 1 hour after he rescheduled start time to say she
wasn’t coming in. I called Nadgie and explained she was being terminated for
insubordination and failure to properly notify management of an absence.
Outcome:
Nadgie was terminated for insubordination and failure to properly notify management of
her absence.
The Unemployment Insurance Claims of the Discharged Workers
On about November 2, Fagoth, Palomino and Santana filed claims for unemployment
insurance benefits with the New York State Department of Labor (DOL). On November 9,
Morgan responded to a questionnaire regarding Fagoth’s unemployment claim (GC Exh. 31).
Morgan stated in the questionnaire that Fagoth was
…in full support of an ex employee who emailed owners and mgnt with foul language
and false accusations…publicly supported the ex employee to the staff which is
insubordination. She was discharged for insubordination.
On December 21, Morgan followed up with the DOL on Fagoth’s claim for benefits (GC Exh. 36)
and stated
We feel like Tangni in her position as a part time shift supervisor needed to support the
management and the owners publicly and she could certainly have her own opinion
privately. By showing support publicly for the employee that wrote the derogatory e-mail
she did not support the management and owners and by doing that exhibited
insubordinate behavior that required termination. Because of that we felt that Tangni
should not be eligible for unemployment benefits.
On November 9, Morgan responded to a DOL questionnaire with regard to Santana’s
claim for unemployment benefits (GC Exh. 32). Morgan stated that Santana was discharged for
Insubordination towards management and ownership. Nadgie sent an email supporting
another employee who quit and insulted company owners and management with foul
language.
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There seems not to be a questionnaire prepared by Morgan on Palomino, but in
preparation for a hearing on her unemployment claims, Young wrote to the New York State DOL
on January 22, 2016 (GC Exh. 8) the reasons that Palomino should be denied benefits

Juliana worked as a hostess and server at Mexican Radio Corp in NYC.
On 10/29/15 a former employee, Annette Polanco, sent out a disparaging email to the
Managers, Owners and Employees alleging all types of untruths about our operations in the city.
Juliana replied that she was in agreement with the email and thanked the former employee for
speaking out. We as the Owners were very concerned about the email and some of the
falsehoods being expressed so that we, with our Director of Ops, went down to the city the next
day to speak to those involved.
When the Owners and Director of Operations traveled down to the City on 10/30/15 to inquire
about these issues, we asked all the employees involved to come down individually to the office
to speak with us. After we had finished our first conversation with Tangni Fagoth, she promptly
went upstairs and announced that everyone was being fired. This was a complete fabrication
on her part and an attempt to hurt the company and turn staff against management. Juliana,
after speaking to Ms Fagoth, turned around and walked out without ever speaking with the
Owners or the Director of Operations.
We consider this the clearest example of job abandonment and thus does not make her eligible
for Unemployment Insurance.
On January 21, 2016, Young prepared another letter to the New York State DOL to
oppose unemployment insurance benefits for Santana. Young stated
On 10/29/30 a former employee sent an email out to Management, Owners and
Employees stating various untruths and malicious insubordinate statements about the
restaurant, management and the owners. We as Management and Owners were
extremely distressed to see that Nadgie Santana had responded to this email expressing
support for the accusations made.
On 10/30/15„ the Owners and Director of Operations went down to NYC to discuss the
matter with all the individuals involved. Nadgie was working the day shift when we
arrived. We asked her, after her shift, to please come down and talk to us. She
acknowledged that she understood what was being asked of her but when her shift
ended she simply walked out the door and did not say a word to us.
I have reason to believe that she did speak to the one person that early evening we did
speak with and that was Tangni Fagoth. We had spoken to Miss Fagoth first as she was
the first to arrive for the evening shift. Miss Fagoth was also the biggest supporter of the
insubordinate email and the 'group leader' of all those who went on to agree with the
insubordinate email. When Miss Fagoth went upstairs she told the staff that anyone who
had received the email would be fired. That was completely untrue and a complete
fabrication on her part, causing great stress amongst the staff.
Nadgie left soon after Miss Fagoth's announcement. The following day, 10/31/15,
Nadgie informed the manager by text after she was meant to arrive for her scheduled
shift that she was not coming back in to work. At my request the Director of
Operations called Nadgie and discussed what had happened, why she wasn't coming
back into work and why she did not come down into the office to meet with him and the
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owners the night before as she had been asked to do. Her explanation was that that she
had been told by Miss Fagoth that she was being terminated for insubordination and was
too nervous to come speak with us directly and therefore decided not to come back in to
work. The Director of Operations then terminated Nadgie over the phone for a
combination of insubordination, intentionally walking out without speaking with him as
directed and then not showing up for her work shift the following day.
The Respondent management officials also had opportunities to directly communicate
with the DOL employees handling the unemployment insurance claims of Fagoth, Palomino and
Santana.21 On December 7, Morgan spoke to DOL Agent Lorraine Aimee Labarge about
Palomino. In a summary prepared for the claim filed by Palomino (GC Exh. 38B), Labarge took
the following statement from Morgan
Per Steve Morgan, Director of Operations:
Ms. Palomino last worked on 10/30/15 as a Server at Mexican Radio Corp. Another
employee had written an email that was disparaging to the company and she agreed
with it. We called her in to the office and she walked out before we could talk to her. We
were going to fire her but we did not tell her before we called her in to the office that we
were going to discharge her because she agreed with the other employees email. We
felt that Ms. Palomino agreeing with the email was insubordination. I will email you
documentation.
Similarly, Diana A. Beatty took down a statement from Morgan pursuant to Beatty’s
handling on Santana’s unemployment benefits claim (GC Exh. 38D). Beatty wrote on
December 21 that Morgan told her the following
No she wasn't told if she didn't speak to me before leaving, that she’d fired. John is one
of the supervisors. He did not tell me that he had allowed her to leave. I know she said
she wasn't feeling well but she had been waiting tables all day without a problem. No
one said shes having an anxiety attack. I think she just started not feeling well after she
found out that I wanted to speak to her.
