Asher Candy, Inc.

ASHER CANDY, INC. 353 NLRB No. 95 959 Asher Candy, Inc. and Sherwood Brands, Inc. LLC, a single employer and Local 102, Bakery, Con- fectionary, Tobacco Workers and Grain Millers International Union, AFL–CIO. Case 29–CA– 26761 February 19, 2009 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER On June 18, 2008, Administrative Law Judge Steven Davis issued the attached supplemental decision. The Respondents filed exceptions. The Board has considered the supplemental decision and the record in light of the exceptions and has decided to affirm the judge’s rulings, findings, and conclusions1 and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the sup- plemental decision of the administrative law judge and orders that the Respondents, Asher Candy, Inc. and Sherwood Brands, Inc. LLC, a Single Employer, New Hyde Park, New York, and Rockville, Maryland, their officers, agents, successors, and assigns, shall make whole the employees as set forth in appendices A, B, and C of the administrative law judge’s recommended Order and in the amounts set forth there, plus interest accrued to the date of such payment, minus the tax withholdings required by Federal, State, and local laws. 1 The Respondents’ request for a new hearing or to reopen the record is denied. The Respondents did not appear at the hearing in this proceeding and the General Counsel moved for default judgment. At the hearing, the judge granted “summary judgment.” We adopt the judge’s finding in his supplemental decision that no evidence has been presented by the Respondents to refute any of the allegations in the compliance specifi- cation. Although the General Counsel on May 14, 2008, extended the deadline for filing an answer to May 21, 2008, and the Respondents filed an answer to the specification by letter dated May 19, 2008, that answer does not specifically state the basis for any disagreement with most of the calculations in the specification, pursuant to Sec. 102.56 of the Board’s Rules and Regulations. In any event, as they did not ap- pear at the hearing, the Respondents did not establish that the backpay or severance pay amounts set forth in the specification were inconsis- tent with terms of the governing collective-bargaining agreement, nor did they otherwise present evidence supporting any defenses that the amounts set forth in the specification are inaccurate in any respect. Accordingly, we adopt the judge’s Order. 2 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 Kir- sanow 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. Nancy Lipin, Esq., for the General Counsel. Ray Aquilino, President, of Local 102. SUPPLEMENTAL DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. On October 24, 2006, the Board issued its Decision, 348 NLRB 993 (2006), in which it ordered Asher Candy, Inc. and Sherwood Brands, Inc., LLC, a single employer (Respondents) to (a) on request, bar- gain in good faith with the Union about the effects of their de- cision to lay off their employees and close Respondent Asher Candy’s facility, (b) pay backpay to the laid-off employees, and (c) make whole their employees for their failure to pay sever- ance and vacation pay consistent with the terms established by the Union’s most recent collective-bargaining agreement with Respondent Asher Candy. The only issue before me is the Respondents’ obligation to pay backpay and severance pay. On November 27, 2007, the United States Court of Appeals for the District of Columbia Circuit entered a judgment (06- 1368) enforcing in full the Board’s Decision and Order. On March 28, 2008,1 a compliance specification and notice of hearing was issued directing that a hearing be held on May 21, later postponed to May 28. On April 15, Uziel Frydman, the Respondents’ president, requested that the hearing be post- poned to late July because of his unavailability. Attached to the request was Frydman’s detailed itinerary listing international business commitments on various dates from April 22 to mid- July. However, his schedule did not list any obligations for the period May 29 through June 14. Accordingly, on April 24, the Regional Office postponed this hearing to June 4, and extended, to May 12, the Respondents’ time to file an answer to the specification. On June 1, 5 weeks after the June 4 date was set and 3 days before the scheduled hearing, Frydman requested