Eastern Meats

National Labor Relations Board - Administrative Judge Opinions

Jan 8, 2009

29-CA-029158 (N.L.R.B. Jan. 8, 2009)

JD(NY)–03–09
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
FOOD RESOURCES INC. d/b/a EASTERN MEATS
and Case No. 29-CA-29158
UNITED FOOD AND COMMERCIAL WORKERS
UNION, LOCAL 342, AFL-CIO
Brent E. Childerhose, Esq., Counsel
for the General Counsel
DECISION
Statement of the Case
RAYMOND P. GREEN, Administrative Law Judge. I heard this case in New York
on December 18, 2008. In this regard I note that the Respondent did not appear in
person or by counsel.
The charge in this proceeding was filed on August 18, 2008 and an affidavit of
service was signed by Regina Gross showing that the charge was mailed to the
Respondent on September 16, 2008.
By letter dated November 21, 2008, one Douglas J. Pick Esq., notified the
Regional Office that his firm, Pick & Zabicki LLP, had been retained as counsel and
assignee to Food Resources Inc., d/b/a Eastern Meats in a proceeding in New York
State Supreme Court. (County of New York, Index No. 51003/08).
A Complaint and Notice of Hearing dated November 19, 2008 was issued by the
Director of Region 29 of the National Labor Relations Board. The U.S. Postal Service
Return Receipt shows that the Complaint was delivered to the Respondent, by certified
mail, on December 1, 2008.
By letter dated December 10, 2008, Counsel for the General Counsel sent a
letter to Mr. Pick stating that the Regional Office had issued a Complaint; that he had
been served with a copy of the Complaint; that the Respondent was required to file an
Answer by December 3, 3008; and that unless an Answer was filed, no later than the
close of business on December 17, 2008, the General Counsel would seek a Default
Judgment.
No Answer having been filed in this proceeding and the Respondent not having
made an appearance in person or by counsel, I hereby make the following
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I. Findings of Fact and Conclusions of Law
1. The Respondent is a domestic corporation with its principal office and place of
business located at 5600 1st Avenue, Building B-10, Brooklyn, New York where it had
been engaged in the sale of meats at wholesale.
2. During a period of time which is representative of its annual operations
generally, from on or about August 15, 2007 until on or about August 15, 2008, when it
ceased operations, the Respondent, in the course and conduct of its business
operations, purchased and received materials and supplies, valued in excess of
$50,000, at its Brooklyn facility, directly from entities located outside the State of New
York.
3. At all times material herein, the Respondent has been an employer engaged
in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
4. At all material times, the United Food and Commercial Workers Union, Local
342, AFL-CIO, has been a labor organization within the meaning of Section 2(5) of the
Act.
5. At all material times, Ira Fisher was Respondent’s manager and was a
supervisor of Respondent within the meaning of Section 2(11) of the Act and an agent
of the Respondent acting on its behalf.
6. The following employees of the Respondent constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9(b) of the Act:
All production, shipping, receiving, chauffeur, helper, sales, office and
maintenance employees and such other employees performing work
incidental thereto, employed by the Respondent in its plant or any and all
other plants now operated, or hereafter acquired and operated during the
term hereof, by Respondent, located in the State of New York and/or State
of New Jersey, excluding non-working supervisors and such other
categories as are excluded by the labor Management Relations Act of
1947 and as amended.
7. At all material times herein, the Union has been the designated exclusive
collective-bargaining representative of the employees in the unit and has been
recognized as the representative by the Respondent. This recognition has been
embodied in the parties’ collective bargaining agreement, the most recent of which was
effective from May 9, 2003 through may 9, 2007.
8. On June 29, 2007, the Union and the Respondent entered into a
Memorandum of Agreement modifying the collective bargaining agreement described
above and extending its effective date through June 30, 2008.
9. At all material times, based on Section 9(a) of the Act, the Union has been the
exclusive collective-bargaining representative of the employees in the Unit.
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10. On or about August 15, 2008, the Respondent closed its facility.
11. The subject of closing the facility relates to wages, hours and other terms
and conditions of employment and is a mandatory subject for the purpose of collective
bargaining.
12. The Respondent closed the facility without prior notice to the Union and
without affording the Union an opportunity to bargain with respect to the effects of the
