Petition for Writ of Certiorari — Pashuck v. Cooksey
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Supreme Court, U.S.
Base.
97 1770 APR1319%
OFFICE OF THE CLERK
In The
Supreme Court of the United States
October Term. 1997
LONGINUS YEN
On Behalf of Himself and All Others Similarly Situated,
Petitioner,
VS.
National Labor Relations Board (U.S.A.).
and
Pacific Culture Enterprise.
d/b/a The China Press,
Respondents.
On Petition For Writ Of Certiorari
To The United States Court of Appeals
For The Second Circuit
PETITION FOR A WRIT OF CERTIORARI
Longinus Yen (Pro Se)
35-30 73™ Street, # 3C
Jackson Heights
New York, 11372
Tel. & Fax. (718) 335-8265
I. QUESTIONS PRESENTED FOR REVIEW.
[.
The National Labor Relation Board performs its duties
under the Congress’ Commerce Clause and National
Labor Relations Act. Congress delegated to the
Agency certain powers that can be used in all unfair
labor practice cases. These principal powers have to
do with investigations and hearings. A case, after an
investigation, issued a complaint and ordered of an
evidentiary hearing. The NLRB could on abstract or
hypothetical question to “waive or deny” the hearing
without the Administrative Law Judge approval ?
The NLRB’s Regional Director in the execution of his
duty with the official power “Out of the hearing”
under Congress’ Commerce Clause and _ National
Labor Relations Act gave an advisory opinion, which
gave advice about particular legislative or executive
action, that is a “State” action ? or is it applicable to
private as well as state conducted “State Action” ?
The “Action” under “Motive” with “Motion” , Fraud,
“No judicial review”, “No jurisdictional nexus” with
“Public function” doctrine and “nexus” doctrine
deprived a citizen's Civil Rights ( Fundamental
Right ) Access to court and infringed upon a citizen’s
civil liberties and properties interest on the Federal
Government interest with free override. Does the
NLRB have the power or the authority to do such
injustices on a private citizen?
* Me RTT
PRR, A 9 . a ae ca a . - - -
PEE EOP IAIEI SS ROME OEE LOMO RS INE EIEN IP i SS SL
Il. PARTIES TO THE PROCEEDING
The petition is Longinus Yen only.
The respondent is the National Labor Relations Board
Margey E. Lieber,
Assistant General Counsel for Special Litigation,
Eric G. Moskowitz,
Deput Assistant General Counsel for Special
Litigation,
Danise F. Meiners,
Anttorney, Special Litigation Branch,
National Labor Relations Board, Washington, DC.
And,
Pacific Culture Enterprise, Inc.,
d/b/a The China Press
lil. TABLE OF CONTENTS
page
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lk Pasties tothe Praceeting oi... ci eek
Fs es sad was cae donvcete vavanenta cain an
Ay Fae OF Mme on oo ea ce tou ease
Vrs Te is ees acre
VI. Basis for Jurisdiction in this Court...................... 2
VII. Statutory Provisions Involved... ..................0.0.. 4
VUTTT Beata Oe Ci Cake re So ot le
[X. Reasons for Granting the Writ . seas ae
I: Tenth Amendment’s with ‘ ‘Motion”. No judicial
review, No Jurisdictional nexus’ state action......... 10
II: The First Amendment’s Free Speech “overbreadth”
ects i> CTO as ico ica es ee BO
Ill: Fifth Amendment’s Procedural No Due Process......_ 17
Oe a i ee ee ean ae
IV. TABLE OF AUTHORITIES
Cases Pages
Airport Commissioners of Los Angeles v. Jews for Jesus, Inc..,
ee, ee te ET hs kno. ok sas eee setae
U.S. 444 (1969)... 00000... RAS f
Gitlow_v. New York,
268 U.S. 652 (1925)...... ye ae ala ea
Houston v. Hill
MOP ADS MSIE). al ee
Leeds & Northrup Co. v. NLRB,
Ser 2 oe Seaton Cw 66) 13
Perry_v. Sindermann,
408 US 593 (1972)............ 19
Thornhill v. Alabama,
310 U.S. 88 (1940)......... tas Ay a ee
Whiney_v. California,
274 U.S. 357 (1927) Gees OEY |
PRET ° 6 A CA TR er a a
TABLE OF AUTHORITIES - Continued
The Constitution of the United States of America
U.S. CONSTITUTION, AMENDMENT XIV. (1868)
U.S. CONSTITUTION, AMENDMENT XIII. (1865)
U.S. CONSTITUTION, AMENDMENT X. (1791)
U.S. CONSTITUTION, AMENDMENT I. (1791)
U.S. CONSTITUTION, AMENDMENT V. (1791)
Statutes, Rules and Regulations
All of the Civil Rights Act.
National Labor Relations Act. Section 10, Section 8.
Title 29, CFR Chapter 1, National Labor Relations Board.
New York State Labor Law. Article 6.
:
:
Supreme Court of the United States
October Term, 1997
LONGINUS YEN
On Behalf of Himself and All Others Similarly Situated,
Petitioner.
VS.
National Labor Relations Board (U.S.A.),
and
Pacific Culture Enterprise.
d/b/a The China Press,
Respondents.
On Petition For Writ Of Certiorari
To The United States Court of Appeals
For The Second Circuit
PETITION FOR A WRIT OF CERTIORARI
The Petitioner Longinus Yen (Pro Se) respectfully
pray that a writ of certiorari be issued to review the summery
order and denied a motion for rehearing of the United States of
Appeals for the Second Circuit entered in the above-entitled
proceeding on March 7, 1997. The petition for rehearing and
rehearing en banc was denied on March 17, 1998.
V. OPINIONS BELOW
The opinion of the Court of Appeals for the Second
Circuit is reported and is reprinted in the Appendix, p.la,
infra.
The Order of decision of the United States District
Court for the Southern District of New York has not been
reported. It is reprinted in the appendix hereto, p.17a, infra.
The Opinion of the National Labor Relations Board,
Office of the General Counsel. Washington, D.C. has not been
reported. It is reprinted in the appendix, p. 20a, infra.
The Advisory Opinion of National Labor Relations
Board, Region 2 , New York Office has not been reported. It is
reprinted in the appendix, p. 25a, infra.
The Order of decision of New York State
Unemployment insurance Appeal Board has not been
reported. It is reprinted in the appendix hereto, p. 42a, infra.
Vi. BASIS FOR JURISDICTION IN THIS COURT
The judgment of the United States Court of appeals for
the second circuit was entered on March 7, 1997. A petition _
for rehearing, with suggestion, according the Federal Rules of
Appellate procedure. #48 “Master : appoint a_ special
master...” for rehearing, was 130 days later denied on March
17,1998.
The Federal Court of Appeals for second Circuit may
not found as following :
A full evidentiary hearing was canceled for unknown
reasons with no “notice of motion” and no further notices of
rescheduling, no judicial review ,only the NLRB’s Regional
Director with his duty given reasons, there is concern with the
“Freedom of speech” interrupted by a policeman in the
execution of his duty without due process. And the unfair
labor practice case by officer's mandate to withdraw, which
the procedural limit with no jurisdictional nexus that the
petitioner’s civil rights and private liberties totally deprived by
the National Labor Relations Board's officer’s “State Action”
with “Pe+lic function” and “NEXUS” - The significance of
state involvement.
To deny a full evidentiary hearing with
Constitutionally impermissible reasons when it is the
government’s duty to open that is worst, evil’s “State
Action.”
The petitioner's liberties and properties interest are
deprived with NO full evidentiary hearing (“state ‘non’
action”) only by the National labors Relations Board
officer's “Motive” to enforcing (state action) that is total no
due process of law.
For instance, Out of the hearing, the NLRB’s officer as
private conduct which prevents state officials(job for public
functions with state interference.) from giving equal protection -
or due process to others may clearly be prohibited by the
Congress.
Similarly, Out of the hearing that the NLRB’s officer
as a private conduct which intentionally interferes with rights
guaranteed to an individual by federal constitutional
provisions other than 14" Amendment may be barred by
Congress.
This Court’s jurisdiction is invoked under 28 U.S.C.
#1254(1) (1992).
VIL. STATUTORY INVOLVED
National Labor Relations Act. Section 10. Summary of
standard procedures in formal hearings held, before the
National Labor Relations Board, in unfair labor practice
proceedings and Section 8 in relevant parts. (App. p. 44,48a.)
Code of Federal Regulations, Title 29 — Labor, Subtitle
B — Regulations Relating to Labor, Chapter | — National
Labor Relations Board in relevant parts.(App. p. 49a.)
New York State Labor Law, Article 6, Payment of
wages, 1n relevant parts of Section 191-c, 3. Section 193 1,2.
Section 197(App. p. 51a, 52a.)
VII. STATEMENT OF THE CASE.
1 worked at The China Press as a reporter since
September 3, 1990. My employer frequently illegally
deducted my wages until on April 17, 1995. Total deducted
amount 1s about $11,704. | could not afford their tyranny, so
| wanted going to organize union to protect my right. Then the
China Press fired me.( App. p. 52a.)
The illegal deductions are prohibited by New York
State Labor Law.(App. p. 51a, 52a.)
On April 18,1995. ° .e National Labor Relations Broad
(NLRB) issued a charge against the employer. Case No. 2-
CA-28359. On April 24, at NLRB Region 2 office to report an
affidavit. After investigations, on August 9, the NLRB issued -
a complaint and notice of hearing. (App. p. 38a.)
In the last week before the hearing, the China Press’
attorney faxed several letters to my counsel. These letters were
written by me to extend an intent to bargain for my job. But
the China Press obscured the evidence to appear that | had
actual malevolence and it was defamatory and libel. They
misled the NLRB to settle the case. | refused the settlement
because it offered only $1000 to $2000 while they owec me
approximately $50,000. | also wanted reinstatement in my
former job but in an environment with fair labor practices. At
that time my counsel asked for my authorization for the
settlement. I refused again, | told that the letters that | wrote
were within my constitutional right and that the evidence
shown was invalid. The counsel then informed me that he
would settle with or without my authorization.
On Sunday, June 30, 1996, The China Press proposed
the settlement which my counsel recommended but did not
sign. (App. p. 34a.)
On Monday, July 1, 1996, one day before the scheduled
hearing date, | felt my counsel may have impaired my
“private interest” if he accepted the settlement with the China
Press. I believe that the action will violate “due process right
and fair hearing right to counsel” (Fifth Amendment and Sixth
Amendment). On that day | faxed a letter declaring that the
letters | wrote were protected by my 1" amendment rights and
that | was going to court for a hearing to see whether my
words were protected was also my right. The Regional
Director of the NLRB has no authority to deem nor declare
what | wrote was not protected by the Constitution.(App. p.60)
The scheduled hearing date was on Tuesday, July 2,
1996 at 9:30AM. The court was located at 26 Federal Plaza,
Room 3614, New York, New York. On the day, when |
arrived at the court no counsel there, no court clerk there, no
Judge there, only me. | found out that my hearing was
canceled. | was surprised. Who has the power and ability to
cancel the hearing ? No one toid me that the hearing was
canceled. There were no further notices of rescheduling. Next
door, there was the NLRB’s Region 2 office. 1 had a
receptionist there to sign a paper confirming | came to the
court. (App. p. 61a.)
In the Tuesday, July 2, 1996 afternoon | received a
letter dated July 1, 1996. from counsel that asking me to sign
the proposed settlement (The settlement was only signed by
my former employer, no officer signed the recommendation).
Nothing in the letter even hinted that the hearing was going to
be canceled. | was given seven business days to given my
position on why the Regional Director should not accept the
settlement agreement. (App. p. 34a.)
In settlement, the China Press’s President offered me
$3.400 to settle the case. According to the NLRB back pay
Claimant Identification, | was owed $49,707.09 in back pay
and reinstatement, if the employer breached the National
Labor Relations Act. | felt they were in a conspiracy and |
believe that the procedure was not in due process of the law.
(On January 9,1998, I bought the book of “Code of Federal
Regulations” Title 29, Labor, then | knew, the NLRB was
violation the regulation ; 29 CFR 1, 102.24 (b) All motion for
summary judgment or dismissal shall be filed with the Board
no later than 28 days prior to the scheduled hearing. )
On July 5, 1996, 1 sent letter by fax, by mail, by
registered mail and by hand. | try to explain “...their
equivalent fiction and poetry that totally should be protected
uncer the Constitution...”. (It is the second time I declared my
First Amendment rights.) (App. p. 32a)
On July 10,1996, a letter (as a mandate) from
Regional Director said; (1)The letters are “Physical harm” and
“contain obscene language” and “threatening letters”. (Pre-
judgment and interrupt speech in the execution of his duty. )(2)
withdrawing the complaint.(After a scheduled full evidentiary
6
hearing which with “unknown reasons” was not opened. )(3)
approving the proposed unilateral settlement agreement. (
Non-Administrative Law Judge and against assertion of a third
party’s right.) (App. p. 25a.)
| felt that the procedural no due process was illegal,
then, | believed that the Regional Director lied to me, so |
checked my text book of law for business and found that the
letter from the Regional Director is fraud as a result of Express
Misrepresentation, there consists of four elements: (a) A false
statement of a material fact must be made. (b) The false
statement must be made by one who knew it to be false, or by
one who made it in reckless disregard of its truth or falsity.(c)
There must be an intent to induce the innocent party to act by
reason of the false statement.(d) The innocent party must have
been induced to make the contract by the false statement.(John
D. Ashcroft and Janet E. Ashcroft. College Law for Business,
Ninth Edition, Uniform Commercial Code. Pp 35)
On July 22,1996, 1 wrote an appeal to the General
Counse! to defend (third time) my First Amendment nght. |
asserted that ] was the president of a newsletter and | was just
asserting my rights. On August 14,1996, letter from The
NLRB’s General Counsel said; “threatening remark... ‘used
metaphorically’...such threatening remarks are not protected
by the Constitution.....under the National Labor Relations
Act,...” The appeal was denied. Then, | decided, to fight for
the Constitution of the United States of America.(App. p. 20a.)