a postpone- ment to July 21 because (a) his request for 46 subpoenas had not been complied with by the Regional Office, (b) Human Resources Director Vargulish left on her “summer planned vacation” on May 30, and would not return until June 30, (c) he needed additional time to file an answer to the specification, and (d) he will be on vacation in Israel beginning June 14. Counsel for the General Counsel filed an opposition to the postponement request, joined by the Charging Party. On June 3, Judge Joel Biblowitz faxed an Order denying the request and directing that the hearing proceed on June 4. The fax confirma- tion notice was received in evidence which stated that it was received by the Respondents. The hearing was held, as scheduled, on June 4. At the hear- ing, counsel for the General Counsel stated that she called the Respondents that day and spoke to Frydman who told her that he would not be present at the hearing, but that he intended to appeal Judge Biblowitz’ Order and also assert other “irregulari- ties” by the Regional Office. No appearance at the hearing was made by the Respondents. At the hearing counsel for the Gen- eral Counsel moved for a default judgment on the ground that the Respondents had not filed an answer to the specification. 1 All dates hereafter are in 2008, unless otherwise stated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 960 The Request for Postponement I affirm Judge Biblowitz’ denial of the Respondents’ request for postponement. First, the Respondents claim that 46 subpoenas they re- quested were not received. Evidence received at the hearing establishes that the 46 subpoenas were sent by the Regional Office on May 22 by FedEx. Delivery was attempted at 11:10 a.m. on May 23, but according to a FedEx document the “cus- tomer was not available or business closed.” Indeed, Frydman asserts in his June 1 letter that the package “came after I left to a meeting out of the office.” [sic] Clearly, the subpoenas were delivered during business hours and someone should have been present to accept them. Moreover, another delivery was at- tempted at 11:26 a.m. on May 27, but according to a letter from FedEx “delivery could not be completed as the consignee re- fused to accept the parcel.”2 Clearly, the failure to receive the subpoenas, assuming that is a valid ground for postponement, was the fault of the Respondents. It should be noted that on May 14, counsel for the General Counsel sent the Respondents 15 subpoenas by regular mail. Those subpoenas, sent to the Respondents’ correct address, were not returned by the Postal Service. Respondents denied receiving them. Second, the fact that Human Resources Director Vargulish left on a “planned vacation” on May 30 is not a valid reason for the request. The June 4 hearing date was set on April 24, nearly 5 weeks before Vargulish left. Clearly, if this was in- deed a “planned” vacation her departure date would have been known to the Respondents on April 24, and either her vacation could have been rescheduled, or a postponement request, on that ground, could have been made at that time. Third, the fact that the Respondents needed additional time to file their answer is not a ground to postpone the hearing. The original date for filing an answer was April 18. That date was extended to May 12. Whether the papers subsequently filed constituted a sufficient answer will be discussed below. Finally, the June 4 hearing date would not have interfered with Frydman’s vacation beginning on June 14. Accordingly, I find that the request for postponement is en- tirely devoid of merit and was properly denied. The Motion for Default Judgment Counsel for the General Counsel maintains that no answer was filed by the Respondents, and at the hearing moved for a default judgment on that ground. The answer was originally due on April 18. The time for filing an answer was thereafter extended to May 12. She advised the Respondents, in writing, that if no answer was filed, she would request summary judg- ment at the June 4 hearing. By letters dated May 8 and 21, the Respondents requested the issuance of subpoenas. The May 8 letter arguably raised a 2 Following the hearing, in a letter to Judge Biblowitz dated June 5, Frydman stated that “I was not in the office until the afternoon of May 27, and the clerk at the office who was asked to sign the envelope re- fused