No, there were not any problems with Nadgie’s work performance or any other issues
prior to the co-worker's derogatory email that was sent on 10/29/15, that would suggest
her job was in jeopardy of termination before 10/31/15.
Finally, with regard to Fagoth’s unemployment benefits claim, Morgan responded to DOL
Agent Lorraine J. Astemborski on November 19 (GC Exh. 38C). Astemborski memorialized the
following statement taken from Morgan
There is no written policy regarding e-mails. She had never been written up for anything.
This is what happened. There were a bunch of them who were working at the restaurant.

21 Initially, the counsel for the General Counsel requested to take testimony from the New York State DOL
employees involved in handling the unemployment insurance claims of Fagoth, Santana and Palomino by video
conference. The request was opposed by Respondent counsel. I request that the General Counsel file a motion for
video conferencing witnesses and a response from the Respondent. I also suggested whether there is an alternative
to the need to take testimony of witnesses by video conference. On October 24, 2016, I granted the General
Counsel’s motion to accept the authenticated business records consisting of three pages of investigative documents
prepared by the DOL employees pursuant to the unemployment insurance claims in lieu of taking their live testimony
by video (see, Order of record (GC Exh. 38).
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It was like it was their own little cartel. We had hired a new manager who they didn't get
along with. You probably saw the e-mail it was foul and insulting and she responded in a
favorable way to it. So that is why we discharged her. She was discharged for agreeing
to it.
DISCUSSION AND ANALYSIS
The complaint alleges that the Respondent interfered, restrained and coerced
employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section
8(a)(1) of the Act. Section 8(a)(1) of the Act provides that it is an unfair labor practice to
interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7.
Discharging and disciplining employees because they engaged in activity protected by
Section 7 is a violation of Section 8(a)(1). Section 7 of the Act guarantees employees the right
“to self-organization, to form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection . . . .” See, Brighton Retail,
Inc., 354 NLRB 441, 447 (2009).
a. The Workers Engaged in Protected Concerted Activity
The Respondent contends that the workers did not engage in concerted activity because
the individual worker’s activity was the expression of a personal gripe and not a protected
concerted activity. The Respondent argues that concerted activity “does not include an
individual’s action simply because the action ought to be of group concern,” citing to Meyers I,
268 NLRB at 497(R. Br. at 12). I disagree.
The Board has long described concerted activity “in terms of interaction among
employees.” In Myers Industries (Myers I), 268 NLRB 493, 494 (1984), and in Myers Industries
(Myers II) 281 NLRB 882 (1986), the Board held that “concerted activities” protected by Section
7 are those “engaged in with or on the authority of other employees, and not solely by and on
behalf of the employee himself.” In Talsol Corp, 317 NLRB 290, 316–317 (1995), the Board held
that an employee’s statements at a safety meeting indicating concern with matter which affected
not only himself but other employees constituted protected concerted activity. The Act also
protects concerted activities for mutual aid or protection regardless of whether a union is
involved. 22 Alton H. Piester, 353 NLRB 369, 371 (2008).
Here, shortly after Alfredou was hired as the general manager, several of the servers
discussed and complained to Selden about Alfredou’s rude behavior and demeanor towards
them and others. Fagoth credibly testified that she emailed Morgan about Alfredou’s conduct as
a general manager. Her email specifically referenced other employees with similar complaints
against Alfredou. Fagoth stated, in part, “We have had the same staff for a while and trust me I
know we need to take care of things but there is no reason to be aggressive or disrespectful
about it. The Ieast she (Alfredou) can do is schedule a meeting and introduce herself properly
and be nice to the staff. If things keep going this way, soon everyone will be leave including me.
I will not work at a place where I'm being spoken down to” (GC Exh. 6b).

22 To be sure, the complaint does not allege that the Respondent engaged in antiunion hostility despite argued
in the posthearing brief by the counsel for the General Counsel (GC Br. at 68).
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Fagoth also complained to Selden by email and copied Young on August 9 and stated,
in part, “I'm just not happy on the way she (Alfredou) is approaching us and the demeaning way
she is speaking to us. I just wanted to reach out to our human resources guy (Morgan) so he
can look into it” (GC Exh. 6a).
Garcia also sent an email to Selden on August 28. Garcia complained that it was related
to her that Alfredou had threatened to fire her despite the fact that she was on approved sick
leave and mentioned that Alfredou also wanted to fire Santana. Garcia’s email stated, in part, “I
am writing to you to let you know that I was informed by a few of my coworkers that the GM
wants to fire me. I have been in the hospital for 8 days… Now I am hearing that she is upset
because I did not go to her personally to let her know that I was sick…I don’t think it is
professional of her to go and tell people that I work with that she is going to fire me before firing
Nadgie (Santana) without speaking to me or giving me a warning and telling them not to tell me
about it…” (GC Exh. 7). Santana also wrote a similar email to Selden regarding the threat by
Alfredou to fire her (GC Exh. 17).
There was protected concerted activity during the August 25 pre-shift meeting between
the servers and Alfredou. Fagoth, Palomino and Santana raised the issues of giving an equal
share of the pooled tips to the runners, reduced work shifts that obviously affected their wages
and Alfredou’s demeaning behavior towards the staff. Palomino maintained that Alfredou told
the wait staff at the meeting that “If you guys don’t like how things working here, then you can
go look for another job, you can leave.” I credit this testimony by Palomino, which was
corroborated by Fagoth (Tr. 337). Fagoth also credibly testified that she spoke to Garcia, who
had not attended the meeting, and conveyed to her that Alfredou had threatened to fire Garcia.
