Associated Supermarket

National Labor Relations Board - Administrative Judge Opinions

Feb 17, 2010

29-CA-029830 (N.L.R.B. Feb. 17, 2010)

JD(NY)–04-10
Long Beach, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ALMONTE BEACH FOOD CORP. d/b/a
ASSOCIATED SUPERMARKET
and Case No. 29-CA-29830
LOCAL 338, RETAIL, WHOLESALE AND
DEPARTMENT STORE UNION/ UNITED
FOOD AND COMMERCIAL WORKERS
Henry Powell, Esq., Counsel for the General Counsel.
Elise Feldman, Esq., Friedman & Wolf. Counsel for the Charging Party.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on January
21, 2010 in Brooklyn, New York. The Complaint herein, which issued on December 21, 20091
and was based upon an unfair labor practice charge that was filed on September 18 by Local
338, Retail, Wholesale and Department Store Union/ United Food and Commercial Workers,
herein called the Union, alleges that Almonte Beach Food Corp., d/b/a Associated Supermarket,
herein called the Respondent, refused to allow a business representative of the Union to visit its
facility to investigate compliance with the contract between the Respondent and the Union, as
provided for in that contract, in violation of Section 8(a)(1)(5) of the Act. The Complaint further
states that pursuant to the Board’s Rules and Regulations, the Respondent’s Answer must be
received by the Board’s regional office on or before January 4, 2010. The Respondent failed to
file an Answer by that date. The regional office sent Respondent a letter by certified and by
regular mail reminding the Respondent that it was required to file an Answer to the Complaint
and giving the Respondent until January 13, 2010 to file an Answer. No Answer was received
and the Respondent did not appear at the hearing herein. Counsel for the General Counsel, at
the hearing, moved for default judgment, which motion I granted. Based upon the Complaint
herein, I make the following findings of fact and conclusions of law:
1. The charge herein was filed by the Union on September 18, and served by regular
mail upon Respondent on or about September 28.
2. At all material times, Respondent, a domestic corporation with its principal office and
place of business at 663 East Park Avenue, Long Beach, New York, herein called its Long
Beach facility, has been engaged in the retail sale of foodstuff and related commodities.
3(a). During the past year, which period is representative of its annual operations
generally, Respondent, in the course and conduct of its business operations described above in
paragraph 2, derived gross annual revenues at its Long Beach facility valued in excess of
$500,000.

1 Unless indicated otherwise, all dates referred to herein relate to the year 2009.
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3(b). Also during the past year, Respondent purchased and received at its Long Beach
facility goods, supplies and materials valued in excess of $5,000 directly from entities located
within the State of New York who, in turn, received those goods, supplies and materials from
entities located outside the State of New York.
4. At all material times, the Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
5. At all material times, the Union has been a labor organization within the meaning of
Section 2(5) of the Act.
6. The following employees of Respondent, herein called the Unit, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the
Act:
All present and future full-time and part-time employees (other than store managers,
butchers and meat wrappers) employed in all departments at the Employer’s Long
Beach facility.
7. At all material times, the Union has been the designated exclusive collective
bargaining representative of the Unit. This recognition has been embodied in successive
collective bargaining agreements, the most recent of which was effective from November 12,
2003 through November 4, 2006, and which agreement’s expiration date was extended by
mutual agreement of the parties to January 13, 2007.
8. At all times, since at least 2003, based upon Section 9(a) of the Act, the Union has
been the exclusive collective bargaining representative of the Unit.
9. Article 14 of the most recent collective bargaining agreement between Respondent
and the Union states that: “The business agent or any authorized representative of the Union
may visit the stores of the Employer at any time.”
10. At all material times, Annabelle Rodriguez has been a supervisor of Respondent
within the meaning of Section 2(11) of the Act, and/or an agent of the Respondent acting on its
behalf.
11(a). On August 28, Union business representatives, pursuant to Article 14 of the
collective bargaining agreement described above in paragraph 9, visited Respondent’s facility to
investigate Respondent’s compliance with the most recent collective bargaining agreement
described above in paragraph 7.
11(b). On August 28, Respondent, by Annabelle Rodriguez, in the presence of
employees, ordered the business representatives referred to above in subparagraph (a), to
leave the Long Beach facility.
11(c). On August 28, pursuant to a request by the Respondent, police ejected the
business representatives referred to above in subparagraphs (a) and (b) from the Long Beach
facility.
12. By the conduct described above in paragraph 11, Respondent has been interfering
with, restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of
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the Act, in violation of Section 8(a)(1) of the Act.
13. By the conduct described above in paragraph 11, Respondent has failed and refused
to bargain collectively and in good faith with the Union as the exclusive collective bargaining
representative of the Unit, and thereby has been engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act.
14. 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
be ordered to take certain affirmative action designed to effectuate the policies of the Act. In this
regard, I recommend that a supervisor or agent of the Respondent be ordered to write a letter
(or e-mail) to the Union acknowledging that it was in error in not allowing the Union
representatives on its premises on August 28, and that, in the future, such representatives will
be allowed on the premises without restrictions.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:
ORDER2
The Respondent, Almonte Beach Food Corp., d/b/a Associated Supermarket, its
officers, agents and representatives, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with the Union by ordering the Union’s
business representatives to leave its facility, and by obtaining the assistance of the police in
forcing them to leave.
(b) In any like or related manner interfering with, restraining or coercing its 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) Notify the Union within 10 days of the receipt of this Decision, in writing, that it has no
objection to its business representatives visiting the store to police the terms of its collective
bargaining agreement with the Union.
(b) Within 14 days after service by the Region, post at its store in Long Beach, New

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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York, copies of the attached notice marked “Appendix.”3 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
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
August 28, 2009.
(c) 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 9, 2010.
_____________________________
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.”
JD(NY)–04-10

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 bargain in good faith with Local 338, Retail, Wholesale and
Department Store Union/ United Food and Commercial Workers (“the Union”) by ordering the
Union’s representatives to leave our facility, or by obtaining the assistance of the police in
forcing them to leave.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the
exercise of your rights guaranteed by Section 7 of the Act.
WE WILL notify the Union, in writing, that we have no objection to its representatives visiting the
store in order to police the terms of our contract with the Union.
ALMONTE BEACH FOOD CORP., d/b/a ASSOCIATED SUPERMARKET
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.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th 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.