correctly to do so because the FedEx envelope was not hear marked to SHERWOOD but to me personally and no signature was clearly shown on the envelop as a requirement to accept it.” [sic] The letter has been included in the evidence file as GC Exh. 6. contractual defense to the severance pay part of the specifica- tion. It states that, according to the contract, employees “were not entitled to any severance if they find and or move to an- other job. Under this contract provision Asher/Sherwood are entitled to find out if the Asher employees were employed after termination by Asher. The above-requested subpoenas will be part of the discovery that Sherwood plan to use to discover all facts re the employment of Asher ex-employees after their ter- mination.” [sic] In fact, the contract states as follows: In the event the Employer ceases to do business as a result of which its employees lose employment in the industry, or in the event of removal of the plant by the Employer to a point beyond commuting distance for a majority of the employees of such plant, severance pay in accordance with the following schedule shall be paid to those employees in the employ of the Employer who have completed the periods of employ- ment with the Employer prescribed in the following schedule. The Board found that after Respondent Asher closed its New Hyde Park, New York plant on October 29, 2004, “the candy canes formerly manufactured by Respondent Asher are now manufactured at Respondent Sherwood’s facilities in Brazil.” The Board also found that Respondents Asher and Sherwood are a single employer. Supra at 995–996. The specification alleges that pursuant to the parties’ con- tract, employees were entitled to severance pay following the closure of the plant. The Board’s Decision directed that the Respondents make their employees whole for their failure to pay severance pay “consistent with the terms established by the Union’s most recent collective-bargaining agreement with Re- spondent Asher Candy. . . .” Supra at 993. It is the General Counsel’s burden to prove gross backpay. The specification sets forth the method of calculation and the calculations for the amounts sought for severance pay, and for backpay pursuant to Transmarine Navigation Corp.,170 NLRB 389 (1968). At the hearing, counsel for the General Counsel stated that all the computations as to severance pay were made consistent with the terms established by the Union’s most re- cent collective-bargaining agreement with Respondent Asher. The specification properly sets forth the backpay period. The calculations also properly state the manner in which severance pay was calculated—multiplying the number of severance weeks each discriminatee was eligible to receive pursuant to the contract by their weekly wage rates which were calculated on the basis of a 40-hour week multiplied by the applicable hourly wage rate. Section 102.56 of the Board’s Rules and Regulations re- quires that as to all matters within the knowledge of the Re- spondents, including the various factors entering into the com- putation of gross backpay, the answer shall specifically state the basis for any disagreement, setting forth the Respondents’ position as to the applicable premises and furnishing the appro- priate supporting figures. The Respondents did not file an answer as to any of the specification’s specific computations concerning gross back- pay, including the backpay period, the employees’ dates of hire and termination, years of employment with the Respondents, ASHER CANDY, INC. 961 their hourly wage rate, weekly pay, the number of severance weeks they were entitled to as set forth in the contract based on their years of employment, or the precise amounts of backpay and severance pay owed to them. Accordingly, all the gross backpay calculations are undenied, and they are deemed to be true. Section 102.56. According to the contract, the employees were entitled to severance pay if either they lost employment in the industry or the plant was removed beyond their commuting distance. It is the Respondents’ burden to prove deductions to backpay. Mas- tro Plastics, 136 NLRB 1342, 1346 (1962). Accordingly, it is their burden to prove, according to the contract, that the dis- criminatees are not entitled to contractual severance pay be- cause they continued to be employed in the industry and that the