One Stop Kosher Supermarket

National Labor Relations Board - Board Decisions

Sep 29, 2010

355 N.L.R.B. 1237 (N.L.R.B. 2010)

ONE STOP KOSHER SUPERMARKET
355 NLRB No. 201
1237
One Stop Kosher Supermarket, Inc. and Local 338,
Retail, Wholesale and Department Store Union,
United Food and Commercial Workers. Case
29–CA–29865
September 29, 2010
DECISION AND ORDER
BY MEMBERS BECKER, PEARCE, AND HAYES
On May 7, 2010, Administrative Law Judge Jeffrey D.
Wedekind issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed a brief in support of the judge’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, One Stop Kosher Supermar-
ket, Inc., Brooklyn, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We find it unnecessary to address the judge’s conclusions regard-
ing the Union’s failure to comply with the notice requirements of Dana
Corp., 351 NLRB 434 (2007), and its alleged failure to demonstrate
proof of its majority status. We also find it unnecessary to address the
judge’s conclusion that an adverse inference was warranted against the
Respondent based on its failure to comply with the General Counsel’s
subpoena. The Respondent’s exceptions to these conclusions do not
meet the minimum requirements of Sec. 102.46(b) of the Board’s Rules
and Regulations. The Respondent merely cites to the judge’s decision
and fails to allege with any degree of particularity, either in its excep-
tions or its brief in support thereof, the errors it contends the judge
committed, or on what grounds it believes the judge’s decision should
be overturned. In these circumstances, we find in accordance with Sec.
102.46(b)(2) that the Respondent’s exceptions on these points should
be disregarded. See, e.g., Metropolitan Transportation Services, 351
NLRB 657, 657 fn. 5 (2007); Conley Trucking, 349 NLRB 308, 308 fn.
2 (2007), enfd. 520 F.3d 629 (6th Cir. 2008).
James P. Kearns, Esq., for the General Counsel.
Jeffery A. Meyer, Esq. (Kaufman, Dolowich, Voluck & Gonzo
LLP), for the Respondent.
Jae W. Chun, Esq. (Friedman & Wolf), for the Charging Party.
DECISION
STATEMENT OF THE CASE
JEFFREY D. WEDEKIND, Administrative Law Judge. The
General Counsel alleges that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to bargain or provide
requested information after its labor consultant, David Ganz,
executed a voluntary recognition agreement with the Union in
May 2009. Respondent denies the commission of any unfair
labor practices, asserting, among other things, that Ganz lacked
authority to execute the recognition agreement.
The underlying charge was filed by the Union on October
20, 2009. The Union subsequently filed an amended charge on
January 25, 2010, and the General Counsel issued the com-
plaint the following day. Respondent thereafter filed its answer
and amended answer denying the substantive allegations on
February 9 and March 22, 2010, respectively.
Following two prehearing conferences, the case was tried be-
fore me in Brooklyn, New York, on March 23 and 24, 2010.
The General Counsel and the Respondent thereafter submitted
posthearing briefs. After considering the parties’ briefs and the
entire record,1 including my observation of the demeanor of the
witnesses,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a domestic corporation engaged in the opera-
tion of a retail grocery store. Its principal office and place of
business is located at 98 Rutledge Street, Brooklyn, New York.
Respondent admits in its amended answer, and I find, that, in

