The Imperial Buffet & Restaurant, Inc. d/b/a Majestic Restaurant & Buffet

National Labor Relations Board - Unpublished Board Decisions

Apr 8, 2009

22-CA-027468 (N.L.R.B. Apr. 8, 2009)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
THE IMPERIAL BUFFET & RESTAURANT,
INC. d/b/a MAJESTIC RESTAURANT &
BUFFET
and Case 22-CA-27468
MAJESTIC BUFFET, INC.
and
NEW MAJESTIC, INC.
and
MING XING CHEN
ORDER
New Majestic, Inc.'s petition to revoke subpoenas
duces tecum B-629187, B-629188, and B-629189 and subpoenas
ad testificandum A-710471, A-710472, and A-710473; Majestic
Buffet, Inc.'s petition to revoke subpoena duces tecum B-
629200 and subpoena ad testificandum A-710481; and the
2Respondents' requests for oral argument are denied . The
1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to-Members
Liebman, Schaumber, and Kirsanow, as a three-member group,
all of the Board's powers in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31,
2007. Pursuant to this delegation, Chairman Liebman and
Member Schaumber constitute a quorum of the three-member
group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and
representation cases. See Sec. 3(b) of the Act.
2 The General Counsel has reissued several subpoenas to
replace the original subpoenas that were printed on
subpoenas seek information relevant to the matter under
investigation, as required by Section 11(l) of the Act and
Section 102.31(b) of the Board's Rules and Regulations, and
the Petitioners have failed to establish any other legal
basis for revoking the subpoenas. See generally NLRB v.
North Bav Plumbing, 102 F.3d 100.5 ( 9th Cir. 1996); NLRB v.
Carolina Food Processors, Inc., 81 F.3d 507 (4 th Cir. 1996).
However, we condition our denial of the Respondents'
petitions with respect to subpoenas ad testificandum A-
710471, A-710472, A-710473, and A-710481 upon the Region
supplying subpoenaed witnesses Ki Sang Wong and Tang Ho
with a general description of the matters concerning which
they will be expected to testify.
outdated forms. The reissued subpoenas are substantially
identical to the subpoenas that they replace, except that
they contain new subpoena numbers and the signature of the
Board's Executive Secretary. We consider the outstanding
petitions to revoke the original subpoenas as applying to
the reissued subpoenas. The reissued subpoena numbers are
as follows: (1) A-857722 replaces A-710481; (2) B-628848
replaces B-629200; (3) A-857723 replaces A-710471; (4) B-
628849 replaces B-629187; (5) A-857724 replaces A-710472;
and (6) B-628850 replaces B-629188. Although no reissued
subpoena corresponds to subpoena A-710473, this subpoena is
substantially identical to subpoenas A-710471 and A-710472,
except that it is addressed to Ki Sang Wong in care of his
attorney. The General Counsel also issued two new
subpoenas, A-857721 and B-628847, which do not correspond
to specific original subpoenas but are substantially
identical to subpoenas addressed to Tang Ho, except for the
address listed in the subpoenas. To the extent that the
petition to revoke is construed as applying to these
subpoenas, it is denied.
2
Section 102.31(b) of the Board's Rules and Regulations
states, in pertinent part, that the Board shall revoke a
subpoena if in its opinion the subpoena "does not describe
with sufficient particularity the evidence whose production
is required." The testimonial subpoenas in this case
identify, by name and number, the unfair labor practice
case about which testimony is sought. Accordingly, under
current Board law, they are sufficiently particularized.
See Offshore Mariners United, 338 NLRB 745 (2002) (subpoena
ad testificandum was not overly broad or vague where it
identified unfair labor practice cases by name and number);
Postal Workers Local 64 (USPS), 340 NLRB 912 (2003).
However, a difference of opinion has arisen concerning
whether Offshore Mariners and Postal Workers Local 64
(USPS) were correctly decided. Specifically, there is
disagreement concerning (1) whether the particularity
requirement of Section 102.31(b) of the Board's Rules and
Regulations applies to a subpoena ad testificandum, and (2)
if the particularity requirement does apply, whether a
subpoena ad testificandum must describe the testimony
sought, as well as identify the relevant unfair labor
practice case by name and number. Without deciding these
issues, we shall require the Region to provide the
subpoenaed witnesses with a general description of the
3
matters concerning which they will be expected to teStify.3
This would include, but shall not be limited to, the
identity and ownership of assets owned, retained, or
transferred by the Respondents, and the manner of the
transfer or disposition of the assets; and the nature of
the cessation of'Respondent New Majestic's restaurant, the
identity of any transferees, and any potential reopening of
the business.' This Order shall be nonprecedential.
Dated, Washington, D.C., April 8, 2009.
WILMA B. LIEBMAN, CHAIRMAN
PETER C. SCHAUMBER, MEMBER
3 Chairman Liebman would adhere to existing precedent on
this issue. For institutional reasons, however, she joins
her colleague in requiring the Region to provide the
subpoenaed witnesses with a general description of the
matters concerning which they will be expected to testify.
4 Because there is a Board order in the unfair labor
practice case, and the subpoenas arise out of subsequent
compliance investigations, we shall not require that the
underlying unfair labor practice charge be provided.
4