On November 6 1996, | received a letter from the
Regional Director of the NLRB saying that he has told the
China Press the case was closed.(App. p. 62a.)
On January 15, 1997, 1 received a W-2 form where
under my name and Social security number there were paid
income taxes. The same day, | sent letters to the China Press a
7
and copy to the NLRB Region 2 and Washington office that
told them: “ that $3,034 was reported as wages but no such
receipt of the money occurred. Please be informed that any
Inquiry stating that the money was received will be denied.”
On October 10, 1997, The NLRB Region #2 Office
mailed a blank piece of paper with two checks issued by the
China Press and dated July 1, 1996, with a face amount of
3,167.90. I returned it because was not “legal tender’. On
October 15, 1997, The Board agent, Esther Morales (possibly
through somebody else) delivered to me the same two checks
and in doing so broke my mail box. There was also no stamp
or meter or any indication that it was mailed by the United
States Postal Service. | returned it again and reported it to the
National Labor Relations Board’s D.C. Office on October
16,1997.(App. p. 63a.)
On November 5, 1997, I received a letter from
NLRB’s Regional Director that said; “...we have returned
the back pay checks to the Employer.” On November
13,1997, that one day before | had a hearing in the Federal
court of appeals for second circuit that 1 received a letter from
NLRB’s Washington Office, Assistant General Counsel,
Celeste J. Mattina said; “...due to circumstances beyond the
Region’s control.” answer the Questions as fail to perform the
obligations of contract’s assumed is legal right.(App. p. 64a)
The case beginning on April 18, 1995, ending at
November 5, 1997 as a jocularity, as to the National Labor
Relations Act a lie, where under the Act., labor as no civil
right to hearing, no right to “Free speech”, the
properties( working nights) held by officer which under their
mind. :
1 believe that the State Action goes against the Civil
Rights from Amendment XIV and XIII, private nghts with
Amendment X. I. and _ V. and Article 1, section 10, The
Contract Clause.
IX: REASONS FOR GRANTING THE WRIT
The Congress delegated to the Agency certain powers
that can be used in all cases. These are principal powers
having to do with investigations and hearing.
The National Labor Relations Board under The
Congress’ Commerce Clause and The National Labor
Relations Act is to uphold the unfair labor practice case which
under Constitution protects the Civil rights and liberties.
The National Labor Relations Board after receiving the
case, only notice of the charge and needed some kind of
opportunity to respond before withdrawal of the complaint,
not a full evidentiary hearing of the sort found necessary in
the case.
The procedures to which the case was entitled were to
be judged by independent constitutional standards, not merely
by whether NLRB complied with the state statutory scheme.
In this case, The National Labor Relations Board let the
scheduled hearing for “Unknown” reasons to be canceled (the
hearing never opening) as never happened, there was no
further notices of rescheduling.
The “Unknown” may Constitutionally impermissible
reasons.
After the scheduled “hearing” (which did not open) the
National Labor Relations Board’s Regional Director under
“mind and spirit” issued a mandate to interrupt the First
Amendment’s Right, “of Free Speech” in the execution of his
duty which is the fundamental right which | applied to the
court before, then, where not only prohibited the speech, but
also misused the official power to withdraw the unfair labor
practice’s case complaint. They were against the assertion of
my third party’s right before the court to discuss the
reinstatement and the employer back pay, than with “freedom
from arbitrary adjudicative procedures” to approval unilateral
settlement without Administrative law judge approved.
This Case No Other Standard Found Workable.
The petitioner trying to analyze the “hearing” is the
point of the balance to scale even the public liberty and the
civil right to equal protection’Amendment XIV) and
(Amendment V ) due process the civil rights and private
liberties and properties interest. That the hearing “waiver” by
an “unknown” reasons, that to let the state action is totally by
the “Motion”. then, “No Judicial review” and “No
jurisdictional nexus” which all of the action is violation of the
Tenth Amendment. “The power not delegated to the United
States by the Constitution, nor... or to the people.”
The power of Civil Rights are the foundations of
citizenship which under Fourteenth Amendment protects the
individuals, private party’s Civil liberties and the properties. |
believed it to be Constitutionally impermissible reasons to
waiver a hearing, a private persons civil rights, civil liberties
and property has been totally infringed .
1
This case Raises Important Federal Questions Because
the Federal court of appeals for second Circuit’s Decision has the
Effect of Foreclosing Takings Claims by workers’ in heavily
regulated industries./Tenth Amendment’s with “Motion”, No
Judicial review, No Jurisdictional nexus’ State action)
10
In this case it is found that the National Labor
Relations Board (NLRB) under ‘ ‘ongress’ Commerce Clause
and National Labor Relations Ac. have held the unfair labor
practice case to protect public liberty. The NLRB waived the
scheduled hearing, then the officer with general police power
held “motive” to override, and went beyond the labor's
liberties and property that not only violate the Tenth
Amendment. As the followings : (a) No judicial review / No
jurisdictional nexus. (b) Mandate with as arbitrarily and unfair
as it wishes. (c) Escape the problems. (d) To impose
significant due process barriers. (¢) Against a private party.
Also violate the Fourteenth Amendment’s equal protection of
the “Law — no hearing. no due process of constitution -
between the public liberty and civil rights, private liberties.”
Two questions need to be decided upon; Is equal protection a
claim on the state or a protection against it ? To what extent
does our right to equal protection extend into our social and
economic life ?
(1) On July 1, 1997, One day before the scheduled
hearing, | faxed a four page document an First Amendment
rights to my counsel who was working in NLRB for General
Counsel to refuse a unfair settlement to the Case No: 2-CA-
28359 of the unfair labor practice case. | prepared the
documents to object to the employer's attorney use of
obscured evidence (letters to bargaining) to demonstrate that
actual malevolence existed, defamatory and libel. (App.p.48a. )
On July 2, 1997, the scheduled hearing was canceled
without any “notice of motion”, and nobody knew by whom’?
Why ? How ? This is NLRB’s officer merely by whether
complied and misconduct the statutory scheme. (App. p. 61a)
The scheduled hearing was canceled for “unknown”
reasons. which is an explicitly constitutionally impermissible
1]
reason, no procedural due process of unfair labor practice
cases were practiced in my case by the NLRB.
After | was applied my First Amendment night, the
NLRB’s officer canceled the scheduled hearing which use
silence, latent with “vague”, no judicial review, then they do
not need normally permitted to assert all of my
constitutional mghts, keep the right and power under
Commerce Clause and National Labor Relations Act extended
to great lengths.
(2) The NLRB’s officer canceled the scheduled
hearing by interrupting speech with silence with latent to make
a “vague” doctrine which is deterrent to constitutional civil
right to court. The unfair labor practice case which is the
constitutional civil liberty and property right to create a
legitimate claim of entitlement to a benefit. The NLRB is a
“classified civil servant” who must follow procedures with
due process to the necessary public service which is entitled to
be judged by independent constitutional standards, not by
merely by whether they complied with the state statutory
scheme. (App.p. 44a.)
Since the constitution requires at least “some kind of
hearing” prior to the deprivation of any significant property
interest. But here is private party to private party lawsuit
under an unfair labor practice case in the legal action. The
unfair labor practice case need a “full evidentiary hearing.”
The scheduled hearing was canceled for “unknown”
reasons.
The Title 29, CFR, Chapter 1, National Labor
Relations Board, No any words said, a case after issued
complaint and scheduled hearing could “waiver”, “cancel” for
a unknown reason and after the scheduled hearing could
12
Ce ee ee ee
withdrawal complaint without administrative law judge
approval.
(3) After the scheduled hearing date with no judicial
review, my counsel mailed a settlement to me with only the
employer's offer and | refused to accept it and applied the
First Amendment to protect my rights, but the NLRB's
Regional Director was gave an “overbreadth” analysis to the
interrupted speech, and withdrawal the complaint. Then, I had
applied to the NLRB General Counsel which given another
“vague standard” to “overbreadth” analysis what interrupted
the speech.
Also. the NLRB’s Regional Director approval the
unilateral settlement against the third party’s right which 1s
legal restricted not assert the constitutional rights not before
the Court , that is “Genuine obstacle”
(4) | had worked with the China Press for about five
years( 1990-1995) where there we had a “de facto” tenure
program/expressed contract, which was breached by the China
Press's illegal deduction of wages and fired me because of a
union activity. A state legislature cannot absolve debtors’
obligations to other parties. The Contract was an impairment
of my creditor's rights by the NLRB's Regional Director's
decision to withdraw the complaint and approve an unilateral
settlement without a charging party and Administrative law
judge’s approval, this is obstructing the Administration of
justice. Why isn’t an opportunity given to me to argue before
a judge my objections and reasons? (Leeds & Northrup Co. v.
NLRB, 357 F.2d 527 (3d Cir. 1966).) (App.p.25a, 44a — 52a.)
Finally, The NLRB Regional Director handed the
paycheck over, one year later, but not as “legal tender’ to pay.
The China Press was being protected by the NLRB so that
they need not pay or address any obligation. They conspired
13
together and so actual malice existed. Also “with knowledge
of was false and reckless disregard of whether it was false or
not” in violation of the Contract Clause..
Accordingly, that the NLRB’s Regiona! Director
under a “motion” scheme doing any “motive” activity with ~
No judicial” fo impose significant due process barriers and
deprivation of any constitutional nghts of worker or labor has
had. That from unethical anti-individual-union activities,
exposed the menace to civil liberties from the concentration of
power in private hands (Employers and NLRB’s Regional
Director), and advocated the application of strong government
power to protect the Bill of mghts. Then the federal
government held out the promise (NLRB’s General Counsel
are secundary boycotts) of safeguarding work's rights. Thus,
the labor's liberties and property night to be coercion from
private employer and Congress. The NLRB’s Regional
Director will “legally” to “fraud” “misuse” the official power
to breach the constitutional civil nghts and liberties.
Taft — Hartley Act. (Labor-Management Relations
Act.) Taft — Hartley amendment, Section 8 of the NLRB by
prohibiting union activities that specified in Section 8 (b).
Forbidden are second boycotts, jurisdictional strikes over
work assignments an employee on account of his or her union
affiliation, or lack of it. (App. p. 20a,21a.)
I am convinced that effective control over the
exercise of civil liberties in the United States rests where it has
away been — with masters of property that will loosen the
effectiveness of those control.
The NLRB’s officers’ various reconstruction statutes,
which made civil rights violations federal crimes, were
reexamined for their contemporary applicability.
14
The Federal Court of Appeals for second Circuit may
not have found these very important points of the NLRB with
“NON” hearing and with “state actions” are in the significance
of state involvement.
di
The Federal court of appeals for second Circuit’s
Decision is in Direct and Readily Apparent Conflict with the
Supreme Court’s Opinion in Houston v. Hill, 482 U.S. 451
(1987) ( The First Amendment’s Free Speech “overbreadth”
doctrine to interrupted. )
A statute is overbroad if in addition to proscribing
activities which may constitutionally be forbidden it also
sweeps within its coverage speech or conduct which is
protected by the guarantees of free speech or free association.
(Thornhill v. Alabama, 310 U.S. 88 (1940).) I three times
applied my constitutional nght of free speech, but the NLRB’s
Counsel, Regional Director and General Counsel attempted to
have my speech (National Labor Relational Act.) ruled
unprotected by the Constitution. | believed the NLRB violated
my First Amendment rights, and not permitted to assert my
rights before the court.
The scheduled hearing was canceled for “unknown”
reasons. =
The Title 29, CFR, Chapter 1, National Labor
Relations Board, No any words said, a case after issued
complaint and scheduled hearing could “waiver”, “canceled”
by unknown reason and after the scheduled hearing could
withdrawal complaint without administrative law judge
approval.
In fact, | orally told my counsel those letters were
stories and he knew that these were being used on the China
15
Press's attorney to bargain for a settlement. Then, he informed
me that a settlement would go ahead with or without my
approval. One day before the scheduled hearing, | sent a four
page document to my counsel saying that what | wrote was
protected by First Amendment Constitutional Rights. The
answer was the cancellation of the next day’s hearing. There
were no further notices of rescheduling. Three days later, | for
the second time applied the rights to NLRB’s Regional
Director, but his answer is “....physical harm and contain
obscene language ... boundary from protect speech...” and *
withdrawing the complaint and |] am approving the proposed
settlement agreement in this matter.” Then, | wrote an appeal
to the General Counsel to defend my First Amendment rights.
The General Counsel answer, *... “used metaphorically’... such
threatening remarks are not protected by the Constitution ...
under the National Labor Relations Act.” | believe it is fraud
for the counsel to keep silent when his duty is to speak. The
Regional Director and General Counsel had the Police power
with an “overbredth” analysis to interrupted the “Free speech”
that the Supreme Court was struck down as overbroad a
Houston ordinance that made it a crime to “interrupt any
policeman in the execution of his duty...” : the here statute
prohibited all speech that interrupted, in any manner, any
duty of an officer.”(Houston v. Hill, 482 U.S.451 (1987).) and
Airport Commissioners of the Los Angeles _v. Jews for
Jesus, Inc., 482 U.S. 569 (1987). The Federal Court of
appeals for second circuit may not agree the difference with
Supreme Court’s Opinion, that which one 1s the person
before arrest “as applied” the First Amendment nghts then to
court. In this case that is before the hearing to apply the First
Amendment nights, then, the hearing “waiver” and
“overbreadth” doctrine by police interference, “deterrent”
people to the court.
But, there same “may will be that the state has the
power constitutionally to punish a person who uses speech for
16
the sole purpose of preventing an arrest or investigation.”
Here, may perhaps more important, that the NLRB’s officer
used an abstract idea to trump up a false charge with
constitutionally impermissible reasons to canceled a scheduled
hearing, “motive” try “No judicial review” to escape the
problems, which (1)The private litigants Civil right with the
access to courts was denied.(2)The state action, “Nexus”
doctrine — the significance of state involvement with
“peremptory challenges as joint participation.” The
emplover’s attorney used the charging party's bargaining
letters some words to against the case, that actual malevolence
existed, “with knowledge that is false”, that is defamatory and
libel.