1 There are numerous errors in the transcript of the hearing testi-
mony, but the following warrant special mention: on p. 14, lines 8–9,
“withdrew its recognition” should read “withdrew its petition”; on page
43, line 11, “call and RN petition” should read “file an RM petition”; on
page 44, line 25, “is required” should read “is not required”; on page
47, line 16, “19(b)’d” should read “10(b)’d”; on page 70, line 10, “is a
well person” should read “is not a well person”; and on page 75, lines 9
and 11, “hedgeman number two” should read “Hitler number two”. On
April 26, 2010, I issued a Notice to Show Cause to all parties why these
corrections should not be made. No opposition has been received.
2 Only three witnesses testified: the Charging Party Union’s counsel,
Jae Chun; the Respondent’s president, Joseph (David) Menczer; and
Ganz. To the extent there are conflicts in the testimony regarding the
relevant facts, I have credited Chun over Menczer and Ganz. Unlike
the latter two witnesses, Chun appeared to answer all questions forth-
rightly and honestly, without any prevarication or evasion, and his
testimony was consistent with the documentary and other undisputed
evidence. Although Chun was both the Charging Party’s counsel of
record and the General Counsel’s witness in this proceeding, I find that
this is neither disqualifying nor sufficient reason by itself to discount
his testimony, particularly when weighed against the unsupported and
implausible testimony by Menczer and Ganz. See generally Operating
Engineers Local 9 (Fountain Sand & Gravel Co.), 210 NLRB 129 fn. 1
(1974).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1238
conducting its business operations, it annually derives gross
revenues in excess of $500,000, and purchases and receives
goods and materials in excess of $5000 directly from suppliers
located outside the State of New York, and that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Respondent also admits, and I
find, that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
On December 29, 2008, the Union filed a petition for an
election seeking certification as representative of Respondent’s
clerks and delivery workers (Case 29–RC–11704). After re-
ceiving the petition, Respondent’s president, David Menczer,
retained David Ganz to represent the Company. Ganz operates
the Tri-State Commercial Association, an association that
represents employers in labor relations. (Tr. at 63, 72, and 83.)
1. Ganz files notice of appearance in representation case
Thereafter, on January 5, 2009, Ganz submitted a formal no-
tice of appearance as Respondent’s representative in the case.
In that capacity, the same day he also executed a commerce
questionnaire for the Respondent. The questionnaire indicated,
among other things, that the Respondent was a member of, or
participated in, the Tri-State Commercial Association.
2. Ganz executes Stipulated Election Agreement
Over the next few days, the Union’s counsel, Jae Chun, had
several telephone conversations with Ganz regarding the time
and place for the election. (Tr. at 18.) Eventually, an agree-
ment was reached, and on January 8, 2009, Ganz and Chun
executed a Stipulated Election Agreement on behalf of the Re-
spondent and the Union, respectively, which the Regional Di-
rector approved the same day. (GC Exhs. 2 and 3; and Tr. at 18
and 84.)
Pursuant to the stipulation, the election was originally sched-
uled for January 26, 2009. However, on January 22, the Re-
gional Office postponed the election indefinitely at the Union’s
request pending Respondent’s submission of an accurate voter
eligibility list and the outcome of unfair labor practice charges
the Union had filed against Respondent (Cases 29–CA–29423
and 29–CA–29368). (See GC Exh. 5; and Tr. at 20.)
3. Ganz responds to Union’s ULP charge against Respondent
Ganz also represented Respondent with respect to the Un-
ion’s unfair labor practice charges. (Tr. at 63 and 84.) By let-
ter dated February 4, 2009, Ganz formally responded to the
NLRB Regional Office “on behalf of [Respondent]” regarding
the issues raised by the charge in Case 29–CA–29368. The
letter disputed the allegations and requested that the charge be
dismissed. (GC Exh. 4; and Tr. at 84 and 93.) During this
period, Chun and Ganz also spoke directly on at least one occa-
sion regarding the Union’s unfair labor practice charges against
Respondent. (Tr. at 20.)
4. Ganz executes voluntary recognition agreement with Union
Thereafter, in May 2009, Ganz called Chun to discuss ways
to resolve the unfair labor practice charges. During this con-
versation, Ganz indicated that, based on the number of cards
that the Union had submitted to the Board, Respondent was
willing to recognize the Union. (Tr. at 21 and 35.) Accord-
ingly, Chun drafted a “Recognition Agreement,” which Ganz
and Kevin Lynch, the Union’s director of organizing, subse-
quently signed on May 27, 2009.3 The agreement provided as
follows:

WHEREAS, Local 338, RWDSU/UFCW (“Local 338”) has
requested recognition as the exclusive collective bargaining
representative of all full-time and regular part-time clerks and
delivery persons employed by One Stop Kosher Supermarket
(“One Stop”) at 98 Rutledge St., Brooklyn, New York 11211.

NOW THEREFORE, the parties hereto agree that:

One Stop, having determined that authorization cards
were executed by a majority of its employees employed in

3 The foregoing facts are based on Chun’s testimony. Although
Ganz testified to a different version of the events, I discredit his testi-
mony. According to Ganz, the conversation occurred with Lynch,
during a meeting at a local restaurant about another kosher supermarket
in Brooklyn that he represented (Hatzlacha), rather than with Chun on
the phone. (Indeed, Ganz testified that he never had a conversation with
Chun about the Respondent; that all such conversations were with
Lynch.) Ganz testified that he complained to Lynch during the meeting
about a subpoena that had been served between Passover and Shvouth,
which requested a long list of information. (The record is unclear
whether the subpoena had been served on Respondent or Hatzlacha, or
what information it sought. (Compare Tr. at 74–75 and 101, with Tr. at
84–85.) Specifically, he told Lynch
Why do you torture your victim? We can go through it peacefully and
have a discussion of an election, and have a negotiation with [a] con-
tract, which I do [for] many, many companies. Why did we have to
have this belligerent movement, fighting back and forth every time? .
. . You’re asking for something which the Company can’t give, and
eventually there’s going to be problems. . . . And you’re the one who
brings them out to such a position. . . . You’re dealing here with a
Company where all are Jewish people [and are] on holiday. Why do
you torture them? [Do] you want to be Hitler number two?
According to Ganz, Lynch responded that he did not want to be
“Hitler number two,” but that he could not pull the subpoena back
because there were “only 2 days before the hearing.” Lynch therefore
proposed that Ganz sign the recognition agreement with the Union so
that he would have “a reason to pull back the trial and subpoena.”
Ganz immediately agreed, shook his hand, and signed the agreement.
(Tr. at 74–75, 84–87, 90–94, and 98.)
As indicated in Respondent’s posthearing brief, Ganz’ foregoing tes-
timony is “uncontroverted” (Br. at 4), in the sense that neither the Gen-
eral Counsel nor the Charging Party called Lynch to rebut Ganz’ testi-
mony. However, while Ganz’ testimony was uncontroverted by Lynch,
it was clearly inconsistent both with Chun’s prior testimony and with
the supporting documentary evidence that the General Counsel had
previously introduced, without objection, which indicated that Ganz
mailed his signed copy of the agreement to Chun (Exh. 7, p. 2; and Tr.
at 21–22). Further, as discussed infra, there were also substantial other
grounds to question Ganz’ credibility. Thus, under all the circum-
stances, there was no real need for the General Counsel or Charging
Party to prolong the trial by calling Lynch as a witness. Cf. Roosevelt
Memorial Medical Center, 348 NLRB 1016, 1022 (2006) (no adverse
inference was warranted by respondent’s failure to call its manager, as
the circumstances indicated that the manager was not called because his
testimony was unnecessary, not because it would have been adverse).
ONE STOP KOSHER SUPERMARKET 1239
its store and unit described above designating Local 338 as
the exclusive collective bargaining representative of said
employees, and being satisfied that Local 338 represents
an uncoerced majority of said employees, hereby recog-
nizes Local 338 as the exclusive collective bargaining rep-
resentative of said employees.