Fagoth ended that phone conversation by saying to Garcia that she was going to canvass the
servers and draw up a list of complaints to present to Morgan who was expected to arrive at the
restaurant. Fagoth's purpose in relaying the complaints to Garcia was to encourage her to take
corrective action to protect her job. Thus, I find that Fagoth's conduct was clearly undertaken for
the mutual aid and protection of a fellow employee and therefore constituted actual concerted
activity. The Board has repeatedly held that an employee’s warning to another employee that
the latter’s job is at risk constitutes protected, concerted activity. Food Services of America, Inc.,
360 NLRB 1012, 1013–1015 (20014); Jhirmack Enterprises, 283 NLRB 609, 609 fn. 2 (1987).
In addition to meeting with Morgan, a group of the servers also met with Young and
Morgan on October 5. At that meeting, another list of complaints was presented to Young for
his response. Young corroborated that he met with the group and discussed their complaints
about each of the servers expressing their anger towards Alfredou regarding her treatment of
the waitresses, especially towards Santana. Young also recalled that Polanco complained
about the dirtiness of the bar area. He also recalled that the group was unhappy with their
schedules, which affected their wages (Tr. 70–73; 623–630).
There was also concerted activity by the four discriminatees over the unsanitary working
conditions at the restaurant. Each of the discriminatees discussed the problem among
themselves and followed up with complaints to the Health Department. Fagoth testified that she
spoke to Santana, Palomino, Garcia and Rivera before she called the Health Department on
October 14 because little action was done to correct the unsanitary conditions. Garcia and
Santana testified that they had also contacted the Health Department.
Most significantly, there was concerted activity when Fagoth, Garcia, Santana and
Palomino agreed to the Polanco email. The email was a culmination of the complaints made by
the servers to Selden, Morgan and Young. Fagoth, Garcia and Santana had individual
conversations before sending out their support for the email. Palomino did not discuss the
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email with anyone prior to sending out her response, but she supported the group action
regarding the demeaning remarks by Alfredou and the terms and conditions of employment
mentioned in the email. The Board has found concerted activity when employees discuss
matters of common concerns, such as wages, sharing tips, working conditions or work
schedules, even when no specific group action was discussed because “it is obvious that
discussions of this kind usually precede group action.” See St. Margaret Mercy Healthcare
Centers, 350 NLRB 203, 204, 212 (2007).
Here, the email is a concerted activity. Concerted activity includes not only activity that
is engaged in with or on the authority of other employees, but also activity where individual
employees seek to initiate or to induce or to prepare for group action, as well as individual
employees bringing truly group complaints to the attention of management. Fresh & Easy
Neighborhood Market, 361 NLRB No. 12, slip op. at 3 (2014). This is true even if the employee
is unsuccessful in persuading other employees to join in group action. El Gran Combo, 284
NLRB 111, 115, 117 (1987). If the employee or employees who are acting in concert are
seeking to improve terms and conditions of employment, their actions are for mutual aid and
protection of all employees within the meaning of Section 7. Fresh & Easy Neighborhood
Market, above, slip op. at 3, 5–6. Actions taken by the servers were for mutual aid or protection
and include activity to “improve terms and conditions of employment or to otherwise to improve
their lot as employees.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).
b. Section 8(a)(1) Standard of Review
Once having determined that the employees engaged in protected, concerted activity,
the analysis focuses on whether this conduct was the cause of the discipline, and if so, whether
they in fact committed misconduct in the course of the protected activity warranting the
discipline. When an employer discharges an employee ostensibly for conduct unrelated to
protected activity, the Board must determine whether an unlawful consideration—the protected
activity of the employee or other employees—entered into the decision making process and, if
so, whether it affected the outcome of that process. In such situations, the Board follows the
mixed motive analysis articulated in Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983); La-Z Boy Midwest, 340 NLRB 80, 80
(2003); Shamrock Foods Co., 337 NLRB 915, 915 (2002).23
However, the Board has held that where the conduct for which the employee is
disciplined is intertwined with protected concerted activity, the Board’s traditional Wright Line
analysis does not apply. Taylor Motors, Inc., 365 NLRB No. 21 fn. 1 (2017); Rogers Corp., 344
NLRB 504, 513 (2005), citing Felix Industries, Inc., 331 NLRB 144, 146 (2000).

23 Under the mixed motive analysis articulated in Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), the Respondent has the burden to show it would have taken the same action even absent the
employee’s protected activity. The employer does not meet its burden merely by showing it had a legitimate reason
for the action; it must demonstrate that it would have taken the same action in the absence of the protected conduct.
In finding that the employer’s proffered reasons are pretextual, the employer fails by definition to meet its burden of
showing it would have taken the same action for those reasons, absent the protected activity. See Alternative Energy
Applications, 361 NLRB No. 139, at slip op. 3 (2014), citing authorities. It has long been recognized that where an
employer’s reasons are false, it can be inferred “that the [real] motive is one that the employer desires to conceal—an
unlawful motive—at least where . . . the surrounding facts tend to reinforce that inference. See Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).
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Having ruled out a Wright Line analysis, there are two types of violations involving
employees who were discharged for conduct associated with their protected activity: 1) Cases
involving employees who were discharged because their employers honestly but mistakenly
believed that they had engaged in misconduct during the course of the protected activity and
(2) Cases involving employees who did, in fact, mingle some alleged misconduct with the
protected activity, but the misconduct was not opprobrious enough to forfeit the protection of
the Act. The Board evaluates cases in the first category using the NLRB v. Burnup & Sims,
Inc., 379 U.S. 21, 23 (1964) framework. See Amelio’s, 301 NLRB 182 (1991). For cases in
the second category, the analysis focuses on the factors the Board set forth in Atlantic Steel,
Co., 245 NLRB 814 (1979) and its progeny. Here, the General Counsel’s theory of the case
falls within the second category (GC Br. at 63–65).