plant was not removed beyond the employees’ commuting distance. The Respondents recognized that they had this bur- den of proof by requesting subpoenas in order to examine re- cords and question their former employees as to jobs they held after the plant closed. However, it appears that, had the Re- spondents defended this case, it would have been unlikely that they could have proven that their relocated facility in Brazil was within its New York-based employees’ commuting dis- tance. Inasmuch as the Respondents did not appear at the hearing to present any evidence as to their defense, I find and conclude that they have not met their burden of proving that the backpay or severance pay amounts were inconsistent with the terms of the contract or that they were inaccurate in any respect. Ac- cordingly, this alleged defense has no merit and it is rejected. Similarly, the Respondents’ May 21 letter states that four employees quit in June 2004, and are not entitled to backpay or severance pay. The letter does not identify the four employees or offer any other evidence of their alleged resignations, and since the Respondents did not appear at the hearing, no such evidence was presented there. Accordingly, the Respondents have not presented any evidence to support this alleged de- fense, and it is rejected. Conclusions No sufficient answer having been filed to any of the compu- tations set forth in the compliance specification, and no evi- dence having been presented by the Respondents at the hearing to refute any of the allegations in the specification, all such allegations are deemed to be admitted to be true and are hereby found to be true. The Respondents shall be obligated to pay to the employees the amounts set forth in appendices A, B, and C of the compliance specification, attached, with interest. Based on the above, I issue the following recommended3 ORDER The Respondents, Asher Candy, Inc. and Sherwood Brands, Inc., LLC, a single employer, New Hyde Park, New York, and Rockville, Maryland, their officers, agents, successors, and assigns, shall make whole the employees set forth in the at- tached appendices A, B, and C, and in the amounts set forth there, plus interest accrued to the date of such payment, minus the tax withholdings required by Federal, State, and local laws. 3 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 pur- poses. Appendix A Asher Candy, Inc.: Years of Service/Severance Weeks Last Name First Name Date of Hire Date of Term Employment Years Met Severance Weeks Adriem Marise 06/16/1975 10/28/2004 20 15 Arriola Juan 04/24/1978 10/28/2004 20 15 Arriola Maria 01/01/1988 10/28/2004 16 12 Arteaga Jose 07/26/1984 10/21/2004 20 15 Arteaga Rosinda 03/14/1994 10/21/2004 10 10 Benitez Concepcion 02/27/1995 10/12/2004 9 6 Calixte Jean 03/13/1998 10/28/2004 6 3 Carbajal Yolanda 05/10/1993 10/21/2004 11 10 Castillo Custudio 08/19/1991 10/21/2004 14 10 Concepcion Gloria 01/13/1994 10/21/2004 10 10 Debe Emanette 03/29/1993 10/21/2004 11 10 Debe Ruben 02/24/1992 10/12/2004 12 10 Duperval Francoer 07/03/1996 10/12/2004 8 6 Emmanuel Mimose 07/20/1995 10/12/2004 9 6 Estrada Angela 03/29/1993 10/21/2004 11 10 Fleurissaint Jean 02/25/1976 10/28/2004 20 15 Flores Maria 05/18/1995 10/12/2004 9 6 Gomez Helen 10/27/1988 10/21/2004 15 12 Gomez Maria 03/12/1992 10/21/2004 12 10 Gonzalez Maribel 05/11/1993 10/21/2004 11 10 Guevara Fidel 08/16/1989 10/21/2004 15 12 962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Guevara Juana 07/27/1989 10/28/2004 15 12 Jennings Frederick 05/09/1988 10/21/2004 16 12 Johnson Susan 06/09/1975 10/28/2004 20 15 Johnson Timothy 06/20/1995 10/12/2004 9 6 Martinez Rosa 11/19/1990 10/28/2004 13 10 Miranda Reyna 10/25/1988 10/28/2004 16 12 Morgan Donald 06/18/1984 02/02/2005 20 15 Myrthil Jeanina 07/18/1995 10/12/2004 9 6 Oliver Anthony 01/07/1997 10/21/2004 7 3 Ortiz Marcos 04/05/1978 10/28/2004 20 15 Perez Olivia 06/21/1984 10/28/2004 20 15 Pierre Gerard 05/20/1974 01/11/2005 20 15 Quintanilla Ana 07/17/1995 10/12/2004 9 6 Regina Francesco 08/24/1994 10/28/2004 10 10 Rosa Marinela 09/24/1990 10/21/2004 14 10 Salmeron Maria 03/29/1993 10/21/2004 11 10 Shiwnarain Puran 11/25/1985 10/12/2004 18 12 Stevens Angela 03/31/1981 10/28/2004 20 15 Strachan David 01/29/1980 01/31/2005 20 15 Tummings John 02/24/1975 01/31/2005 20 15 Ventura Sylvia 05/17/1995 10/12/2004 9 6 Waldron Kenmore 04/26/1971 