ONE STOP KOSHER
SUPERMARKET
LOCAL 338, UFCW
By: [David Ganz]_____ By: [Kevin P. Lynch]___

(GC Exh. 7.) The same day, the Union filed a request with the
Region to withdraw its previous election petition, which the
Regional Director granted. (GC Exh. 5.)
5. The Union requests Respondent to bargain
and provide information
Chun next saw Ganz a week later, at a meeting regarding
Hatzlacha Supermarket, another kosher supermarket in Brook-
lyn where the Union had recently been certified as the collec-
tive-bargaining representative of the employees. During the
meeting, Chun told Ganz that the Union was ready to start bar-
gaining with Respondent. Ganz replied, “Lets take one thing at
a time,” which Chun understood to mean that Ganz wanted to
wait to see if an agreement could first be completed with
Hatzlacha. Chun agreed, on the assumption (unstated) that the
Union could then get a “me too” agreement with Respondent.
(Tr. at 22–24, and 37.)
Over the next few months, Chun and Ganz continued to meet
to discuss Hatzlacha. During those meetings, Chun mentioned
to Ganz on a couple of occasions, “If we don’t get this thing
done, then we’re going to have to start One Stop Kosher.”
Ganz replied, “Okay, sure, sure,” but did not commit to any
specific date to begin negotiations. (Tr. at 25.)4
Eventually, Hatzlacha declared an impasse in its negotiations
with the Union. Shortly thereafter, on September 11, 2009,
Lynch sent a letter to Respondent’s manager, Moshe Lieber,
with a copy to Ganz, formally requesting “bargaining unit in-
formation for the purpose of negotiating a collective bargaining
agreement and formulating wage and benefit proposals and to
fulfill our duties as bargaining representative.” Specifically,
the letter requested:

1. Names, Job Titles, Dates of Hire and wage history
for each employee, including wage rate as of one (1) year
ago and as of two (2) years ago, and status (regularly
scheduled hours per week and hours per day).
2. Wage data including: average bargaining unit wage
by classification; starting rate for all classifications; pay
scales and amounts of raises uniformly granted.
3. A copy of all job descriptions, copies of recent job
postings; past practice policies on transfers of position,
shift or unit; and sample of recent work schedules.
4. Fringe Benefits: Copies and descriptions of any
benefit programs currently provided to employees, such as

4 Contrary to Chun, Ganz testified that the parties’ previous recogni-
tion agreement was not raised for the first time until September, after
the Union and Hatzlacha had reached an impasse in negotiations. (Tr.
at 77–78.) Again, however, I discredit Ganz’ testimony in this respect.
health insurance, stock purchase and pension plans, in-
cluding copies of the booklets, employee handbooks, and
the cost of each benefit to the company and to the employ-
ees.

For health insurance benefits:

The date the insurance plan, if any, will be re-negotiated with
the insurance carrier (i.e. the anniversary date) and any pro-
posed changes; the number of employees with health plan
coverage and the number enrolled for dependent coverage.

For the Pension Plan:

A summary of the agreement, actuarially reviewed, the num-
ber of retirees and the most recent form 5500 or 500(c).

5. Rules: Copies of personal [sic] hand book and cop-
ies of any other written rules or policies governing work
and personal relations.

Finally, the letter requested that the Respondent call the Un-
ion’s office “as soon as possible, and no later than September
30, 2009,” to “arrange for the start of negotiations.” (GC Exh.
8.) (See also Tr. at 25–27, 76–77, and 85–86.)
6. Ganz agrees to begin bargaining and provide information
Receiving no response to its letter, on October 20, 2009, the
Union filed the instant 8(a)(5) charge. Approximately 2
months later, it received the following letter dated December
15, 2009, from Ganz (on Tri-State Commercial Association
stationery):

I apologize on behalf of the Employer for not respond-
ing to your letter date [sic] Sept. 11, 2009; I just received
the letter from the Board for the first time.
I was under the impression or rather misled to believe
that the parties resolved this matter in May 2009. I
thought everything was put to rest when the Union with-
drew the charges at the Board.
Unfortunately, for reasons unbeknownst to me the Un-
ion desires to reactivate this process and wishes to negoti-
ate.
I have no objection to meet [sic] the Union to negotiate
and provide the information that we able [sic] to furnish. I
am ready, willing, and able to meet the Union for negotia-
tions. I am proposing the following dates: December 21,
22, & 23, 2009, in my office.
Please advise me of the date and time you are avail-
able.