As with all alleged Section 8(a)(1) violations, the judge’s task is to “determine how a
reasonable employee would interpret the action or statement of her employer . . . and such a
determination appropriately takes account of the surrounding circumstances.” The Roomstore,
357 NLRB 1690, 1690, fn. 3 (2011) (taking account of the surrounding circumstances was
incorporated with the Board’s later decision in Pier Sixty, LLC, 362 NLRB No. 59 (2015) that
looks into the totality of the circumstances).
c. Credibility
The credibility resolutions herein have been derived from a review of the entire
testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the
witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). A
credibility determination may rely on a variety of factors, including the context of the witness’
testimony, the witness’ demeanor, and the weight of the respective evidence, established or
admitted facts, inherent probabilities, and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, Inc., 339 NLRB 303, 305 (2003); Daikichi
Sushi, 335 NLRB 622, 623 (2001). Credibility findings need not be all-or-nothing propositions—
indeed, nothing is more common in all kinds of judicial decisions than to believe some, but not
all, of a witness’ testimony. Daikichi Sushi, above. Nevertheless, the credibility findings by the
judge must be clear and uncertain. Taylor Motors, Inc., 365 NLRB No. 21 (2017); Roto Rooter,
283 NLRB 771, 773 (1987).
Here, it was necessary to make several credibility determinations. The counsel for the
Respondent objected on numerous occasions that testimony provided by the discriminatees as
to statements told to them by other individuals was hearsay testimony. I ruled that the Board
“does not invoke a technical rule of exclusion but admits hearsay evidence and gives it such
weight as its inherent quality justifies” and their testimony was allowed in. Midland Hilton &
Towers, 324 NLRB 1141 fn. 1 (1997).
d. The Respondent Displayed Animosity to the
Workers’ Concerted Activity
I find that the Respondent has already demonstrated its animus towards the
discriminatees for their protected concerted activity. At the pre-service meeting on August 25,
Santana complained that Alfredou reduced her work shifts from three to one when she returned.
Santana stated that she returned to work on August 3 and was informed by Alfredou that she
wanted to fire her in order to reduce expenses. Alfredou told Santana that it was “not personal”
when she informed her that she might be discharged. Santana said that Alfredou mentioned
Garcia as someone that might also be fired because of her illness. Palomino maintained that
Alfredou told the wait staff at the meeting that “If you guys don’t like how things working here,
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then you can go look for another job, you can leave.” Fagoth corroborated the threat made by
Alfredou and that Alfredou repeated the same threat to fire the waitresses that refused to agree
with her work shift schedule and the sharing of the tips. Fagoth testified that Alfredou said to
her and the wait staff that “if you don’t like it, you can go” and that the changes were instructions
from Young and Selden.

Much of the hearsay objections were statements attributed to Alfredou, Young, Selden,
Morgan and Petrow as described by the discriminatees. Inasmuch as Young, Selden and
Petrow testified and were subjected to examination about a prior statement, such statements
are not hearsay. To the extent that out-of-court statements were attributed to Alfredou and
Morgan, their statements made to the discriminatees went unrebutted because Alfredou and
Morgan did not testify. Thus, the threat made by Alfredou to the discriminatees at the August 25
pre-service meeting was a party admission against interest and are not hearsay. See Grey v.
Heckler, 721 F.2d 41, 48 (2d Cir. 1983); Avon Roofing & Sheet Metal Co., 312 NLRB 499, 499
(1993). As such, I credit the testimony of Palomino and Fagoth that Alfredou had in fact
threatened to discharge those who did not agree with her management policy and I further
credit Fagoth’s testimony that Alfredou was instituting the changes in the working conditions at
the direction of the owners. Additionally, I also find that the statements attributed to Alfredou
were fully corroborated and consistent with the testimony provided by the discriminatees and
therefore, have significant probative value.
The remark made by Alfredou that “If you guys don’t like how things working here, then
you can go look for another job, you can leave” is certainly threatening and clearly had the
tendency to restrain and coerce employees in the exercise of their Section 7 rights. The Board
has long held that such statements by an employer implicitly threaten discharge because they
convey the impression that the employer considers complaining about working conditions
incompatible with continued employment. See Equipment Trucking Co., 336 NLRB 277 (2001)
(the Board found that the statement by the employer’s president that she would run the
company “any way she wanted, and if he (the employee) didn’t like it, find another job” was
unlawful); Electrical South, Inc., 327 NLRB 270, 277 (1998)(statement by supervisor that
“employees had better watch their backs” unlawful as a threat of unspecified reprisal); Bill Scott
Oldsmobile, 282 NLRB 1073 (1987)(when employees expressed concern about changes in
operation, the supervisor told the employees that “if they did not like it, they could get out, leave
their jobs”).24 The threat, moreover, made by Alfredou, the general manager, is a factor that the
Board has long recognized as significant. “The threats were made by Respondent’s general
manager, a man who possessed the power not only to threaten but also to turn threat into
reality.” General Stencils, Inc., 195 NLRB 1109, 1110 (1972).
Further, additional animus towards the workers in their exercise of Section 7 rights were
shown by the owners’ hostility towards the complaints filed by the workers regarding the
unsanitary conditions at the restaurant. Petrow testified that the department of health
complaints was part of doing business and was not alarmed over mice in the restaurant. Petrow
did not believe that discipline was taken against any of the servers for reporting the unsanitary
conditions because it’s a problem that needed to be fixed and would not be grounds for
discipline. However, when the health complaints were reported to the owners, Selden’s
response was that Petrow should find out who made the complaints “ASAP” and suggested that
their attorneys file a “cease and desist” order against the complainers (GC Exh. 25C). Petrow
also confirmed that Selden told him to find out who had made the complaints (Tr. 771, 772).

