Majestic Restaurant & Buffet

National Labor Relations Board - Administrative Judge Opinions

Feb 21, 2007

22-CA-027468 (N.L.R.B. Feb. 21, 2007)

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Wayne, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
THE IMPERIAL BUFFET & RESTAURANT, INC.
D/B/A MAJESTIC RESTAURANT & BUFFET
and Case No. 22-CA-27468
MING XING CHEN, An Individual
Bernard Mintz, Esq., Counsel for the General Counsel.
Tosh Anderson, Esq., Counsel for the Charging Party.
DECISION
Statement of the Case
JOEL P. BIBLOWITZ, Administrative Law Judge: This case was heard by me on
January 30, 2007 in Newark, New Jersey. The Complaint herein, which issued on October 31,
20061, and was based upon an unfair labor practice charge and an amended charge that were
filed by Ming Xing Chen, herein called Xing, on June 29 and August 14, alleges that The
Imperial Buffet & Restaurant, Inc., d/b/a Majestic Restaurant & Buffet, herein called the
Respondent, violated Section 8(a)(1) of the Act by refusing to reinstate Xing, Fong C. Tsai,
herein called Tony, and Hua Ying Tan, herein called Kiki, who had concertedly complained to
the Respondent regarding the employees’ wages and working conditions, and conditioned their
reinstatement on the withdrawal of the unfair labor practice charges filed herein despite the fact
that they had made unconditional offers to return to work. The Complaint further alleges that the
Respondent threatened its employees with unspecified reprisals if they refused to sign a
statement in support of the Respondent’s position in this matter. Despite being given additional
time in which to file an Answer, the Respondent failed to file an Answer to the Complaint, and
did not appear at the hearing herein. Counsel for the General Counsel, at the hearing, moved
for a default judgment, which motion I granted. Based upon the pleadings herein, I make the
following findings of fact and conclusions of law:
1(a). The charge in this case was filed by Xing on June 29 and served upon Respondent
on July 3.
1(b). The first amended charge in this case was filed by Xing on August 14 and was
served upon Respondent on August 14.
2. At all material times Respondent, a corporation with an office and place of business in
Wayne New Jersey, herein called Respondent’s Wayne facility, has been engaged in the
restaurant business.
3(a). During the preceding twelve months Respondent, in conducting its business
operations described above in paragraph 2, derived gross revenue in excess of $500,000.

1 Unless indicated otherwise, all dates referred to herein relate to the year 2006.
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3(b). During the period of time described above in paragraph 3(a), Respondent
purchased products, goods and materials valued in excess of $5,000 which were shipped to its
Wayne facility directly from points outside the State of New Jersey.
4. At all material times Respondent has been engaged in commerce within the meaning
of Section 2(2), (6) and (7) of the Act.
5. At all material times the following named 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 within the meaning of Section 2(13) of the
Act:
David Ho a/k/a David Yeung Owner/Supervisor
Jane Ho a/k/a Jane Yeung Owner/Supervisor
Paul Huang Manager
` 6(a). On about December 30, 2005 Respondent’s employees, including Xing, Tony, and
Kiki, concertedly complained to the Respondent regarding the wages, hours and working
conditions of Respondent’s employees.
6(b). On or about December 30, 2005 Respondent’s employees, including Xing, Tony
and Kiki, in protest of the wages, hours and working conditions of Respondent’s employees,
walked off the job.
7. On or about mid-January Xing, Tony and Kiki made unconditional offers to return to
work.
8(a). Since on or about mid-January, Respondent has refused to reinstate Xing, Tony
and Kiki to their former positions of employment.
8(b). Respondent has engaged in the conduct described above in paragraph 8(a)
because Xing, Tony and Kiki engaged in the conduct described above in paragraph 6(a) and
6(b) and to discourage employees from engaging in those or other concerted activities.
9. Since on or about July 21, Respondent has conditioned the reinstatement of Xing,
Tony and Kiki on the withdrawal of the unfair labor practice charge filed in this case.
10. On or about July 22, Respondent, by Jane Ho, a/k/a Jane Yeung, threatened its
employees with unspecified reprisals if they would not sign a statement in support of
Respondent’s position in this case.
11. By the conduct described above in paragraphs 8 through 10, Respondent has been
interfering with, restraining and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act in violation of Section 8(a)(1) of the Act.
12. The unfair labor practices of Respondent described above affect commerce within
the meaning of Section 2(6) and (7) of the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I
recommend that it be ordered to cease and desist from engaging in these activities and that it
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be ordered to take certain affirmative action designed to effectuate the policies of the Act. As the
Respondent refused to reinstate Ming Xing Chen, herein called Xing, Fong C. Tsai, herein
called Tony, and Hua Ying Tan, herein called Kiki, on about January 15, 2006, although they
had each made unconditional offers to return to work after engaging in an economic strike, I
recommend that the Respondent be ordered to reinstate them to their former positions of
employment and reimburse them for any loss of income they suffered as a result of the
Respondent’s unlawful refusal to reinstate them, plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2
ORDER
The Respondent, The Imperial Buffet & Restaurant, Inc., d/b/a Majestic Restaurant &
Buffet, its officers, agents and representatives, shall:
1. Cease and desist from
(a) Threatening its employees with unspecified reprisals if they refuse to sign a
statement in support of the Respondent’s position in the instant unfair labor practice case.
(b) Failing and refusing to reinstate Xing, Tony and Kiki to their former positions of
employment, even though they had each made an unconditional offer to return to work.
(c) Conditioning the reinstatement of Xing, Tony and Kiki on the withdrawal of the unfair
labor practice charge filed in this case.
(d) In any like or related manner, interfering with, restraining or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the Act:
(a) Make whole Xing, Tony and Kiki for any loss of earnings or other benefits that they
suffered as a result of the refusal to reinstate them to their former positions of employment on
about January 15, 2006.
(b) Reinstate Xing, Tony and Kiki to their former positions of employment without the
loss of seniority or other rights and benefits, and without conditioning the reinstatement on their
withdrawing the instant unfair labor practice charges herein.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
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in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(d) Within 14 days after service by the Region, post at its facility in Wayne, New Jersey,
copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by
the Regional Director for Region 22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
January 15, 2006.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., February 21, 2007.

______________________________
Joel P. Biblowitz
Administrative Law Judge

3 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to
post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to reinstate employees to their former positions of employment after those
employees made unconditional offers to return to work.
WE WILL NOT condition the reinstatement of employees on their withdrawing the unfair labor practice
charges filed in this case and WE WILL NOT threaten our employees with unspecified reprisals if they
refuse to sign a statement supporting our position in that case.
WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the
exercise of their rights guaranteed them by Section 7 of the Act.
WE WILL reinstate Ming Xing Chen, Fong C. Tsai, and Hua Ying Tan to their former positions of
employment without the loss of seniority or other rights and privileges that they enjoyed, and WE WILL
make them whole for any loss of earnings or other benefits that they suffered as a result of our refusal to
reinstate them on about January 15, 2006.
IMPERIAL BUFFET & RESTAURANT, INC., d/b/a MAJESTIC RESTAURANT & BUFFET
(Employer)
Dated_________________ By________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
Two MetroTech Center (North), Jay Street and Myrtle Avenue, 5th Floor
Brooklyn, New York 11201-4201
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.