(GC Exh. 9.) (See also Tr. at 27.)
Chun responded to Ganz by letter dated December 18, 2009.
Chun stated that the Union was unable to meet on the proposed
dates in late December (which were just before the Christmas
holiday), but would be available after January 5, 2010. He also
again requested the information previously requested in
Lynch’s September 11 letter. (GC Exh. 10.) (See also Tr. at
29.)
About 10 days later, by letter dated December 28, 2009,
Ganz provided some of the information the Union had re-
quested, including employee names and addresses and wage
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1240
rates as of January 2009, which he had received from Lieber’s
office that day. (GC Exh. 11; and Tr. at 30 and 94–96.)
7. Ganz withdraws as Respondent’s representative
Ganz continued as Respondent’s representative with respect
to labor relations and the NLRB until January of the following
year. (Tr. at 85–86.) At that time, by letter dated January 13,
2010, Ganz notified the Region that he was no longer represent-
ing Respondent. (GC Exh. 6.) After learning of this, on March
15, 2010, Chun sent a letter to Respondent’s attorney, Jeffery
Meyer, again requesting that Respondent commence bargaining
and provide the remaining information that had not previously
been provided. (GC Exh. 12.) To date, however, no negotia-
tions have occurred and the remaining information has not been
provided.
B. Analysis
As indicated above, Respondent’s primary argument
throughout the proceeding has been that it is not bound by the
recognition agreement because Ganz lacked the authority to
execute it. During the trial and in its posthearing brief, Re-
spondent has also offered various other reasons why the agree-
ment is not binding, including that it was “questionably pro-
cured” and was a “sham” agreement that was never meant to be
given any force or effect, and that it was not “coupled with”
any indicia of majority support. However, for the reasons set
forth below, I find that Respondent’s arguments lack merit and
that it violated the Act as alleged by failing to bargain and pro-
vide information to the Union.
1. Whether Ganz had authority to execute the
recognition agreement
Pursuant to Section 2(13) of the Act, the Board applies
common law agency principles in determining whether an indi-
vidual has acted as an agent of an employer.5 Under those
principles, an agency relationship may be found based on either
actual authority (the employer’s express or implied manifesta-
tion of authority to the individual), or apparent authority (the
employer’s manifestation of the individual’s authority to a third
party). See, e.g., Toering Electric Co., 351 NLRB 225, 236
(2007); and Wal-Mart Stores, 350 NLRB 879, 884 (2007).
Moreover, even in the absence of actual or apparent authority, a
principal may be bound by the actions of an agent as if origi-
nally authorized where the principal has subsequently “ratified”
those actions by its silence and/or affirmative conduct. See
Service Employees Local 87 (West Bay Maintenance), 291
NLRB 82, 83 (1988).
As the party asserting an agency relationship here, the Gen-
eral Counsel has the burden of proving its existence. See, e.g.,
Tyson Fresh Meats, Inc., 343 NLRB 1335, 1336 (2004); and
Pan-Oston Co., 336 NLRB 305, 306 (2001). I find that this
burden has been met. Specifically, in agreement with the Gen-
eral Counsel, I find that a preponderance of the evidence sup-
ports a conclusion that Ganz had both actual and apparent au-

5 Sec. 2(13) of the Act provides: “In determining whether any person
[acted] as an ‘agent’ . . . the question of whether the specific acts per-
formed were actually authorized or subsequently ratified shall not be
controlling.”
thority to execute the recognition agreement on behalf of Re-
spondent. I further find that Respondent subsequently ratified
Ganz’ action.
a. Actual authority
There is no direct evidence that Respondent expressly au-
thorized Ganz to sign the recognition agreement. On the con-
trary, Ganz specifically testified that no such express authority
was given. Indeed, he testified that Respondent gave him a
“mandate” not to sign an agreement without an election. Ganz
testified that he signed the agreement “unilaterally, on my own,
without authority from the Company,” because he “thought [it
was] invalid,” and was just for the purpose of getting the Union
to withdraw its charges from the Board. (Tr. at 78–80, 82, 90–
94, and 98.)
However, like other issues of fact, the existence of actual au-
thority may prove by circumstantial as well as direct evidence.
Thunderbird Hotel, 152 NLRB 1416, 1424 (1965). See also
Amusement Industry v. Stern, ___ F.Supp.2d ___, 2010 WL
445906, slip op. at 10–12 (S.D. N.Y. March 1, 2010), and cases
cited there. Here, for the following reasons, I find that Ganz’
testimony is not credible, and that the overall circumstances
support a reasonable inference that Respondent expressly or
impliedly granted Ganz actual authority to sign the recognition
agreement.
First, it is undisputed that Ganz was retained by Respondent
to handle all matters related to the Union’s representation peti-
tion; that he had authority to negotiate and execute the Stipu-
lated Election Agreement on behalf of the Respondent; and that
he also served as Respondent’s representative with respect to
the Union’s related unfair labor practice charges. (See Tr. at
60–63, 72, and 83–84.) (See also Tr. at 85–86 (admitting that
he represented the Respondent “as far as labor relations and the
NLRB . . . in general”).) Ganz’ execution of a recognition
agreement with the Union in return for withdrawal of its
charges was clearly related to this undisputed general author-
ity.6
Second, it is also undisputed that Ganz did, in fact, sign the
recognition agreement on the line reserved for the Respondent
while still acting as Respondent’s labor relations representative.
(GC Exh. 7; and Tr. at 79–80, 85–86, and 90–91.) It is difficult
to believe that Ganz—who by his own testimony has been a
labor consultant for over 30 years and had never signed a vol-
untary recognition agreement before (Tr. at 100)—would have
done so in this instance “unilaterally,” without some manifesta-
tion from Menczer that he had such authority, particularly if, as

