Asher Candy, Inc.

National Labor Relations Board - Board Decisions

Feb 19, 2009

353 N.L.R.B. 959 (N.L.R.B. 2009)

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 BOARD960
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