The NLRB’s Regional Director freedom from
arbitrary adjudicative procedures to admit with “reckless
disregard of whether it was false or not”, then, withdraw the
complaint that the state did not grant enough procedural
safeguards. Therefore, the NLRB’s Regional Director could be
held liable for violating my constitutional rights. Thus,
violation of the Fourteenth, Thirteen and Tenth Amendment.
And also, where the mere existence of a comprehensive
regulatory scheme is itself sufficient to foreclose claim
brought against the United States under the First Amendment
and the due process required exclude from Fifth Amendment
coverage.
Hl
This case presents an unsettled question of federal law
regarding the application of Pro Se takings analysis to
government action involving the total expropriation of property
interest other than real property. ( Fifth Amendment's Procedural
No Due Process.)
The scheduled hearing was canceled for “unknown”
reason.
17
The Title 29, CFR, Chapter 1, National Labor
Relations Board, No words says a case after complaint ts
issued and hearing scheduled could be “waived” or
“canceled” for unknown reason and after the scheduled
hearing could withdrawal complaint without an administrative
law judge approval.
(1) Despite the apparent lack of protection of free
speech given by Gitlow v. New_York, 268 U.S. 652 (1925)
and Whiney v. California, 274 U.S. 357 (1927). The Court
did, in pre-World War II, impose significant Due process
barriers to wholesale convictions for prohibited. The present
status of freedom of speech is best expressed in Brandenburg
v. Ohio U.S. 444(1969), a case in which the Court combined
the most speech-protective aspects of both the “clear and
present danger” test and the “advocacy /incitement”
distinction. The basic idea is that the “Free speech” underlying
hearing to distinction that the NLRB’s Regional Director may
not withdraw the complaint to hearing . “...nor be deprived of
life, liberty, or property, without due process of law.”
(Amendment V. Due Process Clause)
(11) The NLRB’s Regional Director withdrew the
complaint and approved the unilateral settlement without an
administrative law judge’s approval to cut off my remedy of
reinstatement and back pay with no hearing, that the First
Amendment’s “overbreadth” doctrine against assertion of the
third party’s nghts on legal duty. The reinstatement and back
pay is private contract between the employer and employee
underlying obligation, the cutoff reinstatement and unilateral
settlement without charging party agree to, where as the
contract clause was impairment of creditors’ rights.
(Il) The job’s underlying private contract which is
not in public employment case. According the worked had a
18
“de facto” tenure claim, and that such a claim, if proven, given
plaintiff a property interest. (Perry v. Sindermann, 408 U.S.
593 (1972).) The NLRB’s Regional Director and General
Counsel upon discretionary or “prudential” considerations can
not mandated by the article III] “case or controversy”
requirement. Therefore, it is found that the NLRB with the
China Press made a Special! relationship to conspire and injure
a third party's nights.
(IV)The China Press attorney obscured evidence that
demonstrated that actual malevolence existed, defamatory and
libel. The NLRB legislature cutoff my right to reinstate my
former position and approved a large difference in amount of
back pay with no hearing, no administrative law judge's
approval and “voluntarily” refused to agree, the NLRB’s
Regional Director only with freedom from arbitrary
adjudicative procedures, with impairment of third party rights
under legal restriction which prevent the third party from
exercising his constitutional rights.
(V) Contract clause : The unilateral settlement is offer
by employer only, recommended by counsel and NLRB’s
Regional Director approved the employer's offer with police
power, but the paycheck held by NLRB’s Regional Director
over one year which not in “legal tender” to pay. Then, the
case totally cease-and-desist by order with no remedies, no
compensation. “...nor shall private property be taken for
public use, without just compensation. (Amendment V.
Taking Clause. And Contract Clause. )
The China Press's illegally deducted my wages and
fired me because of my union activities and breached the
working contract. A state body may not absolve a debtor of its
obligation to pay. “No State shall...pass any..... Law
impairing the Obligation of Contract...” (Article I, Section
10, Contract Clause.) which the NLRB’s Regional Director
19
misused his official powers and abridged my total rights and
liberties, these are; (1)The private litigants Civil mght with the
access to courts was denied(2)The state action, “Nexus”
doctrine — the significance of state involvement with
“peremptory challenges as joint participation.
Accordingly, whether pro se taking analysis applies
in cases where the NLRB takes all intangible property interest
of the worker's that | had a protect interest entitling him to
procedural! due process.
X : CONCLUSION
First, individualistic theories are concerned with our
negative freedom from government intrusion (civil liberties),
and in those terms the state denies equality only when it is
imposes laws or regulations that insist on inequality. If we are
thinking of the positive right to the support of government
(civil mghts), we will consider that the state also denies
equality when it tolerates inequality. In other words, is equal
protection a claim on the state or a protections against it ?
Second, individualistic teachings hold that the
government is intended to serve private liberties, and
consequently, the state is limited to, and responsible for, only
the narrow sphere of formal, public institutions. It has neither
the duty nor the right to interfere with society. Defenders of
public liberty, by contrast, are inclined to argue that public
authority is responsible for ordering private life. In short, to
what extent does our right to equal protection extend beyond
formal public institutions into social and economic life ?
In this case, the NLRB issued a complaint, scheduled
a hearing, and then denied the hearing (waiver, cancel, not
open, withdrawal, or public prosecutor, judge absence as
nothing there...with “unknown”...etc.) without any legal
20
reasons: it looks like to be “in the absence of congressional
legislation,” but, the “absence” with “state “NON” action” was
an “action” to conjunction the after the scheduled “hearing”
continued “state action” withdrawal the complaint, instead of a
mandate to interrupt speech, to approve an unilateral
settlement without any judicial review which as is to totally
deprive a individual citizen’s life, liberty and property against
the private party’s civil rights and liberties. This is not a
metaphysical doubt, but demonstrates that summary order and
denied the rehearing was clearly inappropriate in this case.
This Court should grant the Petitioner consideration to
these issues in order to guide lower federal court on the proper
use of the award of summary order.
For these various reasons, the petition for certiorari
should be granted.
Respectfully submitted,
LONGINUS YEN (Pre Se)
30 — 35 73” Street, #3C
Jackson Heights,
New York, NY 11372
(718) 335 - 8265
2]
Appendix
NO. 97 - 6050
~~ IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
LONGINUS YEN,
Plaintiff — Appellant,
V.
NATIONAL LABOR RELATIONS BOARD
and
PACIFIC CULTURE ENTERPRISE,
D/B/A THE CHINA PRESS,
Defendants-Appellees.
On Appeal From The UNITED STATES DITRICT COURT
For The Southern District Court of New York
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT FOR REHEARING
~~ BRIEF FOR PLAINTIFF - APPELLANT
LONGINUS YEN
COUNTERSTATEMENT OF SUBJECT MATTER
AND APPELLATE JURISDICTION
NLRB only notice of the charges and needed some kind of
opportunity(1) to respond before withdrawal of the complaint,
not a full evidentiary hearing of the sort found necessary(2) in
the case, the procedures to which the case was entitled were to
be judged by independent constitutional standards(3), not
merely by whether NLRB complied(4) with the state statutory
scheme(5). Since the constitution requires at least “some kind
of a hearing” (6)prior to the deprivation of any significant
property interest(7). 1 believe, NLRB withdrawal of the
complaint for hearing denied due process. More important,
which reason is prohibited(8) speech that is wholesale
conviction.
la
STATEMENT OF THE ISSUE PRESENT
The National Labor Relations Board policy and Act.
Against allowing federal courts to act like a “roving
commission” whose purpose is to enforce judges’ Own views
of legality or the interest of “bystander” in having
constitutional or statutory principles adhered to.
According “While the courts have declared that there
action where there 1s violation of a constitutional nght, there
must be a substantial showing on the face of the complaint that
such violation existed” | present that the National Labor
Relations Board serial violations of constitution of which
double abridgment of my First Amendment nghts, and double
No Due Process of law that one is deterrent my right to court
and second breached The Contract Clause when the NLRB
did not fulfill its obligations on purpose, which by virtue of
the Fifth Amendment’s Due Process of Law and the unilateral!
settlement agreement 1s violation of Taking Clause.
(1) Charge/Affidavit/Investigation. (2) Complaint/Right to call
Witnesses, Right to Counsel, Right of cross-examination/ “Case or
Controversy ”? (3) Constitutional standards : To Court. (4) Merely /
Discretionary. (5) Scheme / “Prudential” considerations /
Unconstitutional standards: Advisory opinions / Violent interference /
Not normally permitted to assert the constitutional rights of others,
only his own/applied and denied. (6) At least when applied according
to Constitutional rights / First Amendment / Freedom speech / At least
some kind of a hearing. (7) may be “utilized” not to effectuate a
“voluntary”/free wills, but for deprivation. (8) Third party interest :
Conspiracies / Assert the constitutional rights of persons not before the
Court / The Unilateral Settlement Agreement with The Taking Clause
/ The First Amendment “overbreadth” doctrine / To impairment the
Obligation of Contract / To obstructing the administration of justice. /
significant due process barriers to wholesale convictions for prohibited
speech
2a
STATEMENTS OF THE CASE
A: The National Labor Relations Board's Unfair Labor
Practice Proceeding (May have been overlooked) * p =
Appendix page No.
1: After the AFFIDAVIT(p36-9) confirming the unfair
labor practices of the China Press, an offer for settlement was
never made. Aug 9, 1995, a hearing was scheduled for Jan 29,
1996. But on Jan 12, 1996 the hearing was rescheduled to May
14, 1996 due to the sudden shutdown of the Federal
Government. On April 18, 1996 my counsel contacted me
because he wanted to meet before the hearing. Again a
rescheduling order was placed to reschedule from May 14,
1996 to July 2, 1996. In the last week before the hearing |
conferred with my counsel about the case. Early in the week
my counsel asked me if | wanted to settle. | did not approve of
it(p74). Later in the week before the hearing, China Press's
attorney faxed my letters to my counsel. At which time my
counsel decided to settle and asked me for authorization. |
refused to settle a few days before the hearing asserting that
the letters was my constitutional right’ My counsel then
informed me that a settlement would go ahead with or without
my approval. On Sunday, June 30, 1996, China Press
proposed(p93 - 94) a settlement of which my counsel
recommended yet did not sign.
2: On July 1, 1996 1 sent a four page(p82-9) document
saying that what | wrote was protected by my First
Amendment Constitutional Rights. | denied that what | wrote
was not real and just a story, it did not mean to promote any
harm. (First time to applied my First Amendment rights. )
3: On July 2, 1996 when | arrived at the court, | found out
that my hearing was canceled. | had a receptionist there to sign
a paper confirming | came to the court(p95-6). No one told me
that the hearing was canceled, who has the power and ability
to cancel my hearing? In the afternoon | received a letter dated
July 1, 1996 asking me to sign the proposed settlement.
Nothing in the letter even hinted that the hearing was going to
be canceled. | was given seven business days to give my
position on why the Regional Director should not accept the
agreement (p90-94).
4: July 5,1996, I send letter by fax, by mail, by registered
mail and by hand. In which | try to explain “.. their equivalent
fiction and poetry that totally should be totally protected under
the Constitution” It is the second time | apply my First
Amendment rights which would violation not now before the
court(p97-8) and on July 10,1996 an illegal answer letter from
Regional Director that is interrupted the Speech Which is
prohibited (p99-105).
5: On July 22, 1996 | wrote an appeal to the General
Council to defend my first amendment right. | asserted that |
was the president of a newsletter and | was just asserting my
rights. They denied my appeal on the basis that my argument
was invalid on Aug.l4, 1996(third time)(pl07_ -
p.111)Another officer which interrupted the speech.( p.113 -
114)
The _ three letters I wrote, . 4y_1, July 5 and July 22
./996_ was applied according to us terms and their were all
protected under my First Amendment Constitutional Rights.
No one in any manner, any duty of an officer, any authority
to abridge these rights unless before a court.
These applied letters and denied answer _ letters which
are the substantial showings.
B: Law and facts. (may have been miscomprehended.)
da
In fact, before April 18,1995, The China Press from year
1991 frequently illegally deducted my wages which until on
April 17, | cannot afford their tyranny so | wanted going to
organize union to protect my right. The illegal deductions are
prohibited by New York State Labor Law ( p 40) On June
30,1996, approximately $50,000(p.49 - 54). 1 cannot believe
the Constitution's Fifth Amendment's Taking Clause protect
my “property” just ($3,400) compensation for public use and |
believe The Constitution article 1, Section 10: “No State
shall...pass any... Law impairing the obligation of contract...”
The NLRB’s laws breached my former working (Expressed)
contract with The China Press; they worked in a conspiracy. |
believe any contract (agreement) signed without a acceptance
which should valued that factor 1s definitely satisfied if either
the litigant or the third party is placed under legal restrictions
which prevent the third party from exercising of my
constitutional right. The third-party standing : One of
principal functions of the standing doctrine is to
implement the general rule that a litigant may normally
not assert the constitutional rights of persons not before
the Court. And The NLRB rule is_ prudential, not
constitutional which the general rule against third-party
standing is founded upon discretionary or “prudential
considerations, and is not mandated by the Article Ill “case or
controversy” requirement. According to the NLRB Regional
Director’s letter of July 10,1996 that is a advisory opinion
which give advice about particular legislative or executive
action, when no party is before the court who has suffered or
imminently faces specific injury. | believe the advice letters
that are issued from NLRB Regional Director on July 10,1996
and General Counsel on August 14, 1996 appeal the case is
existence of a special relationship between the litigant and the
third party, such that vindication of the third party’s rights will
remove the injury in fact suffered by the litigant, and also
such that the litigant’s interest is so closely analogous to the
interest of the third party that the former is an effective
Sa
proponent of the latter's rights. (Singleton v. Wulff, 428 US.