6 The General Counsel’s posthearing brief argues that Ganz’ execu-
tion of the recognition agreement was actually within the scope of his
undisputed general authority, citing Batavia Nursing Inn, 275 NLRB
886 fn. 2 (1985) (attorney who served as employer’s representative in
both legal and nonlegal matters relating to the election, including at
preelection conferences and the counting of ballots, acted within the
scope of his general authority when he assaulted union organizer on
election day). See also Wal-Mart Stores, supra, 350 NLRB at 884;
Tyson Fresh Meats, supra, 343 NLRB at 1336; Mountaineer Steel,
Inc., 326 NLRB 787, 794 (1998); and Contemporary Guidance Ser-
vices, 291 NLRB 50, 64 (1988). However, it is unnecessary to decide
this issue given my conclusion that express or implied authority may
otherwise reasonably be inferred from all the circumstances.
ONE STOP KOSHER SUPERMARKET 1241
he testified, Menczer had previously “mandated” him not to
sign any agreements.
Third, Ganz’ explanation for why he signed the recognition
agreement unilaterally, in contravention of Menczer’s pur-
ported mandate, makes no sense.7 The Union’s willingness to
withdraw the election petition and related unfair labor practice
charges in exchange for the agreement clearly indicates that the
Union believed the recognition agreement was valid, not inva-
lid. See Richmond Toyota, 287 NLRB 130, 132 (1987).8 Fur-
ther, as discussed above, even if true that Ganz harbored a con-
trary belief, it is highly unlikely that he would have signed the
agreement without consulting his client, as the foreseeable and
probable result of doing so would be more charges and litiga-
tion in the event Respondent refused to bargain (which is even-
tually what happened).
Fourth, Respondent’s conduct was inconsistent with Ganz’
testimony. Lieber was clearly aware that the Union was alleg-
ing the existence of a voluntary recognition agreement at least
as of late October 2009, after the Union sent him its September
11 letter requesting bargaining and the NLRB Regional Office
served him with a copy of the Union’s new unfair labor practice
charge (which specifically mentioned the voluntary recognition
agreement). (See GC Exhs. 1 and 8; and Tr. at 84.) Ganz also
admitted that he informed Menczer of the recognition agree-
ment in late December. Nevertheless, at no time between Sep-
tember 2009 and January 13, 2010, when Ganz withdrew as
representative, did Respondent disavow Ganz’ actions or repu-
diate the agreement. On the contrary, Lieber’s office provided
Ganz with the employee and wage information that he enclosed
with his December 28 letter to the Union. (See GC Exh. 11 and
Tr. at 94–96.) There is no apparent reason why Respondent
would have done so unless it believed that it had validly recog-
nized, and was legally obligated to bargain with, the Union.9