02/02/2005 20 15 Washington Mae 06/30/1975 10/28/2004 20 15 Watson Brenda 08/15/1966 10/28/2004 20 15 Williams Merrell 02/10/1982 10/26/2004 20 15 Appendix B Asher Candy, Inc.: Hourly Rates and Weekly Pay Last Name First Name Hourly Rate Weekly Pay Adriem Marise $ 14.26 $ 570.40 Arriola Juan 15.46 618.40 Arriola Maria 10.36 414.40 Arteaga Jose 13.13 525.20 Arteaga Rosinda 7.65 306.00 Benitez Concepcion 7.50 300.00 Calixte Jean 7.85 314.00 Carbajal Yolanda 7.80 312.00 Castillo Custudio 9.40 376.00 Concepcion Gloria 7.60 304.00 Debe Emanette 7.80 312.00 Debe Ruben 8.85 354.00 Duperval Francoer 7.10 284.00 Emmanuel Mimose 7.50 300.00 Estrada Angela 7.80 312.00 Fleurissaint Jean 15.20 608.00 Flores Maria 7.50 300.00 Gomez Helen 9.80 392.00 Gomez Maria 7.80 312.00 Gonzalez Maribel 7.80 312.00 Guevara Fidel 10.30 412.00 Guevara Juana 9.30 372.00 Jennings Frederick 11.55 462.00 Johnson Susan 14.01 560.40 Johnson Timothy 9.60 384.00 Martinez Rosa 8.80 352.00 Miranda Reyna 9.80 392.00 Morgan Donald 12.82 512.80 ASHER CANDY, INC. 963 Myrthil Jeanina 7.10 284.00 Oliver Anthony 9.05 362.00 Ortiz Marcos 15.29 611.60 Perez Olivia 11.16 446.40 Pierre Gerard 14.37 574.80 Quintanilla Ana 7.65 306.00 Regina Francesco 9.80 392.00 Rosa Marinela 11.80 472.00 Salmeron Maria 7.80 312.00 Shiwnarain Puran 16.16 646.40 Stevens Angela 12.88 515.20 Strachan David 17.85 714.00 Tummings John 20.71 828.40 Ventura Sylvia 7.50 300.00 Waldron Kenmore 15.97 638.80 Washington Mae 14.01 560.40 Watson Brenda 14.78 591.20 Williams Merrell $ 13.50 $ 540.00 Appendix C Asher Candy, Inc.: Severance and Transmarine Moneys Owed Last Name First Name Hourly Rate Weekly Pay Severance Weeks Severance Payout Transmarine Total Adriem Marise 14.26 570.40 15 $ 8,556.00 $ 1,140.80 $ 9,696.80 Arriola Juan 15.46 618.40 15 9,276.00 1,236.80 10,512.80 Arriola Maria 10.36 414.40 12 4,972.80 828.80 5,801.60 Arteaga Jose 13.13 525.20 15 7,878.00 1,050.40 8,928.40 Arteaga Rosinda 7.65 306.00 10 3,060.00 612.00 3,672.00 Benitez Concepcion 7.50 300.00 6 1,800.00 600.00 2,400.00 Calixte Jean 7.85 314.00 3 942.00 628.00 1,570.00 Carbajal Yolanda 7.80 312.00 10 3,120.00 624.00 3,744.00 Castillo Custudio 9.40 376.00 10 3,760.00 752.00 4,512.00 Concepcion Gloria 7.60 304.00 10 3,040.00 608.00 3,648.00 Debe Emanette 7.80 312.00 10 3,120.00 624.00 3,744.00 Debe Ruben 8.85 354.00 10 3,540.00 708.00 4,248.00 Duperval Francoer 7.10 284.00 6 1,704.00 568.00 2,272.00 Emmanuel Mimose 7.50 300.00 6 1,800.00 600.00 2,400.00 Estrada Angela 7.80 312.00 10 3,120.00 624.00 3,744.00 Fleurissaint Jean 15.20 608.00 15 9,120.00 1,216.00 10,336.00 Flores Maria 7.50 300.00 6 1,800.00 600.00 2,400.00 Gomez Helen 9.80 392.00 12 4,704.00 784.00 5,488.00 Gomez Maria 7.80 312.00 10 3,120,00 624.00 3,744.00 Gonzalez Maribel 7.80 312.00 10 3,120.00 624.00 3,744.00 Guevara Fidel 10.30 412.00 12 4,944.00 824.00 5,768.00 Guevara Juana 9.30 372.00 12 4,464.00 744.00 5,208.00 Jennings Frederick 11.55 462.00 12 5,544.00 924.00 6,468.00 Johnson Susan 14.01 560.40 15 8,406.00 1,120.80 9,526.80 Johnson Timothy 9.60 384.00 6 2,304.00 768.00 3,072.00 Martinez Rosa 8.80 352.00 10 3,520.00 704.00 4,224,00 Miranda Reyna 9.80 392.00 12 4,704.00 784.00 5,488.00 Morgan Donald 12.82 512.80 15 7,692.00 1,025.60 8,717.60 Myrthil Jeanina 7.10 284.00 6 1,704.00 568.00 2,272.00 Oliver Anthony 9.05 362.00 3 1,086.00 724.00 1,810.00 Ortiz Marcos 15.29 611.60 15 9,174.00 1,223.20 10,397.20 Perez Olivia 11.16 446.40 15 6,696.00 892.80 7,588.80 Pierre Gerard 14.37 574.80 15 8,622.00 1,149.60 9,771.60 Quintanilla Ana 7.65 306.00 6 1,836.00 612.00 2,448.00 964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Regina Francesco 9.80 392.00 10 3,920.00 784.00 4,704.00 Rosa Marinela 11.80 472.00 10 4,720.00 944.00 5,664.00 Salmeron Maria 7.80 312.00 10 3,120.00 624.00 3,744.00 Shiwnarain Puran 16.16 646.40 12 7,756.80 1,292.80 9,049.60 Stevens Angela 12.88 515.20 15 7,728.00 1,030.40 8,758.40 Strachan David 17.85 714.00 15 10,710.00 1,428.00 12,138.00 Tummings John 20.71 828.40 15 12,426.00 1,656.80 14,082.80 Ventrua Sylvia 7.50 300.00 6 1,800.00 600.00 2,400.00 Waldron Kenmore 15.97 638.80 15 9,582.00 1,277.60 10,859.60 Washington Mae 14.01 560.40 15 8,406.00 1,120.80 9,526.80 Watson Brenda 14.78 591.20 15 8,868.00 1,182.40 10,050.40 Williams Merrell 13.50 540.00 15 8,100.00 1,080.00 9,180.00 TOTAL $239,385.60 $40,137.60 $279,523.20