24 The complaint did not allege that the threat made by Alfredou was an independent violation of the Act but
nevertheless serves as background information for the workers’ subsequent termination.
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Fagoth and Garcia testified that they were interrogated by Petrow and that it was stated
to them that whoever made the calls to DOH was harassing the owners. I credit the testimony
of Fagoth and Garcia that Petrow made such as a statement since the statement is consistent
with the demand from Selden to Petrow to find out who had made the complaints and to file a
“cease and desist” order against the disgruntled complainers.
e. The Respondent Violated Section 8(a)(1) When the
Employees were Disciplined and Discharged
The Respondent argues that by adapting and agreeing to the language in the email, the
discriminatees were insubordinate in undermining the owners’ authority and credibility and
therefore loss the protection of the Act. Upon my review, I find that the sole reason for the
discharge of Fagoth, Garcia, Santana and Palomino was over the email and not because they
had refused to meet or had abandoned their job.
1. Fagoth, Santana, Garcia and Palomino were Reprimanded
and Discharged for Agreeing to the Polanco Email
With Fagoth, Selden recalled Morgan asking Fagoth why she supported the email.
Morgan said it was insubordination in referring to Fagoth’s agreement to the email. Selden
then said that Morgan replied we will have to let you (Fagoth) go. The reprimand for Fagoth
stated that she was discharged because the email included false accusations about
management and the owners and had used inappropriate language which Fagoth did not object
when she agreed to the statements in the email. In opposing Fagoth’s unemployment benefits
claim, Morgan stated in the DOL questionnaire that Fagoth was in full support of a former
employee’s email that contained false accusations and foul language about the owners and
management, which Fagoth publicly supported and Morgan deemed this to be insubordination
and grounds for discharge.
With Palomino, Young insisted that Palomino was not terminated for responding to the
email, but rather for not speaking to them and for abandoning her position when she walked out
of the restaurant with Fagoth and Rivera. However, the reprimand for Palomino issued on
October 30 by Alfredou stated that she was discharged because she demonstrated
insubordination by agreeing with all the issues in the email. Separately, Palomino was also
discharged for abandoning her position. Young said that she was terminated for walking out
and not speaking to them about the email on October 30.
With Santana, she was discharged for insubordination in refusing to speak with the
management team. Selden said that Santana was terminated for refusing to come downstairs
to speak and instead, she left the restaurant. Selden also admitted that Santana was
discharged over insubordination in agreeing with the email, walking off the job, which she
considered as job abandonment. Young’s testimony for Santana’s discharge was similar to
Selden. He testified that Santana was terminated for a no call/no show on October 31 and
insubordination for refusing to speak with them on October 30. Young subsequently indicated
that Santana was also terminated for insubordination for responding to the email.
With Garcia, she was terminated for a no show to work on October 31 for her 5:30 p.m.
shift. Young insisted that Garcia disappeared and was not terminated for insubordination.
Young said that Garcia was eventually terminated for no show after not hearing from her.
However, an affidavit provided by Young pursuant to a charge filed with the EEOC stated that
Garcia was terminated for insubordination as well as not reporting for her shift. The reprimand
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for Garcia stated that she was discharged because Garcia replied to the email in support of
Polanco. Morgan believed this to be insubordination. The reprimand also noted that Garcia
abandoned her job.
Accordingly, the Polanco email was clearly the reason that Fagoth, Garcia, Santana and
Palomino were reprimanded and discharged. While the Respondent noted other reasons for
the discharge (further discussed below), the driving motivation for each of the discharges was
the workers’ agreement with the email. With Fagoth, Morgan states that she was discharged
because of her “full support of the email.” With Palomino, Alfredou stated that she was
discharged for insubordination by agreeing to the email. With Santana, Selden admitted that
Santana was discharged over insubordination in agreeing with the email. Finally, with Garcia,
Morgan stated in his reprimand that she was discharged because she replied to the email in
support of Polanco.
2. Agreeing to the Polanco Email was not Opprobrious Conduct
Respondent argues that the email was “pretty nasty” and “deeply insubordinate.” The
Board has held that workers engaged in “opprobrious conduct” can lose the protection of the
Act. Atlantic Steel, above; Caterpillar Logistics, Inc. v. NLRB, 835 F.3d. 536, 539 (6th Cir. 2016)
(Where an employee engages in indefensible for abusive misconduct during otherwise
protected activity, the employee forfeits the Act’s protection). When an employee engages in
abusive misconduct during activity that is otherwise protected, the employee forfeits the Act’s
protection. DaimlerChrysler Corp., 344 NLRB 1324, 1329 (2005).
I disagree. It is clear that each of the four discriminatees were discharged for agreeing
to the contents of the Polanco email. The only question remaining is whether Fagoth, Santana,
Garcia and Palomino lost the protection of the Act by merely responding to Polanco’s email. In
my opinion, Fagoth, Santana, Garcia and Palomino did not lose the Protection of the Act by
agreeing to the email.
Regardless of whether I apply the four factors under Atlantic Steel25 or the totality of the
circumstances under Pier Sixty, upon my review, I find that the Respondent violated Section
8(a)(1) of the Act when it disciplined and discharged Fagoth, Garcia, Santana and Palomino.
Here, the four discriminatees merely agreed to a nonpublic email from a former
employee. First, the four discharged employees did not add to the email with any negative
comments of their own; they did not describe their feelings or animosity toward the manager
and owners; and they never cursed or made any derogatory comments toward the Respondent
in their responses. Second, the email was part of an ongoing dialogue between the workers
and the managers/owners and was provoked, in part, on the failure of the Respondent to correct
the problems. Third, the email contained little profanity and was not insubordination, but a
critique of the management style of Alfredou and others. Fourth, the nonpublic email did not
cause a loss of reputation or business for the Respondent. Fifth, there was no disruption of the
business on the following day.