106 (1976).) The special relation may look which ts such that
grant of the relief being sought will remove the injury-in-
fact to the litigant and the litigant is an effective proponent
of the third party’s interest.
And, the First Amendment “overbreadth” doctrine can be
viewed as the exception to the rule against assertion of a third
party s rights. (The Another Exceptions)
And, the NLRB held the checks that after close case
approximately one vear and NLRB to breached contract's
obligation which is (second times) substantial showing there
No Due Process of Law. In all of the sense that the injury
would not have occurred unless the challenged action had
taken place. (The fraud from p.4 to NEW evidence p163-
p174, ending Nov. 13,1997)
SUMMARY OF ARGUMENT
When a person's life, liberty or property are at stake in a
traditional civil or cnminal lawsuit, the range of procedural
protections required by the Constitution is at its broadest.
Certainly as a matter of practice, and probably as a matter of
constitutional due process, the state may not take life, liberty
or property as the result of a lawsuit - even if the suit ts
brought by a private party against another private party -
without granting such protections as the right to call witnesses,
the right to counsel, the night of cross-examination, and the
right of judicial review. Even where the NLRB creates the
property interest in question, it is not free to establish
procedures for terminating that nght- “property cannot be
defined by the procedures provided for its deprivation any
more than can life or liberty. The mght to due process ‘is
conferred, not by legislative grace, but by constitutional
guarantee.’..[OJjnce it 1s determined that the due process
Clause applies, ‘the question remains what process 1s
6a
due.”.... The answer to that question is not to be found in the...
statute [creating the property nght.|” Cleveland Bd. of Ed.
}. Loudermill, 470 U.S. 532 (1985)
The unilateral settlement agreement was not assert my
constitutional rights which include First Amendment right, not
before court. Even the Regional Director own his motion in
informal case or upon general counsel discretionary. Because
Violent interference is prohibited by 18 U.S.C #245, part of
the 1968 Civil Right Act.
ARGUMENT
1 :The China Press obscured evidence to demonstrate that
actual malevolence existed, defamatory and libel. The NLRB
with freedom from arbitrary adjudicative procedures that is
conspiracy.
A statute is overbreadth if in addition to proscribing
activities which may constitutionally be forbidden it ALSO
sweeps within its coverage speech or conduct which 1s
protected by the guarantees of free speech or free
association.(Thornhill v. Alabama, 310 U.S. 88 (1940)).By
which a person _is not normally permitted to assert the
constitutional rights of other, only his own. The statute is
prohibited all speech that interrupted, in any manner, any duty
of an officer. Thus it effectively gave the police “unfettered
discretion to arrest individuals for words or conduct that
annoy or offend them.” (Houston yy. Hill, 482
U.S.451(1987)). The Police Interference.
The China Press misled NLRB to approve an unilateral
settlement agreement which was an Impairment of third party
rights and the Relation to overbreath doctrine the First
Amendment..
7a
(A) Legal duty : If either the litigant or the third party 1s
placed under legal restrictions which prevent the third party
from exercising his constitution rights.
(B) Special relationship : The existence of a “special
relationship” between the litigant and the third party whose
rights he seek to assert is at least helpful, and according to
some members of the Court is essential to jus tertti. The Court
generally looks for a relationship which is such that: (a) grant
of the relief being sought will remove the injury-in-fact to the
litigant: (b) the litigant is an effective proponent of the third
party s interests. (Singleton v. Wullf, 428 US 106 (1976)
plurality opinion of Justice Blackmun)
Relation to overbreadth the First Amendment doctrine to
the rule against assertion of the third party rights. The First
Amendment “overbreadth” doctrine can be viewed as the
exception to the rule against assertion of a third party’s mghts.
A party to whom a criminal statute clearly and
constitutionally applies may be permitted to argue that the
Statute 1s applicable to some types of conduct which, if
engaged in by third parties, would be constitutionally
protected. Although assertion of a third party’s rights is at the
core of the overbreadth doctrine, overbreadth is nonetheless
distinguishable from the exceptions to the ban on jus tertii
considered above. In the overbreadth context, the third parties
are hypothetical, and the litigant is also asserting his own
constitutional nght not to be convicted under a broadly-drawn
Statute which may chill his freedom of expression.(The
“Core” is a Labor case or Constitutionally third party’s
rights?)
Two or more persons who conspire to deprive any one of
equal protection or privileges and immunities under the law,
may be subjected to civil suit under 48 U.S.C. # 1985 (c). This
provision, which derives from the 1871 Civil Rights Act.
Appears to be applicable even where there is no state action,
so long as access to a federally-guaranteed nght is infringed or
sought to be infringed. (Please see the appendix Pages:4, 43,
49.59.79 _82-102. Page 4 is the core. )
2: The Nationa! Labor Relations Board action is subject to the
“mere rationality’ standard that is unconstitutional. The
constitutional right which are applicable against private
interference include: the right to inform federal officials of
violations of federal law and the night to assemble to petition
Congress for a redress of grievance. These rights are NOT
necessarily Self-Executing. That is one private citizen may
recover damages against another, or obtain a injunction
against him, for violation of any of these rights, unless a
congressional statute so provides.(Public accommodations 1s
banned, and made subject to private and government civil suit
in the Public Accommodations Title of the Civil Rights Act
of 1964, 42 U.S.C # 2000a ef seg.) This title was based on
Congress’ power to regulate interstate commerce, not power to
enforce the Civil War Amendments.
(a)Withdrawal complaint to hearing which is not by
lack of merit (Closed court first than given reason ? ), is
upon discretionary or “prudential” considerations, and is not
mandated by the Article II] “case or controversy” requirement.
That is no “due process of law’.
The NLRB case handling manual ; Section 10140.3
Violence: Where there are relatively isolated instances of
violence that have since terminated and if the Regional
Director is satisfied that in all the circumstances there will be
no recurrence of violence, an informal settlement my be
utilized to effectuate a voluntary settlement. It is Violated
interference with a person’s enjoyment of his civil nghts,
even if it is not part of a conspiracy (as is required for
application of 18 U.S.C. #241) and even if it involves no state
9a
action (as is required for 18 U.S.C. #242 ) is prohibited by 18
U.S.C. #245, part of the 1968 Civil Rights Act. Or, the only
right explicitly given by the Fourteenth Amendment is the
right to be free of certain types of Governmental Police
action ?
The Supreme Court’s case on what ts due reflect strongly
the notion that the principle reason for procedural safeguards
is to_prevent inaccurate decisions. This notion implies that if
the means by which a decision is... his autonomy respected, by
being permitted to participate in the decision, and by receiving
a reasoned explanation of adverse conduct. But the NLRB’s
Director by “mere rationality” withdrawal of complaint prior
to hearing that it could not be otherwise than urging the
recognition of “ Freedom from arbitrary adjudicative
procedures as a substantive of one’s liberty. ”
(b) Undue influence with violence interference to make
“Unilateral” settlement agreement effectual purposes of the
National Labor Relations Act.
a; The Fifth Amendment, Taking Clause with Due
Process Clause.
The ban on the taking of private property for public
use, without just compensation.
The “Unilateral” setthkement agreement that | did not
sign nor agree to and the unilateral settlement agreement made
by undue influence which was not by voluntary. It is maybe a
illegal agreement because that Contracts obstructing the
administration of justice.
b; Article I, Section 10, Contract Clause which with
Due Process Clause.
The Constitution article 1, section 10 ; prohibition on
the impairment contract. (The Contract Clause was
10a
breached when the NLRB did not fulfill its obligations on
urpose
On October 10,1997 The NLRB Region #2 Office
mailed a blank paper with two checks issued by The Chia
Press and the dated was July 1.1996 that face amount is
$3,167.90. | returned it because it is not in “legal tender”.
Then, October 15,1997 The Board agent, Esther Morales may
through somebody deliver to me same two checks, and in
doing so breaking my mail box. There was also no stamp or
meter stamp or any indication that it was mailed by the United
States Postal Service. | returned it again and report to NLRB
D.C. Office on October 16,1997. On November 5,1997, the
Regional Director, Daniel Silverman mail to me two letters,
On November 13,1997, The NLRB D.C. Office Assistant
General Counsel Celeste J. Mattina mailed a letter to me
and said: *...Due to circumstances beyond the Region’s
control.” But I believe that is NLRB did not fulfill its
obligation on purpose which is very clearly evidence to
showing The NLRB with The China Press conspiracies.
Because, the check after six months is “Stale check” that the
bank is not required to pay it. And | believe, in the sense that
the injury would not have occurred unless the challenged
action had taken place. The contract obligation is breached
because of Malpractice and negligence or may fraud. But, |
believe the action is part of conspiracies.
3: Civil damages and punitive award remedies;
CONCLUSION
For the foregoing reasons, | believe this is totally a
censorship issue. This is NLRB Director pulling view that he
personal!y doesn't like and approved by General Counsel thus
they decided to act as a Labor Relations Czar.
lla
According the FEDERAL RULES OF APPELLATE
PROCEDURE Rule 48. Masters : ”....appoint a special master
to hold hearing.” It is necessary, because appellant 1s pro se
that very hard to read, to write, to hearing and to speak well,
the fair jurisdiction only showing the original evidence. The
evidence will talk. Much of the evidence is in Chinese. Should
the court be unable to read it, | will gladly iterpret it for the
court or | can bring a translator or the court can hire its own
unbiased interpreter
Maybe this case 1s historical one and only case that
government double violated First and Fifth Amendment case
which is very important for Constitutional conscience. But |
wish the hearing no more one hour the master’s compensation
no more than $100 include taxtes.
Respectively submitted,
is’ LONGINUS YEN
(Pro Se)
12a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
United State Court House
40 FOLEY SQUARE, New York 10007
George Lange Ill
Clerk
At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the United States Courthouse,
Foley Squares, in the City of New York, on the 17" day of
March one thousand nine hundred and ninety-eight.
Present:
PRESENT:
HONORABLE ELLSWORTH VAN GRAAFEILAND,
HONORABLE RICHARD J. CARDAMONE,
HONORABLE JOSEPH M. McLAUGHLIN,
Circuit Judges, 97-6050
Yen
Appellant,
v.
Nat! Labor Relations
Appellee
A petition for rehearing having been filed herein by
LONGINUS YEN, Upon consideration thereof, it is Ordered
that said petition be and it here by is DENED.
GEORGE LANGE _Iil,
Clerk
MAR 17, 1998 /s/ Beth J. Meador
DATE Beth J. Meador,
Administrative Attorney
l3a
UNITED STATES COURT OF APPEALS SUNY
FOR THE SECOND CIRCUIT 96-CV -9566
SUMMARY ORDER Gniesa, DJ
THIS SUMMARY ORDER WILL NOT -BE PUBLISHED IN
THEFEDERAL REPORTER AND MAY NOT BE CITED AS
PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER
COURT, BUT MAY BE CALLED TO THE ATTENTION OF
THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE
OF THE CASE, IN A REALATED CASE, OR IN ANY CASE
FOR PURPOSE OF COLLATERAL ESTOPPEL OR RES
JUDICATA.
At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the United States Courthouse,
Foley Square, in the City and County of New York, on the 24”
day of NOV one thousand nine hundred and ninety-seven.
PRESENT:
HONORABLE ELLSWORTH VAN GRAAFEILAND,
HONORABLE RICHARD J. CARDAMONE,
HONORABLE JOSEPH M. McLAUGHLIN,
Circuit Judges.
LONGINUS YEN,
Plainuff-Appellant,
-V,- NO.97-6050
NATIONAL LABOR RELATIONS BOARD:
PACIFIC CULTURE ENTERPRISE, INC.,
D/B/A THE CHINA ORESS,
Defendants-Appellees.
FOR APPELLANT: Longinus Yen, pro se, New York.
FOR APPELLES.
Margery E. Lieber,
Assistant General for Special Litigation,
Ene G. Moskowitz,
l4a
MEL LI Ty Fone,
PEGI DE MLL LIE IEEE RY OAM LOS ME fee aoe
ee
£
=
a
&
Deputy Assistant General Counsel for Special Litigation,
and
Denise F, Meiners,
Attorney, Special Litigation Branch,
National Labor Relations Board, Washington, DC.
Appeal from the United States District Court for the
Southern District of New York(Griesa, C.J.)
This cause came on to be heard on the transcript of
record from the United States District Court for the Southern
District of New York and was argued.
ON CONSIDERATION WHEREOF, it is hereby
ordered, adjudged, and decreed that the judgement of the
district court is AFFIRMED.
Longinus Yen was employed by Pacific Culture
Enterprise, Inc., d/b/a The China Press(“China Press”), as a
salesperson and business reporter from 1990 until his
dismissal in April 1995. Yen alleges that he was fired in 1995
because he planned to form a-union to protect himself and the
other employees at China Press from the constant increases in
advertising minimum sales per month required of the
salespersons, and form the threats of being fired.
In April 1995, Yen filed an unfair labor practice charge
against China Press with the National Labor Relations
Board(“NLRB”) Region 2 Office. The Regional Director of
Region 2 issued an unfair labor practice complaint, and
settlement negotiations took place from June 1995 through
June 1996. Yen refused all offers of settlement.
In July 1996, the regional director considered a
settlement agreement that provided that he would be entitled
to backpay of $3,400, but that he would not be reinstated.
15a
Yen appealed the settlement agreement and subsequent
dismissal to the General Counsel’s Office of Appeals. The
General Counsel denied the appeal and sustained the
settlement. China Press subsequently complied with the
settlement agreement, and the unfair labor practice case was
officially closed in November 1996.
Seeking judicial-review of the decision of the General
Counsel, Yen appealed pro se to the United States District for
the Southern District of New York (Gertsa, C.J.) . The court
dismissed the complaint for lack of subject matter junsdiction.
Yen appeals.