facility’s closing.
13. By the conduct described above in paragraphs 10 through 12, the
Respondent has failed and refused to bargain collectively and in good faith with the
Union as the exclusive collective-bargaining representative of the employees in 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 the Respondent, described above, affect
commerce within the meaning of Section 2(6) and (7) of the Act.
II. The Remedy
Having determined that the Respondent has violated the Act, I shall recommend
the Respondent be ordered to bargain with the Union about the closing of its facility.
Additionally, in accordance with Transmarine Navigation Corp., 170 NLRB 389 (1968), I
shall recommend that the Respondent make whole the employees for losses suffered
as a result of the violation by paying those employees, for a period of not less than two
weeks, from 5 days after the date of the Board’s Decision until the earliest of the
following conditions: (1) the date the Respondent bargains for agreement with the Union
on the subject pertaining to the effect of the facility’s closing; (2) a bona fide impasse in
bargaining; (3) the failure of the Union to request bargaining within 5 days of the
Decision in this case, or to commence negotiations within 5 days of the Respondent’s
notice of its desire to bargain with the Union; or (4) the subsequent failure of the Union
to bargain in good faith; but in no event shall the sum paid to any of these employees
exceed the amount he or she would have earned as wages from August 15, 2008, the
date on which the Respondent closed the facility, to the time he or she secured
equivalent employment elsewhere, provided however, that in no event shall this sum be
less than these employees would have earned for a 2-week period at the rate of their
normal wages when last in the Respondent’s employ.
To the extent that the employees in the Unit suffered any loss of earnings, I shall
recommend that they be made whole, for any loss of earnings and other benefits,
computed on a quarterly basis from the date of their layoffs, less any net interim
earnings, as prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). In this respect, I
reject the General Counsel’s contention that interest on any monetary compensation be
computed on a compounded quarterly basis. That is not the current law.
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On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended 1
ORDER
The Respondent, Food Resources Inc., d/b/a Eastern Meats, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Refusing to bargain with United Food and Commercial Workers Union, Local
342, AFL-CIO, with respect to the closing of its facility.
(b) In any like or related manner interfere with, restrain or coerce employees in
the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Pay the employees in the bargaining unit, with interest, their normal wages for
the period set forth in this Decision.
(b) Upon request, bargain collectively with the United Food and Commercial
Workers Union, Local 342, AFL-CIO, with respect to the effect on the bargaining unit
employees of its decision to close its facility and reduce to writing any agreement
reached as a result of such bargaining.
(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 any
electronic copy of such records if stored 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, duplicate and mail, at its own
expense, to all current employees and former employees employed by the Respondents
at any time since August 15, 2008, a copy of the attached notice marked “Appendix.” 2

1 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.
2 If this Order is enforced by a Judgment of the 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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Copies of the notice, on forms provided by the Regional Director for Region 29, shall be
signed by the Respondent’s authorized representative.
(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., December 8, 2009.
_____________________
Raymond P. Green
Administrative Law Judge
JD(NY)–03–09
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT refuse to bargain with United Food and Commercial Workers Union, Local 342,
AFL-CIO, with respect to the closing of our facility
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the
rights guaranteed to them by Section 7 of the Act.
WE WILL upon request, bargain collectively with the United Food and Commercial Workers
Union, Local 342, AFL-CIO, with respect to the effect on the bargaining unit employees of its
decision to close its facility and reduce to writing any agreement reached as a result of such
bargaining.
WE WILL make whole our employees in the manner set forth in the Decision.
FOOD RESOURCES INC. d/b/a EASTERN MEATS
(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.
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