25 The four factors articulated in Atlantic Steel are: (1) the place of the discussion between the employee and
employer; (2) the subject matter of the discussion; (3) the nature of the employees’ outburst; and (4) whether the
outburst was, in any way, provoked by an employer’s unfair labor practice.
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The discriminatees, by agreeing to the email did not engage in misconduct that was so
opprobrious as to forfeit the Act’s protection. The Board has consistently held that
discriminatees do not forfeit the protection of the Act by merely participating in an otherwise
protected discussion in which other persons made unprotected statements. In Triple Play
Sports Bar & Grille, 361 NLRB No. 31 (2014), the Board found that a worker engaged in
protected concerted activity by liking a Facebook post concerning an on-going work issue
refused to attribute unprotected and/or profane statements made by others to the charging
party.
The Respondent would like to distinguish Triple Play from the situation here because
Triple Play was a social media posting (R. Br. at 14, 15) and that the four factors under Atlantic
Steel are more applicable than the Triple Play “totality of circumstances” standard of review.
However, even applying the four factors under Atlantic Steel, I find that the discharged workers
did not loose the protection of the Act by agreeing to the contents of the email. Contrary to the
position of the Respondent, I find that the email was limited to certain employees, managers
and owners of the restaurant, and therefore not known to other employees and the public. Any
alleged defamatory statements in the email were significantly limited to a nonpublic email in
contrast to a publicly posted comment on social media for the entire world to view. As such, the
dissemination of the email was far less intrusion on the Respondent’s reputation and business
than a social media posting under Triple Play. Further, the email was not a discussion between
the employer and responding employees and did not occur in a public forum, and therefore
there was no disruption of the workplace or with the patrons. The subject matter invoked a
continuing dialogue of concerted activity regarding the terms and conditions of employment and
is protected under the Act. Finally, the outburst, which was merely agreeing to the contents of
the email, was provoked by the employer’s unfair labor practice to discharge the workers who
had disagreed with Alfredou’s change in the working conditions at the restaurant.
3. The Discharged Workers did not Abandoned their Jobs
or Refused to be Interviewed
The Respondent also argues, assuming the agreement to the email was concerted
protected activity; the workers went beyond with agreeing with a coworker’s complaint in an
email. The Respondent asserts that Fagoth, Garcia, Santana and Palomino should not be fall
under the curative cupola of protected concerted activity because they refused to be interviewed
by management over the email and refused to work, either by walking out of the restaurant or
not showing up for their scheduled shift.26 The Respondent states that Palomino and Santana
flatly refused to speak to the owners and walked out of the restaurant with Palomino leaving her
shift uncovered and Santana abandoning her shift over the weekend. The Respondent states
that with Garcia, she simply never returned to work and abandoned her job (R. Br. at 22–23).27
With Fagoth, it was clear that she was discharged for agreeing to the email. Fagoth was
terminated for insubordination after she reaffirmed her support with the contents of the email.
Fagoth met with the owners and therefore, she could not be insubordinate for refusing to meet
with them on October 30. The only insubordination charge is her agreement with the email.
Before Fagoth was discharged, Selden recalled Morgan asking Fagoth why she supported the

26 In such a situation where an employer alleges that the discharged employee engaged in misconduct
unrelated to his protected activity, such as poor work performance or tardiness, the Board has applied the “mixed-
motive” review as set forth in Wright Line, above.
27 I would note that the Respondent did not assert abandonment as an affirmative defense in its answer to the
complaint but I would nevertheless address this contention herein.
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email. Selden recalled Fagoth replying that “You don’t do and haven’t done what we want,”
obviously referring to the issues in the email and then Morgan discharged Fagoth. In my
opinion, Fagoth was discharged immediately after she asserted her Section 7 rights when she
conveyed her own and the concerns of other servers that the Respondent officials failed to take
any corrective action over the terms and conditions of employment at the restaurant that had
been festering since the arrival of Alfredou.
With Garcia, I find that she did not abandon her job. Garcia was not scheduled to work
on October 30 and therefore, she would not be aware that the owners wanted to meet with her
over the email. Garcia received a phone call from Fagoth and was informed that Fagoth was
fired for insubordination in agreeing to the contents of the email. Garcia also received a phone
call from Santana before leaving for work on October 31. Santana informed Garcia that she
was fired and played back the voice conversation she had with Morgan. Santana informed
Garcia that Morgan was adamant that he did not want anyone working at the restaurant if they
had replied in support of the email. Garcia testified that she never returned to work from that
day based upon her belief that Morgan in the voice recording was also referring to her because
she had agreed to the contents of the email. Garcia said that she never heard from any
management official after that day.
Young testified that Garcia was terminated for a no show to work on October 31, yet no
one in management had contacted Garcia to determine whether she was ill or unable to work.
Although an employer is not obligated to contact an employee for failing to report to work, I find
it significant that Young went out of his way to assure other employees on October 30 that their
jobs were not in jeopardy but did not give the same assurances to Garcia (Tr. 60–64).
In addition, Young’s affidavit provided pursuant to an EEOC charge stated that Garcia
was terminated for insubordination as well as not reporting for her shift. Garcia’s reprimand (GC
Exh. 29B) also stated that Garcia was discharged because Garcia supported the email and
Respondent deemed this to be “insubordination and will not be tolerated.” This was the real
reason for Garcia’s termination and her alleged abandonment of her job was merely a
smokescreen and therefore, a false reason.
I find it was reasonable for Garcia to believe that her agreement to the email would result
in her termination in light of the fact that she heard the taped statement by Morgan that the
Respondent did not want anyone working in the restaurant who had agreed to the email.