7 An implausible, inconsistent, or unsupported explanation for an ac-
tion may support an inference that the true motive or reason for the
action is contrary. See E.C. Waste, Inc. v. NLRB, 359 F.3d 36, 43 (1st
Cir. 2004); Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 230 (D.C.
Cir. 1995); Holo-Krome Co. v. NLRB, 954 F.2d 108, 112–114 (2d Cir.
1992); NLRB v. Dillon Stores, 643 F.2d 687, 693 (10th Cir. 1981); and
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966).
8 At the end of the first day of trial, Respondent’s counsel proffered
that he would present “proof” that “[the agreement] was a sham . . . to
get the International off the Union’s back.” (Tr. at 45.) A similar as-
sertion is made in Respondent’s posthearing brief: that “the credible
evidence presented at trial” indicates that the agreement was only “po-
litical cover” for the Union to cease its organizing efforts, and that “the
Union [was] interested only in appeasing its International affiliate
through the provision of statistical information (i.e., production of a
purported recognition agreement).” (Br. at 3–4.) However, no specific
testimony or other evidence supporting these assertions was ever pre-
sented. Indeed, Ganz’ testimony (which, as indicated above, I have
otherwise discredited) does not even mention the International Union.
9 As manager, Lieber was responsible for taking care of the inside of
the store, including independently hiring and firing employees, and
writing most of the checks. (Tr. at 62–63 and 67.) (See also GC Exh.
4.) He therefore had at least apparent authority to recognize and bar-
gain with the Union on behalf of the Respondent. See, e.g., Richmond
Toyota, supra, 287 NLRB at 131.
Finally, Respondent has failed to turn over any of the docu-
ments subpoenaed by the General Counsel in this proceeding
regarding the agency relationship between Respondent and
Ganz. During a discussion of the subpoena on the first day of
trial, Respondent’s counsel advised that no documents had been
disclosed to the General Counsel because, according to his
client (Menczer), there were no documents responsive to the
subpoena in his or the company’s possession, not even any
canceled checks to Ganz. (Tr. at 8–11.) However, when ques-
tioned at trial the following day, Menczer admitted that he had
paid Ganz by check and that he had not even attempted to lo-
cate any of the canceled checks he had given to the company
accountant. (Tr. at 64–66.) Ganz also admitted on the second
day of trial that he had submitted bills to Respondent for his
services. (Tr. at 88.)
Such documents are clearly responsive to the General Coun-
sel’s subpoena. (See GC Exh. 13, pars. 2 and 4–6.) Accord-
ingly, I find that Respondent failed to comply with the sub-
poena, and that its failure to do so warrants an adverse infer-
ence that the undisclosed documents reflecting direct commu-
nications between Respondent and Ganz would lend additional
evidentiary support to an inference or finding that Ganz had
actual authority to execute the agreement. See generally ADF,
Inc., 355 NLRB No. 14, slip op. at 6 (2010); Paint America
Services, Inc., 353 NLRB 973, 992 (2009); Essex Valley Visit-
ing Nurses Assn., 352 NLRB 427, 440–443 (2008), and cases
cited there. See also Auto Workers v. NLRB, 459 F.2d 1329
(D.C. Cir. 1972).10
b. Apparent authority
Even assuming, arguendo, that Ganz did not have actual au-
thority to execute the recognition agreement, I find that he had
apparent authority to do so. As indicated above, Respondent
held Ganz out to the Union as its primary representative and
conduit with respect to the Union’s representation petition and
unfair labor practice charges, and Ganz’ execution of the rec-
ognition agreement was plainly related to that function. Fur-
ther, Respondent did nothing to repudiate the recognition
agreement; on the contrary, Respondent provided the Union
with employee and wage information that it had requested in
order to prepare for bargaining. Clearly, in these circum-
stances, the Union would reasonably believe that Ganz had the
authority to execute the recognition agreement on behalf of
Respondent. See generally Dallas & Mavis Specialized Carrier
Co., 346 NLRB 253, 254, and 272 (2006); Cooper Industries,
328 NLRB 145 (1999); Dentech Corp. 294 NLRB 924, 926
(1989); and Richmond Toyota, supra.
c. Ratification
Finally, I find that Respondent’s silence (failure to immedi-
ately disavow Ganz’ execution of the recognition agreement
after acquiring knowledge of it) and subsequent affirmative
conduct (supplying the Union with requested information to

10 The Charging Party requested that I take such an adverse inference
on the first day of trial. At that time, I reserved ruling on the request
pending testimony from Menczer. (Tr. at 11–12.) Having reviewed
Menczer’s testimony, I grant the Charging Party’s request for the rea-
sons set forth above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1242
begin bargaining) also constituted a “ratification” of Ganz’
action equivalent to an original authorization. Thus, even if
Ganz had neither actual nor apparent authority to execute the
recognition agreement, Respondent has nevertheless become
bound by it in the same manner and to the same extent as if
Respondent had originally authorized it. See Service Employ-
ees Local 87 (West Bay Maintenance), supra, 291 NLRB at 83.
See also In re South African Apartheid Litigation, 633
F.Supp.2d 117, 121–122 (S.D.N.Y. 2009); and 12 Williston on
Contracts Sec. 35:22 (4th Ed. 2009).11
2. Whether Respondent is bound by the recognition agreement
As noted above, Respondent also argues that the recognition
agreement was “questionably procured,” and was a “sham”
agreement that was “never meant to be given any force or ef-
fect.” (Tr. at 42–45 and Br. at 3.) This argument is apparently
based on Ganz’ testimony, described above, that he thought the
agreement was “invalid,” and his December 15, 2009 letter to
the Union, which indicated that he had been “misled” to believe
that “everything” would be “put to rest” when he signed the
recognition agreement and the Union withdrew its charges.
However, there is no independent credible evidence support-
ing these vague and self-serving assertions. At trial, Respon-
dent’s counsel cited as support the Union’s subsequent failure
to file a voluntary recognition (VR) petition with the Region,
requesting that Respondent post a Dana notice to employees,
i.e., an official notice advising employees of the voluntary rec-
ognition agreement and their right to file a decertification peti-
tion or to support a rival union petition.12 (Tr. at 42.) This
argument, however, is not repeated in Respondent’s post-
hearing brief. In any event, I reject it. Although the Union
apparently did not file a formal VR petition with the Region
(the General Counsel stipulated at the hearing that no Dana
notice has been posted), the Union notified the Region of the
recognition agreement when it requested withdrawal of its rep-
resentation (RC) petition. (See GC Exh. 5.) Further, as noted
by the General Counsel, there is no requirement that a Dana
notice be posted.13