The federal courts do not have authority to review the
decision of the NLRB’s General Counsel to dismiss an unfair
labor practice complaint and enter into a settlement in which
the charging party refuses to join. See National Labor
Relations Board v. United Food & Commercial Workers
Union. Local 23, AFL-CIO, 484 U.S. 112, 114 (1987);
Beverly Health and Rehabilitation Servs. V. Feinstein, 103
F.3d 151, 153-154 (D.C. Cir. 1996); National Maritime Union
v. NLRB, 423 F.2d 625, 626(2d Cir. 1970) (per curiam). The
federal courts do not have subject matter jurisdiction to
entertain Yen's sult.
We have considered all of Yen’s other argument and
find them to be without merit.
Accordingly, the judgement of the district court is
affirmed.
NOV 24. 1997 For the Court,
DATE /s/ George Lange, Ill,
Clerk
loa
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ocean awe Re me enema W
LONGINUS YEN,
Plaintiff, 96 CIV, 9566
-againsi- ORDER OF
DISMISSAL
NATIONAL LABOR RELATIONS BOARD;
PACIFIC CULTURE ENTERPRISE, INC.,
D/B/A THE CHINA PRESS
Defendants |
Plaintiff bring this action pro se. He seeks judicial
review of the National Labor Relations Board(“NLRB”)
General Counsel's decision sustaining an informal settlement
with plaintiff's employer. Plaintiff alleges that the settlement
was reached without his consent in violation of his
constitutional mghts. He seeks monetary damages and
injunctive rehef. We grant plaintiff request to proceed in
forma pauperis solely for the purpose of this order, but
dismiss the complaint for lack of subject matter jurisdiction.
Background
Plaintiff, a salesperson and business reporter for Pacific
Culture Enterprise, Inc. doing business as the China Press, was
terminated on April 17, 1995, allegedly because he attempted
io organize a union. Plaintiff reported his termination to the
NLRB which issued an unfair labor practice charge against his
emplover on April 18, 1995. On August 9, 1995, the NLRB
issued a complaint and a hearing was for January 29, 1996.
Which never took piace.
Settlement negotiations continued for approximately one
year, between June 17, 1995 and Jane 28, 1996. During that
17a
time, Plaintiff refused to consider any settlement offers. On
July 1, 1996. The NLRB proposed a pre-hearing settlement
which became final on July 10,1996. Plaintiff objected to the
settlement agreement because it did not allow for his
reinstatement and terminated his back pay at August 1, 1995.
Plaintiff appealed to the NLRB General Counsel, who
sustained the settlement by letter dated August 14, 1996.
Plaintiff now seeks judicial review of the settlement decision.
Right to Judicial Review
The subject matter jurisdiction of the federal district
courts is limited and is set forth generally in 28 U.S.C. #1331
and 1332. Federal jurisdiction is available only if the claim
arises “under the constitution, laws or treaties of the United
States.” 28 U.S.C. #1331. A decision of the NLRB General
Counsel to dismiss a complaint and sustain an informal,
prehearing settlement entered into without the charging
party's consent is not subject to judicial review under either
the National Labor Relations Act. or the Administrative
Procedures Act. National Labor Relations Bd. V. United Food
and Commercial Workers Union, 484 U.S. 112 (1987). Here,
because plaintiff's complaint was withdrawn by the informal.
29 C.F.R. #101.9 (c\(3). An informal settlement sustained by
the General Counsel is not subject to judicial review. Id.
Therefore, this court lack subject matter jurisdiction to review
this claim.
Conclusion
Accordingly, the complaint, filed in forma pauperis
under 28 U.S.C. is dismissed because it fails to allege any
facts establishing subjection, Fed. R. Civ. P. 12(h)(3), and
therefore “lacks an arguable basis in law or in fact.” Neitzke
v._ Williams, 490 U.S. 319, 325 (1989); 28 U.S.C. #1915
(e)(2). We certify pursuant to 28 U.S.C. #1915 (a)(3) that any
18a
ee
Beh 0d Ly SAB al RW a Re aR ee
appeal from this order would not be taken in good faith
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED:
DEC 20. 1996 is/ THOMAS P. GRIESA
DATE Chief Judge
19a
United States Government
NATIONAL LABOR RELATIONA BOARD
OFFICE OF THE GENERAL COUNSEL
Washington, D.C. 20570
August 14, 1996
Re; Pacific Culture Enterprise, Inc.
d/b/a China Press
Case No. 2-CA-28359
Dear Mr. Yen:
Your appeal from the Regional Director's appeal of a
Unilateral settlement agreement in this case has been
carefully considered.
The appeal is denied substantially for the reasons set forth in
the Regional Director's letter of July 10, 1996. Although you
contend that the threatening remarks contained certain letters
you wrote to the Employer were “used metaphorically”, 1t was
concluded that they were of sufficient clarity and directness to
constitute a lawful basis for the Employer to consider you as
unfit for reinstatement. Contrary to your contention appeal,
such threatening remarks are not protected by the Constitution
within the ambit of employee rights under the National Labor
Relations Act. and neither your political views nor those of the
Employer are of any concern to this Agency .
Accordingly, further proceedings herein were deemed
unwarranted.
Sincerely,
Fred Feinstein
General Counsel
By _/s/ Walter meyer
Acting, Director Office of Appeal
20a
National Labor Relations Board Longinus Yen
1099 14" Street NW 35-30 73” Street #3C
Washington, DC 20570 Jackson Heights, NY 11372
Attn. : General Counsel Office of Appeals.
July 22,1996
Re: Pacific Culture Enterprises Inc., d/b/a The China Press
Longinus Vs. The China Press
Case Number: 2-C-28359
Notice of Availability of a General Counsel to Exercise
Jurisdiction and A |
In accordance with the provisions of the National Labor
Relations Act, Section 3(d), vou are hereby notified that a
General Counsel of this office of appeal. Is available to
exercise the court’s jurisdiction and to conduct any of all
proceedings in this case including a jury or non-jury trial, and
entry of a final judgement. Exercise of this jurisdiction by a
general counsel is, however, permitted only if all parties
voluntarily consent.
This is an appeal to the General Counsel Office of Appeals to
ask for the reconsideration of the case. 1 ask for a
reconsideration due to the misunderstanding of what
happened. There have several incidents which have not be
taken into account when my case was consider.
The first is a letter from the National Labor Relations Board, it
stated that because | have sent threatening letters to the
corporate officers | have lost my chance of reinstatement in
the company. This is slightly untrue. | am the president of a
newsletter called the China Press Weekly which ts a division
of SSERPXE. SSERPXE is held and operated To All To
Print, Inc.,. As the president of an newsletter ] wrote articles
about the what has happened to me. These articles were
written to reflect the tvranny of the China Press. Any persons
2la
who were fired from the company unfairly or unlawfully
would have been written about it just so happens that | am the
most accessible person to write about. This is true because
some persons have two identities, one identity is the corporate
identity. In this case my corporate identity is president of the
China Press Weekly. There is also a personal identity which in
this case | am a unlawfully discharged employee. It 1s as at the
corporate identity did | write of an unfair and unjust story of
my personal identity. | was just merely exercising my
constitutional rights as an American to wmite and say
whatever | feel. | was also exercising the freedom of the press
It was my newsletter that wrote those articles not my personal
identity. And if | should be reprimanded for writing, my nights
have been violated.
The second, my appeal is also based on other incidents not
taken in to account that from April 17, 1995. The China Press
had acted in a series of violations that breach the National
Labor Relations Act. One such incident ts transpired on April
27, 1995 approximately 10:25 A.M. | was at the China Press’s
Flushing office when two employees there received phone
calls from the Chinatown office ordering them not to help or
cooperate with me. This is in violation of section 7 and section
8(aX 1) of the National Labor Relations Act.
An other incident happened the same day 10:32 P.M. | (as
president of China Press Weekly) faxed an Advertisement
Insertion Order to the company informing them of my
purchase of one page of commercial advertisement. The
advertisement would be for a book my company may be
publishing. My request for the ad went unheeded and thus ts a
violation of my Constitutional nghts. It_is liberty of free
speech under the Burger Court’s definition.
The during next few day again another incident occurred. |
have written a bargaining letter to the company asking for my
22a
reinstatement as an employee . It 1s within my rights (Section
&(d) National Labor Relations Act.) for the company to
respond as quickly as possible to the attempts at bargaining. It
has been over One year and the letter has gone ignored. Ones
again my rights have been violated.
On May 22, 1995 midnight a China Press employee
accompanied by two men came into my home without my
consent and threatened me, my son and wife. He said if | did
not cooperate with the company the communist would not let
me get away with it. This is not only violation of my section 8
rights but this is also a breach of cnminal laws.
On June 19, 1995 The China Press sued me at the New York
State Labor Department. They tried to cancel my
unemployment. On July 11, 1995 The administrative law
judge gave the ruling. The employer's objection 1s overruled.
The China Press stated that | had sent threatening letters when
in fact they were part of my many newsletters. They submitted
parts and words from those newsletters to my consultant at the
Labor Relations Board. But these words were taken out of
context and they were used metaphorically in my newsletters.
lf any he threat made in those letters cannot be used as
evidence due to the fact that ] was under service mental stress.
| was threatened to be killed by China Press employees and
was just sued to cut off my unemployment benefits.
They although acted within their full legal mghts and used
illegal methods. their actions and powers were directed at me
with supreme “malice”. The letters written on August 1, 1995
were jus: in response their unfair and unjust methods for me to
give In.
| feel my perception was too difficult and | took an Initial
Psychological Evaluation & Progress report on Oct 13, 1995.
23a
It stated | had some minor problems with concentration. And
a slight case of Paralexia which is impairment of reading
ability characterized by misinterpretation of transposition of
letters or words. This may not seem much but | have been an
accomplished writer since | was fourteen. Since then | have
written over three million words.
The third, in all | feel that my rights as American citizen has
been violated and this case close prematurely by the Board
because of their lack of careful examination of the events |
have just described to you now. | wish a reexamination of my
case against The China Press. | hope this appeal will help see
the tyranny the communists and their owned and controlled
newspaper publisher really are.
Very Truly Yours
/s' Longinus Yen
Enclosures
CC: Daniel Silverman
National Labor Relations Board, Region 2
26 Federal Plaza #3614 NY,NY 10278-0104
SAO GRY PORTER SURES AIO EOE AEREL MONA BOP SM GSE
United States Government
NATIONAL LABOR RELATIONA BOARD
Region 2
26 Federal plaza — Room 3614
New York, NY 10278-0104
July 10, 1996
Longinus Yen
35-30 73™ St., Apt 3C
Jackson Heights, New York 11372
Re: Pacific Culture Enterprise, Inc. d/b/a China Press
Case No. 2-CA-28359
Dear Mr. Yen:
The above-captioned case charging a violation under
Section 8 of the National Labor Relations Act. as amended has
been carefully investigated and considered.
On the basis of the investigation and in view of the
undertaking contained in the attached settlement agreement, it
does not appear that it would effectuate the purposes and
policies of the Act to institute further proceedings at this time.
The Region issued complaint in this matter alleging that
the above-named Employer violated Section 8(a)(1) and (3 by
terminating you on April 17, 1995 because of your union and
protected concerted activities. The attached settlement
agreement addresses the conduct of the Employer that Region
deemed to be violated of the Act. specifically, the settlement
provides for you to be made whole and to remove any
references from your personal file to your discharge and notify
you in writing that has been done. In addition, the settlement
agreement provides for a posting of Notice in which the
Employer assures employees of their Section 7 rights and in
25a
which the Employer commits not to discharge any employee
because of their union activities or because they engage in
protected concerted activities. The settlement agreement did
not provide for your reinstatement, because it was determined
that you engaged in post-discharge misconduct by sending
threatening letters to the Employer representative that
provided a sufficient basis for the Employer to refuse to
reinstate you to your former position.
On July 1, 1996, a copy of the proposed settlement
agreement was forwarded to you, and you were requested to
join in the settlement or to submit any objections within seven
days from the receipt of that the letter. By letter dated July 5,
1996, vou objected to the proposed settlement agreement in
this matter because it does not contain a remedy of
reinstatement and cut off your right to receive back pay after
August 1, 1995, the date of the letter send by you to Employer.
Specifically, you stated that your letter of August 1, 1995 was
not meant to be interpreted literally, that it was an exercise of
your constitutional nght to freedom of speech, and therefore
did not constitute a threat to any official of Employer.
Contrary to your assertion that the contents of your
letters are irrelevant, it is established Board law that a
discriminatee’s post-discharge misconduct can forfeit their
right to the remedies of both reinstatement and back pay. A
discriminatee who threatens a corporate officer with physical
harm months after their discharge and without any proximate
provocation risks the loss of their right to back pay and
restatement. The evidence show that you began writing a
series of letters to China Press within a week of your April 17,
1995 discharge. The employer asserts that these letters,
individually and taken as a whole, constitute serious threats of
physical harm and contain obscene language, thereby
disqualifying you from being reinstated to your former
position. After reviewing these letters, 1 have concluded that
26a
vour August |, 1995 letter clearly crossed the boundary from
protected speech to threat the Employer’s chairman with
physical harm. | also note that this letter contains clearly
obscene and offensive language. As a result, | have concluded
that your right to a remedy of reinstatement was cut off and
your back pay was appropziately terminated as of August 1,
1995. The other objections vou raised in your letter of July 5
also do not have merit. There is no law prohibiting contracts
being signed on Sunday and the wording of the settlement
agreement ts not difficult to read.
Inasmuch as the settlement agreement requires, among
other things, that the Employer pay you back pay through
August 1, 1995 and post a notice promising not to discharge
employees who engage in union organizing activities and
protected concerted activities, it appears that the settlement
agreement provides an appropnate remedy and_ fully
effectuates the policies of the Act. Accordingly, | am
withdrawing the complaint and ] am approving the proposed
settlement agreement in this matter.
Pursuant to the National Labor Relations Board Rules
and regulations, you may obtain a review of this action by
filing an appeal with the General Counsel address to the
Office of Appeals. National Labor Relations Board, 1099 14"
Street, NW., Washington, D.C. 20570, and a copy with me.