Equally as significant, the reprimand used to discharge Garcia had already been drafted on
October 30 before Garcia even had an opportunity to speak and explain her position over the
email with the owners and Morgan.
With Santana, she received a phone call from Morgan and the message was recorded
on Santana’s phone on October 31. The voice message from Morgan stated that they had tried
to speak to her the day before and that she refused to talk with them and left the restaurant.
Morgan also noted that Santana did not arrive at her scheduled shift on Saturday (October 31)
and assumed Santana did not want to work for the restaurant any longer because she refused
to speak to them and did not arrive at work the following day. Morgan then stated that Santana
“don’t have a job anymore so you don’t need to come back” (GC Exh. 37).
Santana called Morgan back after hearing his voice message on October 31. Her phone
conversation was recorded by Santana. Santana protested that she had abandoned her job
and reiterated that she informed Alfredou of her absence and that Petrow had approved her day
off because Alfredou never responded to her text. Morgan replied that it was wrong that
Santana agreed with the email, the contents were untrue and management will not tolerate
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people working in the restaurant that agreed with the email. Morgan felt that she was being
insubordinate and “refused to do things.” Santana stated that she never refused any
appropriate instructions but was fired anyway (GC Exh. 37C).28
The fact that Santana did not abandon her job is evidenced in Santana’s reprimand
written by Morgan, which stated that “she undermined the credibility of the management and
company in a disparaging way. Nadgie replied to the email in support of Netty. This is
insubordination and will not be tolerated.” 29

Inasmuch as Morgan did not testify, I find that Santana’s statement that Morgan will
discharge any workers in agreement with the email as credible and fully corroborated with the
transcript of the phone conversation with Santana. Again, like Garcia, I find that the real reason
for Santana’s termination was her agreement with the email and not for abandoning her job her
refusing to speak with the owners on October 30.
Finally, with Palomino, it was already a foregone conclusion that she was going to be
discharged once she met with the owners and her refusal to meet with the owners can only be
seen as a pretext for her termination. The owners were intent on discharging Palomino before
she had refused to meet with the owners. In the summary prepared pursuant to the DOL
unemployment insurance claim filed by Palomino, Morgan responded that “Another employee
had written an email that was disparaging to the company and she (Palomino) agreed with it.
We called her in to the office and she walked out before we could talk to her. We were going to
fire her but we did not tell her before we called her in to the office that we were going to
discharge (emphasis added) her because she agreed with the other employees email. We felt
that Ms. Palomino agreeing with the email was insubordination.” Again, the alleged
abandonment of her position by Palomino as a reason for her discharge is a pretext for her
termination.30
In order to meet the Wright Line burden of persuasion, an employer must establish that it
has consistently and evenly applied its disciplinary rules. DHL Express, Inc., 360 NLRB 730,
736 (2014). In the instant case, the Respondent has produced no evidence of other employees
who have been discharged for “failure to report to work or refusing to meet with the owners.”
Indeed, the evidence shows that an employee who had not reported to work was suspended
and not terminated and other employees in similar circumstances were given less severe
discipline for arriving late or not showing up for work (GC Exh. 28). In light of that, the
Respondent does not point to any evidence that establishes objective standards regarding what
constitutes abandonment or refusal to speak to management officials as being inappropriate
and grounds for termination. As such, I find that the Respondent has failed its burden of

28 I find it unnecessary to determine whether John Petrow was an agent of the Respondent within the meaning
of Section 2(13) of the Act since his employment status did not play a role in the reprimands and discharge of the four
workers.
29 Selden also testified that Santana was not discharged for her failure to report to work on October 31.
30 It is also clear that the Respondent failed to establish that Garcia, Palomino and Santana abandoned their
positions since they had protested the allegation that they had abandoned their jobs. In order to establish
abandonment of employment ... an employer must present ‘unequivocal evidence of intent to permanently severe
employment relationship...” L.B.&B. Associates, Inc., 346 NLRB 1025, 1029 (2006); Harowe Servo Controls, Inc., 250
NLRB 958, 964 (1980)(“…unequivocal evidence of intent to permanently severe employment relationship. …”). I note
that the Board has held “[a]n employer cannot simply present a legitimate reason for its action but must persuade by
a preponderance of the evidence that the same action would have taken place even in the absence of the protected
activity.” W. F.Bolin, 5 Co., 311 NLRB 1118, 1119 (1993), enfd. mem 99 F.3d 1139 (6th Cir. 1996).
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persuasion to demonstrate the same action would have taken place even in the absence of the
protected conduct. Wright Line, supra, at 1089.
Accordingly, I find that the Respondent unlawfully reprimanded and discharged Tangni
Fagoth, Stephanie Garcia, Nadgie Santana and Juliana Palomino in violation of Section 8(a)(1)
of the Act.
CONCLUSIONS OF LAW
1. At all material times, the Respondent, Mexican Radio Corporation, 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 on about October 30, 2015, by
discriminatorily issuing written reprimands to Tangni Fagoth, Stephanie Garcia, Nadgie Santana
and Juliana Palomino.
4. The Respondent violated Section 8(a)(1) of the Act by discriminatorily terminating Tangni
Fagoth and Juliana Palomino on October 30; and Nadgie Santana and Stephanie Garcia about
October 31, 2015.
5. The unfair labor practices described above affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, the Respondent having discriminatorily issued
terminations to Tangni Fagoth, Stephanie Garcia, Nadgie Santana and Juliana Palomino, I shall
order the Respondent to offer Fagoth, Garcia, Santana and Palomino full reinstatement to their
former positions or, if those positions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other employee emoluments, rights or privileges
previously enjoyed, and to make them whole for any loss of earnings suffered as a result of the
Respondent’s unlawful actions against them. Backpay shall be computed in accordance with
F.W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
In accordance with Don Chavas, LLC, d/b/a Tortillas Don Chavas, 361 NLRB No. 10
(2014), my recommended order requires Respondent to compensate Tangni Fagoth, Stephanie
Garcia, Nadgie Santana and Juliana Palomino for the adverse tax consequences, if any, of
receiving a lump-sum backpay award and to file with the Regional Director 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 award to the appropriate calendar years. AdvoServ for New Jersey, 363
NLRB No. 143 (2016).