11 The General Counsel’s posthearing brief does not specifically ar-
gue that agency is established pursuant to the doctrine of “ratification”
as well as actual and apparent authority. However, the same facts are
relevant to all three theories here and have been fully litigated. Accord-
ingly, I find that it is appropriate to evaluate the agency issue under all
three theories. See generally AKAL Security, 354 NLRB No. 11, slip
op. at 5 fn. 8 (2009) (distinguishing cases reaching a contrary conclu-
sion on the ground that they “involved a change in the theory of the
violation that would have required litigation of a different set of facts,
not just a change in the analytical framework”).
12 See Dana Corp., 351 NLRB 434 (2007). See also Office of Gen-
eral Counsel, Division of Operations Management, Memorandum OM
08-07 (Oct. 22, 2007) (discussing Regional Office procedures for im-
plementing Dana Corp.).
13 Dana Corp. addressed only the circumstances whereby a volun-
tary recognition agreement, and any contract executed thereafter, will
bar a decertification or rival union petition. The Board majority spe-
cifically stated that it was not addressing the “circumstances in which
employers may . . . unilaterally withdraw recognition from a union.”
351 NLRB at 436–437.
Accordingly, even assuming arguendo that parole evidence
is admissible to prove that an otherwise unambiguous recogni-
tion agreement was fraudulently obtained or a “sham,” I find
that Respondent has failed to prove that defense here. See
Sheehy Enterprizes, Inc., 353 NLRB No. 84 (2009), enfd. ___
F.3d ___, 2010 WL 1541280 (7th Cir., April 20, 2010); and
Horizon Group of New England, 347 NLRB 795 (2006) (to
establish “fraud in the execution” defense, employer must show
that it relied on misrepresentations by the union; that it did not
know the character or essential terms of the agreement; and that
it did not have a reasonable opportunity to obtain such knowl-
edge).
As indicated above, Respondent’s posttrial brief also argues
that the agreement should not be given effect because it was
“coupled with no indicia of majority status.” (Br. at 3.) This
argument appears to be based on the testimony of both Ganz
and Menczer that the Union never verified its majority status by
showing them its cards. (Tr. at 61 and 73.) However, the rec-
ognition agreement stated on its face that Respondent had “de-
termined that authorization cards were executed by a majority
of its employees” in the unit, and was “satisfied that [the Un-
ion] represents an uncoerced majority of said employees.” (GC
Exh. 7.)
In any event, even if Respondent had not, in fact, done what
the signed agreement said it did, this would not change the
result. As noted by the General Counsel, there is no require-
ment under extant Board law that a union show the employer
proof of its majority status unless the employer requests to see
the evidence, i.e. an employer may lawfully recognize a union
as the exclusive Section 9(a) representative based solely on the
union’s unverified claim of majority status. See, e.g., Moise &
Son Trucking, 197 NLRB 198 (1972). Further, while an em-
ployer in such circumstances may subsequently challenge the
union’s 9(a) status, it may not unilaterally terminate its bargain-
ing obligation absent an affirmative showing that the union
lacked majority support at the time of recognition (if the issue
is raised within 6 months thereof), or that it currently lacks
majority support. See Staunton Fuel & Material, 335 NLRB
717, 719 fn. 10 (2001); and Oklahoma Installation Co., 325
NLRB 741, 742 (1998), enf. denied on other grounds 219 F.3d
1160 (10th Cir. 2000), and cases cited there. Here, no affirma-
tive evidence has been presented that the Union lacked majority
status at the time of recognition in May 2009, when the instant
charge was filed in October 2009, or thereafter through the date
of the hearing.
3. Whether Respondent unlawfully failed to bargain
and provide information
Having found that Respondent voluntarily recognized the
Union, and that it is bound by its recognition agreement, I fur-
ther find that it violated Section 8(a)(5) of the Act by failing to
meet and bargain with the Union on request.14 Although Re-