This appeal must be contain a complete statement setting forth
the facts and reason upon which it is based. The appeal must
be received by the General Counsel in Washington, D.C. by
the close of business at 5 p.m. EST(EDT) on July 24, 1996.
Upon good case shown, however, the General Counsel may
grant special permission for a longer period within to file. Any
request for extension of time must be submitted to the Office
of Appeals in Washington, and a copy of any such request
should be submitted to me. If you file an appeal, please
complete the notice forms enclosed with this letter and send
27a
\
one copy of form to each of the parties. Their names and
address are listed below. The notice forms should be mailed at
the same time you file an appeal, but mailing the notice form
does not relieve you of any necessity for filing the appeal itself
with the General Counsel and a copy of the appeal to me
within the time stated above.
Sincerely,
/s' Damel Silverman
Regional Director
SETTLEMENT ARREEMENT
IN THE MATTER OF JUL 01 1996
Pacific Culture Enterprise, Inc. d/b/a China Press
Case No. 2-CA-28359
The undersigned Charged Party and the undersigned
Charging Party, in settlement of the above matter and subject
to the approval of the Regional Director for the National
Board, HEREBY AGREE AS FOLLOWS:
POST OF NOTICE — Upon approval of this Agreement, the
Charged Party will po?? Immediately in conspicuous places
in and about its plantoffice, including all places where notice
t? emplovees/members are customarily posted, and maintain
for 60 consectutive days from the date of posting, copies of
the attached Notice made a part hereof, said Notices to be
signed by a responsible official of the Charged Party and the
date of actual posting to shown thereon. In the event this
Agreement is in settlement of a charge against a union, the
union will submit forthwith whose signed copies of said
Notice to the Regional Director who will forward thero to the
employer whose employees are involved herein, for posting,
the employer willing, in conspicuous places in and about the
employer's plant where they shall be maintained for 60
consecutive days the date of posting.
28a
COMPLINCE WITH NOTICE — The charged Party will
comply with all the terms and provisions of said Notice.
BACKPAY The Charged Party will make whole Longinus
Yen payment to him of two checks in the total amount of
$3.400. Charged Party shall make statutory deductions from
the first check representing backpay in the amount of $3,034.
No such deductions shall be made from the second check
representing interest in the amount of $336. The checks are
due in the office of Region 2 by no later than Tuesday, July 2,
1996.
SCOPE OF THE AGREEMENT — This Agreement settles
only the allegations in the above captioned case(s), and does
not constitute a settlement of any other case(s) or matters. It
does not preclude persons from filing charges, the General
Counsel from prosecuting complaints, or the Board and the
courts from finding violations with respect to matters which
preccde? the date of the approval of this Agreement
regardless of whether such matters are known to the General
Counsel or are readily discoverable. The General Counsel
reserves the right to use the evidence obtained in the
investigation and prosecution of the above captioned case(s)
for any relevant purpose in the litigation of this or any other
case(s) for any relevant purpose in the litigation of this or any
other case(s), and a judge, the Board and the courts may make
findings of fact and/or conclusions of law with respect to said
evidence.
REFUSAL TO ISSUE COMPLAINT —- In the event the
Charging Party fails or refuses to become a party to this
Agreement, and if the Regional Director’s discrection it will
effectuate the policies of the National Labor Relations Act, the
Regional Director shall decline to issue a complaint herein (or
a new Complaint if one has been withdrawn p????ant to the
29a
terms of this agreement ), and this Agreement shall be
between the Charged Party and the undersigned Regional
Director. A review of such action may be obtained pursuant to
Section 102.19 of the Rules and Regulations of the Board if a
request for same is filed within 14 days thereof. This
Agreement is contingent upon the General Counsel sustaining
the Regional Director’s action in the event of a review.
Approval of this Agreement by the Regional Director shall
constitute withdrawal of any Complaint(s) and Notice of
Hearing heretofore issued 1n the case, as well as any answer(s)
filed in response.
PERFORMANCE - Performance by the Charged Party with
the terms and provisions of this Agreement shall commence
immediately after the Agreement is approved by the Regional
Director, or if the Charging Party does not enter this
Agreement, performance shall commence immediately upon
receipt of the Charged Party of advice that no review has been
requested or that the General Counsel has sustained the
Regional Director.
NOTIFICATION OF COMPLIANCE —- The undersigned
parties to this Agreement will each notify the Regional
Director in writing what steps the Charged Party has taken to
comply herewith. Such notification shall be given within 5
days, and again 60 days, from the date of the approval of this
Agreement. In the event the Charging Party does not enter into
this Agreement, initial notice shall be given within 5 days after
notification from the Regional Director that no review has
been requested or that the General Counsel has sustained the
Regional Director. Contingent upon compliance with the
terms and provisions hereof, no further action shall be taken in
this case.
NON-ADMISSION CLAUSE The sign of this settlement
agreement by the Charged Party shall not constitute an
30a
iicesti Hr hc Saale Gai
admission that the Charged Party violated the National Labor
Relations Act, as alleged in the charge.
The Charged Party agrees that the Notice to Employees
will be posted in English and Chinese and will be posted in its
reception area.
Charged Party Charging Party
Pacific Culture Enterprise, Inc. Longinus Yen
X
By Name and Title By Name and Title Date
/s/ Wong ming jin June 30,96
President Date
Recommended By: Date Approval By: Date
/s/ Geoffrey Dunham 7/1/96 /s/ Daniel Silverman 7/10/96
Geoffrey Dunham
Board Agent Regional Director, Region 2
BY HAND/ MAIL/REGISTERED MAIL/FAX
Re: Pacific Culture Enterprise, Inc., d/b/a The China Press
Longinus Yen v. The China Press
Case No. 2-CA-28359
Dear Mr. Silverman:
| can not accept the settlement agreement that
signed by the Employer in the above-captioned matter. As The
Counsel for the General Counsel Mr. Geoffrey E. Dunham
gave the advised that is not provide for a reinstatement remedy
and due to the objectionable content of my August 1, 1995
letter to The China Press.
The reason are as following:
(A) The Employer signed agreement that date 1s
June 30,1996
It is Sunday Contract- maybe voidable.
(B) The words of settlement agreement is very not
clear and very difficult to read.
(C) The letter for evidence was not in fairness that
willing not to be considered
contemporaneously with it and if all letters
relevant evidence is admissible, except as
otherwise provided by the constitution of the
Unites States, by Act of Congress, by these
rules, or by other rules prescribed by the
Supreme Court pursuant to statutory, Evidence
which is not relevant is not admissible.
| think all sentence is void of meaning and that
letter is Irrelevant Evidence Inadmissable.
(D) 1 admitted write many “writings” may consist of
letters, words, numbers, but their equivalent
fiction and poetry the totally should under The
Constitution of United States of America,
32a
Amendment I: “....Abridging the freedom of
speech, or the press,...” to protect my right.
May these writings is could not to definition
that is misconduct to attacking management
representatives and lose my _ night to
reinstatement.
ei ERR hpi AIN AL RR OEY ¢
ARNE ede SY
(E)1 think, this affair is a private citizen into a
public figure. The Public figures, in the Court’s
definition, are persons who thrust themselves “
into the forefront... of public controversies” and
can be said to have surrendered voluntarily
some of their ordinar private rights.
AQ SEPT AIRE EWE TEAS OSLER SiS 8 OR IIR RON RET AH
July 5, 1996 Very truly yours,
Date /s/ Longinus Yen
‘ Longinus Yen
: Geoffrey Dunham, Esq Tel & Fax (718)335-8265
Hs National Labor Relations Board Beeper: (917)271-9768
United States Government
NATIONAL LABOR RELATIONA BOARD
Region 2
26 Federal plaza — Room 3614
New York, NY 10278-0104
July 1, 1996
Longinus Yen
35-30 73™ Street, Apartment 3C
Jackson Heights, New York 11372
Dear Mr. Yen:
Attached pleased find a copy of the proposed
settlement agreement signed by the Employer in the above -
captioned matter. As | have informed you, the agreement does
not provide for a reinstatement remedy, due to objectionable
content of your August 1,1995. Letter to China Press. If you
do not object to the agreement, please sign and date the last
page of the agreement and fax the agreement back to our
office. Otherwise, pleased be advised that you have
seven (7) business days from the date of this letter to present
your position to the Regional Director as to why the region
should not accept the settlement agreement.
Sincerely,
/s/ Geoffrey E. Dunham
Geoffrey for the General Counsel
(212) 264-0518
FAX (212) 264-8427
SETTLEMENT ARREEMENT_ ~—
IN THE MATTER OF
Pacific Culture Enterprise, Inc. d/b/a China Press
Case No. 2-CA-28359
34a
The undersigned Charged Party and the undersigned
Charging Party. in settlement of the above matter and subject
to the approval of the Regional Director for the National
Board, HEREBY AGREE AS FOLLOWS:
POST OF NOTICE — Upon approval of this Agreement, the
Charged Party will po?? Immediately in conspicuous places
in and about its plant/office, including all places where notice
t? employees/members are customarily posted, and maintain
for 60 consectutive days from the date of posting, copies of
the attached Notice made a part hereof, said Notices to be
signed by a responsible official of the Charged Party and the
date of actual posting to shown thereon. In the event this
Agreement is in settlement of a charge against a union, the
union will submit forthwith whose signed copies of said
Notice to the Regional Director who will forward thero to the
employer whose employees are involved herein, for posting,
the employer willing, in conspicuous places in and about the
employer's plant where they shall be maintained for 60
consecutive days the date of posting.
COMPLINCE WITH NOTICE - The charged Party will
comply with all the terms and provisions of said Notice.
BACKPAY The Charged Party will make whole Longinus
Yen payment to him of two checks in the total amount of
$3,400. Charged Party shall make statutory deductions from
the first check representing backpay in the amount of $3,034.
No such deductions shall be made from the second check
representing interest in the amount of $336. The checks are
due in the office of Region 2 by no later than Tuesday, July 2,
1996.
SCOPE OF THE AGREEMENT - This Agreement settles
only the allegations in the above captioned case(s), and does
not constitute a settlement of any other case(s) or matters. It
35a
does not preclude persons from filing charges, the General
Counsel from prosecuting complaints, or the Board and the
courts from finding violations with respect to matters which
precede? the date of the approval of this Agreement
regardless of whether such matters are known to the General
Counsel or are readily discoverable. The General Counsel
reserves the right to use the evidence obiained in the
investigation and prosecution of the above captioned case(s)
for any relevant purpose in the litigation of this or any other
case(s) for any relevant purpose in the litigation of this or any
other case(s), and a judge, the Board and the courts may make
findings of fact and/or conclusions of law with respect to said
evidence.
REFUSAL TO ISSUE COMPLAINT -— In the event the
Charging Party fails or refuses_to become a party to this
Agreement, and if the Regional Director's discrection it will
effectuate the policies of the National Labor Relations Act, the
Regional Director shall decline to issue a complaint herein (or
a new Complaint if one has been withdrawn p????ant to the
terms of this agreement ), and this Agreement shall be
between the Charged Party and the undersigned Regional
Director. A review of such action may be obtained pursuant to
Section 102.19 of the Rules and Regulations of the Board if a
request for same is filed within 14 days thereof. This
Agreement is contingent upon the General Counsel sustaining
the Regional Director’s action in the event of a review.
Approval of this Agreement by the Regional Director shall
constitute withdrawal of any Complaint(s) and Notice of
Hearing heretofore issued in the case, as well as any answer(s)
filed in response.
PERFORMANCE - Performance by the Charged Party with
the terms and provisions of this Agreement shall commence
immediately after the Agreement is approved by the Regional
Director, or if the Charging Party does not enter this
36a
Agreement, performance shall commence immediately upon
receipt of the Charged Party of advice that no review has been
requested or that the General Counsel has sustained the
Regional Director.
NOTIFICATION OF COMPLIANCE - The undersigned
parties to this Agreement will each notify the Regional
Director in writing what steps the Charged Party has taken to
comply herewith. Such notification shall be given within 5
days, and again 60 days, from the date of the approval of this
Agreement. In the event the Charging Party does not enter into
this Agreement, initial notice shall be given within 5 days after
notification from the Regional Director that no review has
been requested or that the General Counsel has sustained the
Regional Director. Contingent upon compliance with the
terms and provisions hereof, no further action shall be taken in
this case.
NON-ADMISSION CLAUSE The sign of this settlement
agreement by the Charged Party shall not constitute an
admission that the Charged Party violated the National Labor
Relations Act, as alleged in the charge.
The Charged Party agrees that the Notice to Employees
will be posted in English and Chinese and will be posted in its
reception area. ‘
Charged Party Charging Party
Pacific Culture Enterprise, Inc. Longinus Yen
x
By Name and Title By Name and Title Date
/s/ Wong ming jin June 30, 96
President Date
Recommended By: Date Approval By: Date
Geoffrey Dunham
Board Agent Regional Director, Region 2
37a
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
Region 2
PACIFIC CULTURE ENTERPRISES,INC.
d/b/a The China Press
and Case No. 2-CA-28359
LONGINUS YEN, An individual
Complaint and Notice of Hearing
Longinus Yen, an individual, herein called Yen, has
charged that Pacific Culture Enterprises Inc. d/b/a China
Press, herein called Respondent, has been engaging in unfair
labor practices as set forth and defined in the National Labor
Relations Act, 29 U.S.C. Section 151 et seq., herein cailed the
Act. Based thereon the General Counsel, by the undersigned,
pursuant to Section 10(b) of the Act and section 102.15 of the
Rules and Regulations of the National Labor Relations Board,
Series 8, as amended, issues this Complaint and Notice of
Hearing and alleges as follows:
1. The charge in this proceeding was filed by Longinus
Yen on April 18,1995, and a copy thereof was served by
certified mail on Respondent on or about April 27, 1995.
2. (a) At all material times, Respondent, a corporation
with an office and place of business in New York, New York,
has been engaged in the operation and management of a
newspaper.
