Asher Candy, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 18, 2008

29-CA-026761 (N.L.R.B. Jun. 18, 2008)

JD(NY)–21–08
New Hyde Park, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ASHER CANDY, INC. and SHERWOOD
BRANDS, INC. LLC, A Single Employer
and Case No. 29-CA-26761
LOCAL 102, BAKERY, CONFECTIONARY,
TOBACCO WORKERS AND GRAIN MILLERS
INTERNATIONAL UNION, AFL-CIO
Nancy Lipin, Esq., Brooklyn, NY, for the General Counsel.
Ray Aquilino, President, Local 102.
SUPPLEMENTAL DECISION
Statement of the Case
STEVEN DAVIS, Administrative Law Judge: On October 24, 2006, the Board issued
its Decision, 348 NLRB No. 60 (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, five weeks after the June 4 date was set and three 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

1 All dates hereafter are in 2008 unless otherwise stated.
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(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 five 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

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 Exhibit 6.
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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 May 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, NY 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. Slip op. at 3, 4.
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….” Slip op. at 1.
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 –
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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.
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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, NY, 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.
____________________
Steven Davis
Administrative Law Judge

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.
JD(NY)–21–08
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 6/16/1975 10/28/2004 20 15
Arriola Juan 4/24/1978 10/28/2004 20 15
Arriola Maria 1/1/1988 10/28/2004 16 12
Arteaga Jose 7/26/1984 10/21/2004 20 15
Arteaga Rosinda 3/14/1994 10/21/2004 10 10
Benitez Concepcion 2/27/1995 10/12/2004 9 6
Calixte Jean 3/13/1998 10/28/2004 6 3
Carbajal Yolanda 5/10/1993 10/21/2004 11 10
Castillo Custudio 8/19/1991 10/21/2004 14 10
Concepcion Gloria 1/13/1994 10/21/2004 10 10
Debe Emanette 3/29/1993 10/21/2004 11 10
Debe Ruben 2/24/1992 10/12/2004 12 10
Duperval Francoer 7/3/1996 10/12/2004 8 6
Emmanuel Mimose 7/20/1995 10/12/2004 9 6
Estrada Angela 3/29/1993 10/21/2004 11 10
Fleurissaint Jean 2/25/1976 10/28/2004 20 15
Flores Maria 5/18/1995 10/12/2004 9 6
Gomez Helen 10/27/1988 10/21/2004 15 12
Gomez Maria 3/12/1992 10/21/2004 12 10
Gonzalez Maribel 5/11/1993 10/21/2004 11 10
Guevara Fidel 8/16/1989 1021/2004 15 12
Guevara Juana 7/27/1989 10/28/2004 15 12
Jennings Frederick 5/9/1988 10/21/2004 16 12
Johnson Susan 6/9/1975 10/28/2004 20 15
Johnson Timothy 6/20/1995 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 6/18/1984 2/2/2005 20 15
Myrthil Jeanina 7/18/1995 10/12/2004 9 6
Oliver Anthony 1/7/1997 10/21/2004 7 3
Ortiz Marcos 4/5/1978 10/28/2004 20 15
Perez Olivia 6/21/1984 10/28/2004 20 15
Pierre Gerard 5/20/1974 1/11/2005 20 15
Quintanilla Ana 7/17/1995 10/12/2004 9 6
Regina Francesco 8/24/1994 10/28/2004 10 10
Rosa Marinela 9/24/1990 10/21/2004 14 10
Salmeron Maria 3/29/1993 10/21/2004 11 10
Shiwnarain Puran 11/25/1985 10/12/2004 18 12
Stevens Angela 3/31/1981 10/28/2004 20 15
Strachan David 1/29/1980 1/31/2005 20 15
Tummings John 2/24/1975 1/31/2005 20 15
Ventura Sylvia 5/17/1995 10/12/2004 9 6
Waldron Kenmore 4/26/1971 2/2/2005 20 15
Washington Mae 6/30/1975 10/28/2004 20 15
Watson Brenda 8/15/1966 10/28/2004 20 15
Williams Merrell 2/10/1982 10/26/2004 20 15
JD(NY)–21–08
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
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Appendix C
Asher Candy, Inc.: Severance and Transmarine Monies 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