In addition to the remedies ordered, I shall recommend that the Respondent compensate
Tangni Fagoth, Stephanie Garcia, Nadgie Santana and Juliana Palomino for their search-for-
work and interim employment expenses regardless of whether those expenses exceed their
interim earnings. King Soopers, Inc., 364 NLRB No. 93 (2016). Search for work and interim
employment expenses shall be calculated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
JD(NY)-09-17
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It is further recommended that Respondent remove all references to the reprimands
dated October 30, 2015 issued to Tangni Fagoth, Stephanie Garcia, Nadgie Santana and
Juliana Palomino, including said "Reprimands" from their files and notify them in writing that it
has done so and that the reprimands will not be used against them in any way.
My recommended order requires the Respondent to expunge from its files any and all
references to the unlawful termination of Tangni Fagoth, Stephanie Garcia, Nadgie Santana and
Juliana Palomino, including the reprimands dated October 30, 2015, and any notes, documents
or references regarding their reprimands and termination that were prepared and/or provided to
the New York State Department of Labor in response to their unemployment insurance claims
and to notify them in writing that this has been done and that the unlawful discharges and
reprimands will not be used against them in any way.
ORDER
On these findings of facts and conclusions of law and on the entire record, I issue the
following recommended31
The Respondent, Mexican Radio, Corp., its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging, disciplining, or otherwise discriminating against employees because they
engaged in protected concerted activities.
(b) 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 effectuate the policies of the Act.
(a) Make Tangni Fagoth, Stephanie Garcia, Nadgie Santana and Juliana Palomino whole for
any loss of earnings and other benefits, including reimbursement for all search-for-work and
interim-work expenses, regardless of whether they received interim earnings in excess of these
expenses, suffered as a result of the unlawful reprimand and discharge, as set forth in the
remedy section of this decision.
(b) Compensate Tangni Fagoth, Stephanie Garcia, Nadgie Santana and Juliana Palomino
for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and to file
with the Regional Director 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 award to the
appropriate calendar years.
(c) Immediately offer full reinstatement to Tangni Fagoth, Stephanie Garcia, Nadgie Santana
and Juliana Palomino and if the offers are accepted, reinstate Fagoth, Garcia, Santana and
Palomino 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.
(d) Within 14 days from the date of the Board’s Order, remove from its files any reference to
the unlawful discharge of Tangni Fagoth, Stephanie Garcia, Nadgie Santana and Juliana

31 If no exceptions are filed as provided by Sec. 102.46 and 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 purposes.
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Palomino, including their reprimands dated October 30, 2015, and thereafter notify them in
writing that this has been done and that the discipline will not be used against them any way.
(e) Remove all references to any notes, memoranda, and any written documents prepared
in response and defense of the unemployment insurance claims filed by Tangni Fagoth,
Stephanie Garcia, Nadgie Santana and Juliana Palomino with the New York State Department
of Labor and notify them in writing that it has done so and that the reprimands will not be used
against them in any way.
(f) 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.
(g) 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 designated by the
Board or its agents, all payroll records, social security payment records, 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. Absent exceptions 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 due under the terms of this Order.
(h) Within 14 days after service by the Region, post at its existing property at the 19
Cleveland Place, New York, New York facility, a copy of the attached notice marked
“Appendix.”32 Copies of the notice, on forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized representative, shall be posted by the
Respondent 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 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 October 29, 2015.
(i) Mail a copy of said notice to Tangni Fagoth, Stephanie Garcia, Nadgie Santana and
Juliana Palomino at their last known addresses.
(j) Within 21 days after service by the Region, file with the Regional Director for Region 2, 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. April 26, 2017

Kenneth W. Chu
Administrative Law Judge

32 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
„V/
JD(NY)-09-17
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 benefits
and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten to discipline or discharge or otherwise discriminate against you because
you engage in protected concerted activities or to discourage you from engaging in these or
other concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order, offer Tangni Fagoth, Stephanie
Garcia, Nadgie Santana and Juliana Palomino full reinstatement to their former jobs or, if the
jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
WE WILL make Tangni Fagoth, Stephanie Garcia, Nadgie Santana and Juliana Palomino whole
for any loss of earnings and other benefits resulting from their discharge, less any net interim
earnings, plus interest, including any pay increases made to similarly situated employees
from the date of their respective discharge dates to the present, and including
reimbursement for all search-for-work and interim-work expenses, regardless of whether
they received interim earnings in excess of these expenses, or at all, during any given
quarter, or during the overall backpay period.
WE WILL compensate Tangni Fagoth, Stephanie Garcia, Nadgie Santana and Juliana Palomino
for the adverse tax consequences, if any, of receiving a lump-sum backpay award.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files all references
to the unlawful discharge of Tangni Fagoth, Stephanie Garcia, Nadgie Santana and Juliana
Palomino, including their respective reprimands.
WE WILL, within 3 days thereafter, notify Tangni Fagoth, Stephanie Garcia, Nadgie Santana and
Juliana Palomino in writing that this has been done and that their discharge and reprimands will
not be used against them in any way.
JD(NY)-09-17
____________Mexican Radio, Corp._____________
(Employer)
Dated:____________________ By:______________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
National Labor Relations Board Region 2
26 Federal Plaza, Room 3614
New York, New York 10278
Hours of Operation: 8:30 a.m. to 5 p.m.
212-264-0300
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/02-CA-168989 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, 212-264-0346.