NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Asher Candy, Inc. and Sherwood Brands, Inc. LLC, a Single Employer and Local 102, Bakery, Confectionary, 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 supplemental 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.

Dated, Washington, D.C. February 19, 2009

______________________________________

Wilma B. Liebman, Chairman

______________________________________

Peter C. Schaumber, Member

(seal) National Labor Relations Board

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, bargain in good faith with the Union about the effects of their decision 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 severance 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 postponed 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 postponement 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 confirmation 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 hearing, 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 “irregularities” by the Regional Office. No appearance at the hearing was made by the Respondents. At the hearing counsel for the General Counsel moved for a default judgment on the ground that the Respondents had not filed an answer to the specification.

The Request for Postponement

I affirm Judge Biblowitz’ denial of the Respondents’ request for postponement.

First, the Respondents claim that 46 subpoenas they requested 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 “customer 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 attempted at 11:26 a.m. on May 27, but according to a letter from FedEx “delivery could not be completed as the consignee refused 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 indeed 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 entirely 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 judgment 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 contractual defense to the severance pay part of the specification. It states that, according to the contract, employees “were not entitled to any severance if they find and or move to another 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 termination.” [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 employment 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’ contract, 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 Respondent 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 recent 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 requires that as to all matters within the knowledge of the Respondents, including the various factors entering into the computation 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 appropriate supporting figures.

The Respondents did not file an answer as to any of the specification’s specific computations concerning gross backpay, including the backpay period, the employees’ dates of hire and termination, years of employment with the Respondents, 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. Mastro Plastics, 136 NLRB 1342, 1346 (1962). Accordingly, it is their burden to prove, according to the contract, that the discriminatees are not entitled to contractual severance pay because 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 burden of proof by requesting subpoenas in order to examine records and question their former employees as to jobs they held after the plant closed. However, it appears that, had the Respondents 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 distance.

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. Accordingly, 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 defense, and it is rejected.

Conclusions

No sufficient answer having been filed to any of the computations set forth in the compliance specification, and no evidence 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 hereto, 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 attached 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.

Dated, Washington, D.C. June 18, 2008

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
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
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
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

---

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 specification. 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 appear at the hearing, the Respondents did not establish that the backpay or severance pay amounts set forth in the specification were inconsistent 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 Kirsanow 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.

[1] All dates hereafter are in 2008, unless otherwise stated.

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 refused 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.

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 purposes.