(b) During the calendar year ending December 31,
1994. Respondent in conducting its business operations
described above in paragraph 2(a) derived gross revenues in
excess of $200,000, subscribed to various interstate news
service, including the Associated Press, published various
38a
nationally syndicated features, and advertised various
nationally sold products.
3. Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the meaning
of Sections 2(2),(6) and (7) of the Act.
4. At all material times, the following individuals held
the positions set forth opposite their respective names and
have been supervisors of Respondent within the meaning of
Section 2(11) of the Act and agents of Respondent, acting on
its behalf.
Fei Man Hung President
Dei Kuai Young General Manager
Wei Hung Chen Manager
5.(a) In or around April 1995, Respondent's employee
Yen engaged in concert activities with other employees for the
purposes of mutual aid and protection, by meeting with other
employees to discuss terms and conditions of employment,
including Respondent's policies regarding advertising quotas.
(b) In or around April 17 1995, respondent’s emplovee
Yen commenced an organizational campaign among
Respondent's employees for the purpose of forming a labor
organization.
(c) On or around Apri] 17,1995, during a meeting at
the facility convened by Respondent, Yen voiced concerted
complaints to respondent about terms and conditions of
emplovment, including but not limited to the Respondent’s
policies regarding advertising quotas.
6. (a) On or about April 17, 1995, Respondent terminated
Yen.
39a
(b) At All times since April 17, 1995, Respondent has
failed and refused and continues to fail and refuse to reinstate
or offer to reinstate Yen to his former position of employment
or to a substantially equivalent position of employment.
7. Respondent engaged in the conduct described above
in subparagraph 6 because Yen engaged in the Umion activities
and the protected concerted activities as described above in
paragraph 5 and to discourage employees from engaging in
these activities.
8. By the conduct described above in paragraphs 6 and
7, Respondent has been interfering with, restraining 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.
9. By the conduct described above in paragraph 6 and 7 ,
Respondent has been discriminating in regard to the hire or
tenure or terms or conditions of employment of its employees,
thereby discouraging membership in a labor organization in
violation of Section 8(a)(1) and (3) of the Act.
10. The unfair labor practices of Respondent described
above affect commerce within the meaning of Section 2
(6)and (7) of the Act.
PLEASE TAKE NOTICE that commencing at
9:30 A.M. on the 29" day of January, 1996, and on
consecutive days thereafter, a hearing will be conducted in
the Mary Walker Hearing Room, at 26 Federal Plaza, Room
3614, New York, New York, before a duly designated
Administrative Law Judge of the Board, on the allegations
set forth in the above Complaint, at which time and place you
will have the right to appear in person, or otherwise, and give
testimony.
You are further notified that, pursuant to 102.20 and
102.21 of the Board's Rules and Regulations, Series 8, as
amended, Respondent shall file with the undersigned, acting in
this matter as an agent of the National Labor Relations Board,
an original and four (4) copies of an answer to said Complaint
within fourteen (14) days the service thereof, and that, unless
Respondent does so, all of the allegations in the Complaint
shall be deemed to be admitted to be true and shall be so
found by the Board. You are also notified that pursuant to said
Rules and Regulations, Respondent shall serve a copy of its
answer on each of the parties.
Form NLRB-4338, Notice, and Form NLRB-4668,
Statement of Standard Procedure in Formal Hearing Held
Before the National Labor Regions Board in Unfair Labor
Practice Cases, are attached.
Dated at New York, New York,
August 9, 1995 /s/Elbert F. Tellem
Acting Regional Director
National Labor Relations Board
Region 2
26 Federal Plaza, Room 3614
New York, NewYork!0278-0104
4la
New York Unemployment Insurance Appeal Board.
Administrative Law Judge section
ONE MAIN STREET, 2% FLOOR
BROOKLYN, NY 11201
BROOKLYN (718 - 797-7156 )
DONALD STICKLOR CAROL EULER
CHIEF A.L. J. SENIOR A . L. J.
IN THE MTTER OF : CASE#: 095-21385
LONGINUS YEN SSA/ER # : 082-62-2153
IV ISS SM
JACKSON HEIGHTS Request Date: JUNE 19, 1995
NY 11372-0000 NYS Dept. of Labor
Local Insurance Office: 54]
OTHER PARTIES:
PACIFIC CULTURE ENTERPRISE Parties Present:
D/B/A CHINA PRESS CLAIMANT
15 MERCER ST. EMPLOYER
NY, NY 10013-0000
THE LAW FIRM OF HUGH MO, P.C.
750 LEXINGTON AVE 15 FL
NEW YORK, NY 10022-0000
PURPOSE OF HEARING :
To determine EMPLOYER’S
Loss of employment through misconduct.
Employer’s objection to claimant’s entitlement.
Findings of Fact: A hearing was held at which the claimant
and employer appeared and testified.
By initial determination the claimant was found eligible to
receive benefits effective April 17, 1995. The employer
objected that the claimant should be disqualified due to loss of
employment through misconduct.
42a
The claimant worked as a business reporter for a newspaper
from September 1990 until a last dav of work on April 17,
1995. The claimant earned commissions based on the amount
of advertising that he obtained for the paper. In all the years of
the claimant's employment the claimant had not met with his
assigned quotas for advertising although the claimant exerted
his best efforts. On occasion the claimant had been told that he
must work harder to meet his assigned goals. The employer
announced new regulations regarding advertising quotas. The
claimant opposing them. The claimant was fired, for failing to
meet production quotas in advertising.
OPINION: The credible evidence establishes that the
claimant was fired. The direct testimony of the employer fails
to show that the claimant did not exert his best efforts in order
to attempt to meet production goals. The claimant’s direct
testimony establishes that he did exert his best efforts to meet
production goals. Since the employer’s testimony establishes
that the claimant was fired for failing to sell as much
advertising as the employer believed he could, and since the
testimony establishes that the claimant exerted his best efforts
to sell as much advertising as he could, it is concluded that the
claimant's employment ended due to poor performance of his
job responsibilities while an employer may discharge an
employee for any lawful reason poor performance of one’s job
responsibility is not considered to be misconduct such as
disqualifies an individual from receiving unemployment
insurance benefits.
DECISION: The employer’s objection is overruled. The
initial determination of eligibility is sustained.
JULY 11,95 ‘/s/ JOSEPH WOLFERMANN
DATE Administrative Law Judge
43a
EXCERPTS (1) FROM
SUMMARY OF STANDARD PROCEDURES
IN FORMAL HEARINGS HELD
BEFORE THE NATIONAL LABOR RELATIONS BOARD
IN
~ UNFAIR LABOR PRACTICE PROCEEDINGS PURSUANT
TO
SECTION 10
OF THE NATIONAL LABOR RELATIONS ACT
The hearing will be conducted by an administrative law
judge of the National Labor Relations Board who will preside
at the hearing as an independent, impartial finder of the facts
and applicable law whose decision in due time will be served
on the parties. The offices of the administrative law judges are
located in Washington. D.C. ; San Francisco, California; New
York, New York; and Atlanta, Georgia.
At the date, hour, and place for which the hearing is set,
the administrative law judge, upon the joint request of the
parties, will conduct a “prehearing” conference, prior to or
shortly after the opening of the hearing, to ensure that the
issues are sharp and clear cut; or the administrative law judge
may independently conduct such a_ conference. The
administrative law judge will preside at such conference, but
may, if the occasion anses, permit the parties to engage in
private discussions. The conference will not necessarily be
recorded, but it will be that the labors of the conference will be
evinced in the ultimate record, for example, in the form of
statement of position. Stipulations, and concessions. Except
under unusual circumstances, the administrative law judge
conducting the prehearing conference will be the one who will
conduct the hearing; and it is expected that the formal hearing
will commerce or be resumed immediately upon completion
of the prehearing conference. No prejudice will result to any
44a
party unwilling to participate in or make stipulations or
concessions during any prehearing conference.
(This is not to be construed as preventing the parties
from meeting earlier for similar purposes. To the contrary, the
parties are encouraged to prior to the time set for hearing in an
effort to narrow the issues. )
Parties may be represented by an attorney or other
representative and present evidence relevant to the issues All
parties appearing before this hearing who have or whose
witness have handicaps falling within the provisions of
Sections 504 of the Rehabilitation Act of 1973, as amended,
and 29 C.F.R. 100,603. And who in order to participate in this
hearing need appropriate auxiliary aids, as defined in 29
C.F.R. 100.603, should notify the Regional Director as soon as
possible and request the necessary assistance.
An official reporter will make the only official transcript
of the proceedings, and all citations in briefs and argument
must refer to the official record. The Board will not certify any
transcript other than the official transcript for use in any court
litigation. Proposed corrections of the transcript should be
submitted, either by way of stipulation or motion, to the
administrative law judge for approval.
All matter that is spoken in the hearing room while the
hearing is in session will be recorded by the official reporter
unless the administrative law judge specifically directs off-the-
record discussion. In the event that any party wishes to make
off-the-record statements, a request to go off the record should
be directed to the administrative law judge and not to the
official reporter.
Statement of reasons in support of motions and
objections should be specific and concise. The administrative
45a
law judge will allow an automatic exception to all adverse
rulings and, upon appropriate order, an objection and
exception will be permitted to stand to an entire line of
questioning.
All exhibits offered in evidence shall be in duplicate.
Copies of exhibits should be supplied to the administrative law
judge and other parties at the time the exhibits are offered in
evidence. If a copy of any exhibit is not available at the time
the original 1s received, it will be the responsibility of the
party offering such exhibit to submit the copy to the
administrative law judge before the close of hearing. In the
event such copy is not submitted, and the filing has not been
waived by the administrative law judge, any ruling receiving
the exhibit may be rescinded and the exhibit rejected.
Any party shall be entitled, on request, to a reasonable
period at the closed of the hearing for oral argument which
shall be included in the transcript of the hearing. In the
absence of a request, the administrative law judge may ask for
oral argument it, at the close of the hearing, it 1s believed that
such argument would be beneficial to the understanding of the
contentions of the parties and the factual issues involved.
Any party shall be entitled, on request made before the
close of the hearing, to file a bnef or proposed findings and
conclusions, or both, with the administrative law judge who
will fix the time for such filing. Any such filing submitted
shall be double-spaced on 8 '4 by 11 inch paper.
Attention of the parties is called to the following
requirements laid down in Section 102.42 of the Board’s
Rules and Regulations, with respect to the procedure to be
followed before the proceeding is transferred to the Board.
46a
No request for an extension of time within which to
submit brief or proposed findings to the administrative law
judge will be considered unless received by the Chief
Administrative Law Judge in Washington. D.C.(or, in cases
under the San Francisco, California branch office, the Deputy
Chief Administrative Law Judge: or, in cases under the branch
offices in New York, New York, and Atlanta, Georgia, the
Associate Administrative Law judge) at least 3 days prior to
the expiration of the time fixed for the submission of such
documents. Notice of request for such extension of time must
be served simultaneously on all other parties, and proof of
such service furnished to the Chief Administrative Law Judge.
Deputy Chief Administrative Law Judge, or the Associate
Chief Administrative Law Judge, 25 the case may be. A
quicker response is assured if the moving party secures the
other parties and includes such in the request. All briefs or
proposed findings filed with the administrative law judge must
be submitted in triplicate, and may be printed or otherwise
legibly duplicated with serviced on the other parties.
In due course the administrative law judge will prepare
and file with the Board a decision in this proceeding, and will
cause a copy thereof to serviced on each of the parties. Upon
filing of this decision, the Board will enter an order
transferring this case to itself, and will serve copies of the
order, setting forth the date of such transfer, on all parties. At
that point, the administrative law judge’s official connection
with the case will cease.
The procedure to be followed before the Board from that
the point forward, with respect to the filing of exceptions to
the administrative law judge’s decision, the submission of
supporting brief, requests for a oral argument before the
Board. and related matters, is set forth in the Board’s Rules
and Regulations, particularly in Section 102.46 and following
sections. A summary of the more pertinent of these provisions
47a
will be served on the parties together with the order
transferring the case to the Board.
Adjustments or settlement consistent with the policies of
the Act reduce Government expenditures and promote amity
in labor relations. If adjustment appears possible, the
administrative law judge may suggest discussions between the
parties or, on request, will afford reasonable opportunity
during the hearing for such discussions.
NATIONAL LABOR RELATIONS ACT.
Section 1, 8(d) Collective Bargaining.
Collective bargaining is defined in Act. Section 8 (d)
requires an employer and representative of its employees to
meet at reasonable times. to confer in good faith about certain
matters, and to put into a writing any agreement reached if
requested by either party. The parties must confer in good
faith with respect to wages hours, and other terms or
conditions of employment, the negotiation of an agreement, or
any question arising under an agreement.
These obligations are imposed equally on the employer
and the representative of its employers. It is an unfair Labor
Practice for either party to refuse to bargain collectively with
the other. The obligation does not, however, compel either
party to agree to a proposal by the order, not does it require
either party to make a concession to the other.
‘If the strike was caused by the unfair labor practice of the
employer, however, the striker are classified as unfair practice
strikers and their status is not affected by failure to follow the
required procedure.
48a
CODE OF FEDERAL REGULATION, TITLE 29,
Subtitle B — Regulations Relating to Labor:
Chapter I - National Labor Relations Board.
Section 102.25: Ruling on Motions.(in relevant part)
An administrative law judge designated by the chief
administrative law judge. by the associate chief judge in San
Francisco, California, by the associate chief judge in New
York, New York, or by the associated chief judge in Atlanta,
Georgia, as the case may be, shall rule on all prehearing
motions, and all such rulings and orders shall issued in writing
and a copy served on each of the parties.
Section 102.18: Withdrawal.
Any such complaint may be withdrawn before the
hearing by the regional director on his own motion.
Section 101.9: Settlement after issuance of complaint.(in
relevant part)
(b)2) In some cases, however, the Regional Director,
who has authority to withdraw the complaint before the
hearing ( 102.18). may conclude that an informal settlement
agreement of the type described in 101.7 is appropnate. Such
agreement 1s not subject to approval by the board and does not
provide for the Board order. It provides for the withdrawal of
the complaint.