14 The exact date that this violation began is not entirely clear from
the record. Both the complaint and the General Counsel’s posthearing
brief allege that Respondent has refused to bargain since June 2009.
However, as discussed above, Chun appeared to agree with Ganz’
initial proposal in early June to delay the start of the One Stop negotia-
tions pending further negotiations over the Hatzlacha agreement. Nev-
ONE STOP KOSHER SUPERMARKET 1243
spondent’s answers deny that the unit is appropriate (GC Exh.
1), Respondent previously stipulated in the representation pro-
ceeding that the petitioned-for unit of clerks and delivery per-
sons is appropriate (GC Exh. 3). Further, Respondent has of-
fered no argument in this proceeding as to why the unit is not
appropriate. In any event, having voluntarily recognized the
Union as the exclusive representative of the agreed-upon unit,
Respondent is now estopped from challenging the appropriate-
ness of that unit. See Strand Theatre of Shreveport Corp., 346
NLRB 523, 536 (2006), enfd. 493 F.3d 515 (5th Cir. 2007); and
Red Coats, 328 NLRB 205 (1999).
I also find that Respondent failed to timely provide the Un-
ion with all of the information it requested in its September 11,
2009 letter. As indicated above, Respondent provided only
some of the information requested by the Union. Further, the
remaining information clearly relates to wages, hours, and other
terms and conditions of the unit employees, and is therefore
presumptively relevant. Finally, although Respondent denied
in its answers that the information is relevant and necessary, it
has not presented any evidence or argument to rebut the pre-
sumption. Indeed, Respondent’s counsel conceded at the hear-
ing that the information requested is “generally relevant.” (Tr.
at 26.) Accordingly, Respondent’s failure to timely provide all
of the requested information to the Union violated Section
8(a)(5). See, e.g., TEG/LVI Environmental Services, 328
NLRB 483 (1999).
CONCLUSIONS OF LAW
1. By failing and refusing to meet and bargain with the Un-
ion as the recognized exclusive collective-bargaining represen-
tative of the appropriate unit, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1), and Section 2(6) and (7) of the Act.
2. By failing and refusing to furnish the Union with relevant
and necessary information it requested in its September 11,
2009 letter, Respondent has also engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(5)
(and (1), and Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall order it to cease and desist and to take
certain affirmative action designed to effectuate the policies of
the Act. Specifically, having found that Respondent unlawfully
failed and refused to bargain in good faith with the Union pur-
suant to its voluntary recognition agreement, I shall order Re-
spondent to do so consistent with its rights and obligations
under the Act. See, e.g., Alpha Associates, 344 NLRB 782
(2005); and Red Coats, supra. In addition, having found that
Respondent failed and refused to provide the Union with all of
the relevant and necessary information it requested on Septem-
ber 11, 2009, to prepare for bargaining, I shall order it to pro-
vide the information to the Union. See, e.g., TEG/LVI Envi-

ertheless, Chun continued to raise the issue informally thereafter, and
the Union eventually sent a formal letter requesting bargaining in Sep-
tember, which failed to receive a timely response. Thus, I find that
Respondent has unlawfully failed and refused to bargain since at least
September 2009.
ronmental Services, supra. Finally, I shall require Respondent
to post the standard notice at its facility advising the employees
of this decision and order.15
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended16
ORDER
The Respondent, One Stop Kosher Supermarket, Brooklyn,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 338, Retail, Wholesale
and Department Store Union, United Food and Commercial
Workers (the Union) as the recognized exclusive collective-
bargaining representative of employees in the following appro-
priate unit:

All full-time and regular part-time clerks and delivery persons
employed by Respondent at its 98 Rutledge St., Brooklyn,
New York facility, excluding cashiers, clericals, managers,
guards and supervisors as defined in Section 2(11) of the Act.

(b) Refusing to provide information to the Union that is rele-
vant and necessary to the performance of its duties as the exclu-
sive collective-bargaining representative of the unit employees.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the unit employees concerning terms and condi-
tions of employment and, if an understanding is reached, em-
body the understanding in a signed agreement.
(b) Provide the Union with all of the information that it re-
quested in its September 11, 2009 letter.
(c) Within 14 days after service by the Region, post at its fa-
cility in Brooklyn, New York, copies of the attached notice
marked “Appendix.”17 Copies of the notice, on forms provided
by the Regional Director for Region 29, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the

15 The complaint requests that Respondent be specifically required to
post the notice “via its internet, by email, or other electronic proce-
dures.” (GC Exh. 1.) However, I lack the authority under extant Board
law to specifically order this remedy in the absence of any record evi-
dence that Respondent customarily disseminates notices to its employ-
ees electronically. See Valley Hospital Medical Center, Inc., 351
NLRB 1250 fn. 1 (2007). The request is therefore denied.
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
17 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1244
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 employ-
ees employed by the Respondent at any time since September
2009.
(d) 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.
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT refuse to bargain with Local 338, Retail,
Wholesale and Department Store Union, United Food and
Commercial Workers (the Union) as the recognized exclusive
collective-bargaining representative of employees in the fol-
lowing appropriate unit:

All full-time and regular part-time clerks and delivery persons
employed by us at our 98 Rutledge St., Brooklyn, New York
facility, excluding cashiers, clericals, managers, guards and
supervisors as defined in Section 2(11) of the Act.

WE WILL NOT refuse to provide information to the Union that
is relevant and necessary to the performance of its duties as the
exclusive collective-bargaining representative of the unit em-
ployees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in writ-
ing and sign any agreement reached on terms and conditions of
employment for the unit employees.
WE WILL provide the Union with all of the information that it
requested in its September 11, 2009 letter, which is relevant
and necessary for the Union to prepare for bargaining.

ONE STOP KOSHER SUPERMARKET, INC.