Section 101.7: Settlement.(in relevant)
Before any complaint is issued or other formal action
taken, the Regional Director affords an opportunity to all
parties for the submission and consideration of facts,
argument, offers of settlement, or proposals of adjustment,
49a
except where time, the nature of the proceeding. and the
public interest do not permit.
Section 101.9: Settlement after issuance of complaint.(in
relevant part}
(cl) If after issuance of a complaint but before
opening of the hearing, the charging party will not join in a
settlement tentatively agreement upon by the Regional
Director, the respondent, and any other parties whose consent
may be required, the Regional Director serves a copy of the
proposed settlement agreement on the charging party with a
brief written statement of the reasons for proposing its
approval. Within 7 days after service of these documents, the
charging party may file with the Regional Director a written
statement. Such objections will be considered by the Regional
Director in determining whether to approve the proposed
settlement. If the settlement is approved by the Regional
Director notwithstanding the objections, the charging party is
so informed and provided a brief written statement of the
reasons for the approval.
(d)(1) If the settlement occurs after the opening of the
hearing and before issuance of a administrative law judge’s
decision and there is an all party informal settlement, the
request for withdrawal of the complaint must be submitted to
the administrative law judge for approval.
50a
New York State Labor Law.
Article 6, Payment of Wages.
Section 191-c. Payment of a sales commission.
(1) When a contract between a principal and a sales
representative after terminated. all earned commissions shall
be paid within five business days after termination or within ~
five business days after they become due in the case of earned
commission not due when the contract is terminated.
(3) A principal who fails to comply with the provisions
of this section concerning timely payment of all earned
commissions shall be liable to the sales representative in a
civil action for double damages. The prevailing party in any
such action shall be entitled to an award of reasonable
attomey s fees, court costs, and disbursements.
Section 193. Deductions from wages.
(1) No employer shall make any deduction from the
wage
of an employee. Except deductions which:
a. are made in accordance with the provisions of any
law or any rule or regulation issued by any government
agency; Or
b. are expressly authorized in writing by the employee
and are for the benefit of the employee; provided that such
authorization is kept on file on the employer's premises. Such
authorized deductions shall be limited to payments for
insurance premiums, pension or health and welfare benefits,
contributions to charitable organizations, payments for United
States bond, payments for dues or assessments to a labor
organization, and similar payments for the benefit of the
emplovee.
Sla
(2) No employer shall make any charge against wages,
Or require an employee to make any payment by separate
transaction unless such charge or payment is permitted as
deduction from wages under the provisions of subdivision one
of this action.
Section 197. Civil penalty.
Any employer who fails to pay the wages of his
emplovee or shall differentiate in rate of pay because of sex,
as provided in this article, shall forfeit to the people of the
state the Sum of fifty dollars for each such failure, to be
recovered by the commissioner tn civil action.
Section 198-a. Criminal penalties .
Section 198-b. “Kick-back” of Wages prohibited.
52a
EXCERPTS (2 ) FROM
Jaw —Sy Chen, Ph. D.
NYS Licensed psychologist
56-39 195" Street
Fresh Meadows, NY 11365
Telephone (718) 357-9050
Dr. George C.K. Liu Re: Mr. Longinus Yen
59-15 94" Street # D-6 Date of 1" Visit: 10/13/1995
Rego Park, NY 11373 Date of initial report: 1/20/1996
Date of Progress report: 4/19/1996
Dear Dr. Liu:
INITIAL PSYCHOLOGICAL EVALUATION
&
PROGRESS REPORT
Test Administered:
(1) Diagnosis Based on Diagnostic & Statistical Manual
of Mental Disorder (DSM - IV)
(2) Beck Depression Scales
(3) Clinical Interview
This psychological Evaluation report is requested by Mr.
Longinus Yen, who resides at 35-30 73 Street #3C, Jackson
Heights, NY 11372. The Major complaints included persistent
fear of life threatening, worry about finances, insomnia,
nightmares, pronounced memory problems, excessive anxiety
and depression because the patient was unlawfully discharged
from duty by The China Press on April 17, 1995.
The evaluation and treatments that followed were held at
my office, 56-39 195 Street, Fresh Meadows, New York
53a
11365. In his first visit (10/13/95), Mr. Yen stated that he was
employed as a reporter by The China Press since September 3,
1990. He was fired on April 18,1995. Mr. Yen said “| find my
daily life has been shattered. | am financially broken. | am
afraid | will be hunted. | have psychological handicaps to find
a new job.” He often felt extremely tense. At times, he
complained difficulty falling asleep, he would be unable to get
back to sleep. He woke up one or two times a night between |
to 3 o clock. He experienced accelerated heart rate, shortness
of breath, and numbness of body.
When asked about the specific events of the discharge
and its aftermath, he was very disturbed and angry. He said he
was fired because he tned to organize a worker union to
promote workers’ right in The China Press. Immediately after
his dismissal, he was frequently threatened by phones or
visited by some one who came to his house to warn him. He
was told “ You will be rehired if you apologize and admit
making mistakes. You are a traitor, one fighting against
Chinese people. You will be brutally killed in no time.” Then,
it happened that his employer even took measure to stop
paying him unemployment benefit. Mr. Yen stated that he was
a good reporter helping The China Press bring in a lot of
business advertisements but instead he was accused of
frightened. He felt totally humiliated. Thus he developed a
marked withdrawal from people and persistent avoidance from
activities and situations that provoked recollections. He was so
easily irntated and lost his temper.
1. A closer examination of specific symptoms based on
DSM-IV suggested a moderate post-traumatic stress
disorder due to abrupt discharge from his work and
subsequent intimidation. As has been noted, Mr. Yen’s
included being fearful, having insomnia and nightmares,
experiencing tiredness, shortness of breath, and numbness of
body, feeling of anger and humiliation. He has difficulty
54a
‘
:
>
>
REMIT ere nn renee:
concentrating and remembering things just heard or learned.
He constantly worried about his future finances. He felt
helpless and become detached from other -people.
Furthermore, he had to push himself very hard to cope with
daily activities. His relationships with his family were
deteriorating.
2. Based on the findings of Beck Depression Scale (BDI
= 13), Mr. Yen has revealed mild sign of mood disturbance.
He felt tired, worthless, punished, discouraged about the
future, slightly more irritated, less interested in other people.
Other symptoms included insommia, indecision, forgetting and
inability to thinh straight. He was helpless but he believed he
still had hopes. There was no evidence of hallucinations or
delusions. Nor did he have any idea of killing himself.
Mental Status: Mr. Yen had no previous history of
mental disorder nor drug / alcohol abuse. He was a competent
reporter, In appears to me he is proud of his work. He is
cooperative. Response time is good. But his mood is depressed
and anxious. He complain having sleep problems and
nightmares. Sometime he loses his concentration. He tries
hard to hold himself together. Anyway, his insight is good.
Judgement is clear. There is no evidence of psychotic
symptoms or violent behaviors.
Diagnosis: Moderate post-traumatic stress disorder with
mild emotional disturbance
Recommended Treatment: Cognitive — behavioral therapy
1. Relaxation / meditation.
2. Desensitization training.
3. Overcoming automatic negative cognition and
delineating specific stylistic errors in thinking.
4. Assertion and social skills learning.
55a
5. Formulating a life plan.
Conclusion
1. Mr. Longinus Yen has a moderate post-trauma
stress disorder with mild mood disturbance
which is causally related to the above
mentioned losses of job and reputation.
Since the patient is partially disabled, it would
be difficult for him to work safely and function
socially at the present time.
3. The patient has suffered from significant
emotional trauma and needs to continue the
psychotherapy at | or 2 times monthly.
nN
3. Progress and Up-date Report
Mr. Yen initially exhibited persistent fear of being
slain, worry about finances, being tense, insomnia,
nightmares, lack of concentration, excessive anxiety and
depressed mood. As already noted, he was started with
cognitive-behavioral therapy consisting of relaxation,
desensitization, and social skill learning. It was observed that
the patient quickly made a significant improvement in the area
of fear reduction and emotional stability. However, there was
postponed. He felt very tense afterward. This new pressure
seemed to provoke his deep fear and disruption of daily
activity functioning. On the whole, the effectiveness and
maintenance of therapy gains are good.
Very truly yours,
/si Jaw-sy_ Chen, Ph. D.
NYS Licensed Psychologist
56a
EXCERPTS (3 ) FROM
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
PACIFIC CULTURE ENTERPRISES,
D/B/A/ CHINA PRESS
And Case No. 2-CA-28359
LONGINUS YEN, An individual
ORDER RESCHEDULING HEARING
IT IS HEREBY ORDERED That the hearing in the above-
entitled matter be and the same hereby is rescheduled from January
29, 1996 to May 14, 1996, at 9:30 A.M., and any adjourned
date until completed, at 26 Federal Plaza, Room 3614, New
York, New York.
January 12, 1996 /s/ Daniel Silverman
Date Regional Director, Region
National Labor relations
Board
EXCERPTS ( 4) FROM
United States Government
NATIONAL LABOR RELATIONA BOARD
Region 2
26 Federal Plaza — Room 3614
New York, NY 10278-0104
April 18,1996
Jimmy Yen -
35-30 73™ Street, Apt. 3C
Jackson Heights, New York 11372
Re: China Press
Case No. 2-CA-28359
Dear Mr. Yen:
1 am the attorney handling your case against
China Press, which is scheduled for trail on Tuesday, May
14. It is VERY IMPORTANT that you contact me
immediately to prepare for your trail. My telephone
number is (212) 264-0518. If 1 am not in leave a message on
my voice mail with your telephone number and the best
time to call you. I cannot proceed to trail without your
cooperation.
ee Sincerely,
/s/ Geoffrey E. Dunham
Counsel for the General Counsel
58a
EXCERPTS (5) FROM
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
PACIFIC CULTURE ENTERPRISES,
D/B/A/ CHINA PRESS
And Case No. 2-CA-28359
LONGINUS YEN, An individual
ORDER RESCHEDULING HEARING
IT IS HEREBY ORDERED That the hearing: in the above-
entitled matter be and the same hereby is rescheduled from May 14,
1996 to July 2, 1996, at 9:30 A.M., and any adjourned date
until completed, at 26 Federal Plaza, Room 3614, New York,
New York.
May 7. 1996 /s/ Elbert. F. Tellem
Date Acting Regional Director, Region 2
National Labor relations Board
59a
EXCERPTS (6 ) FROM
LONGINUS YEN ANNOUNCEMENT
(Mixed in Chinese and English language)
To : The China Press. (212) 274-0688, 7, 6
HUGH H. MO (212) 750-9750
NLRB Mr. Geoffery E. Dunham
(212) 264-8427
y 3 Date : 7/1/1996 (One day before the Hearing.)
3. Announcements;
If there is no settlement, the case will be taken to
Court.
If there is a settlement, but I did not in volunteer to
it and the hearing is waived, I will appeal to D.C.
4,
Petition to President of U.S.
Petition to Congress for a redress of grievances.
Oppose any in the “Black Box Procedural”
First Amendment’s rights to free speech.
Nine people let there be American free speech.(An
article from Chinese Newspaper that date is June 30,
1996.)
60a
EXCERPTS (7) FROM
A receptionist there
To sign a paper confirming
] came to the court
JULY 2, 1996, 9:30 A.M. LONGINUS YEN
at 26 Fed. Plaza 36 FL. Waiting the Court( trail)
The Place is National Labor Relations Board.
/s/ ELEANOR
Receptionist
EXCERPTS (8) FROM
l nited States Government
NATIONAL LABOR RELATIONA BOARD
Region 2
26 Federal Plaza - 3614
New York, NY 10278-0104
November 6, 1996
Dear Mr. Pin-Wen:
Satisfactory evidence having been submitted of
comphance with the Settlkement Agreement in the above-
captioned case, insofar as it requires certain affirmative action
to be taken, and no evidence having been presented of the
failure to comply with the requirement for refraining from
engaging in certain conduct, the instant case 1s hereby closed
and will remain closed, conditioned upon continued
compliance.
You are cautioned that subsequent violations of the
National Labor Relations Act may become the basis for
further proceedings in the instant case despite its formal!
closing.
Date . November 6, 1996.
Very truly yours,
/s/ Daniel Silverman
Regional Director
62a
EXCERPTS (9 ) FROM
United States Government
NATIONAL LABOR RELATIONA BOARD
Region 2
26 Federal Plaza - 3614
New York, NY 10278-0104
Dear Mr. Yen:
Enclosed please find the checks due you pursuant to a
unilateral settlement agreement approved by the Regional
Director.
Date : October 15, 1997 very truly yours,
/s/ Esther _Morles
Board Agent
(212) 264-5738
EXCERPTS (10) FROM
United States Government
NATIONAL LABOR RELATIONA BOARD
OFFICE OF THE GENERAL COUNSEL
WASHINGTON, D.C. 20570
Dear Mr. Yen :
This is further response to your letter October 16,
1997, regarding the above-Captioned case.
It appears that On July 20, 1996, the Region 2
approved a Unilateral settlement agreement.
You appealed the unilateral settlement approved by
the Regional Director, and your appeal was denied.
The Employer submitted to the Region two checks
made payable to you pursuant to the term of the unilateral
settlement agreement. Due to circumstances beyond the
Region’s control, the checks were mailed to you in early
October 1997.
You returned the checks to the Region, and on Oct
15, the region again mailed the checks to you. You again
refused to accept the checks.
On November 5, 1997, the region mailed you a letter
advising you that the checks were returned to the Employer. If
you wish to accept the checks now, please contact the Region.
1 trust that the foregoing is responsive to your
inquiry. If 1 can be of any further assistance to you in this or
any other matter, please do not hesitate to contact me.
Date : November 13,1997
Sincerely,
/s/ Celeste J. Mattina
Assistant General Counsel
64a
BEREAN POL
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.