Kadouri International Foods, Inc. and HK Marketing Corp., a single employer and Kadouri Internationa

National Labor Relations Board - Administrative Judge Opinions

Dec 15, 2010

29-CA-030342 (N.L.R.B. Dec. 15, 2010)

JD(NY)-50-10
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
KADOURI INTERNATIONAL FOODS, INC.
and Case No. 29-CA-30342
UNITED FOOD AND COMMERCIAL WORKERS,
LOCAL 342
Ashok Bokde, Esq., for the General Counsel
DECISION
Statement of the Case
ELEANOR MACDONALD, Administrative Law Judge: This case was tried in
Brooklyn, New York on November 10, 2010. The Complaint alleges that Respondent, in
violation of Section 8(a)(1) and (5) of the Act, closed its Brooklyn facility, laid off its employees,
and refused to respond to the Union’s request to bargain with respect to its conduct and the
effects of the conduct. Respondent filed an Answer denying that from January 1, 2009 to
January 1, 2010 it purchased and received at its Brooklyn facility goods valued in excess of
$50,000 directly from suppliers located outside the Sate of New York. However, the Answer
admits that Respondent was an employer under the Act “up to the Summer of 2010.” The
Answer further denies that Respondent closed its Brooklyn facility and laid off its employees,
denies that the Union requested bargaining and denies that it has refused to bargain.
Respondent did not appear at the instant hearing and notified Counsel for the General Counsel
by letter and email that it would not have a representative present at the hearing.
On the entire record, including my observation of the demeanor of the witness, and after
considering the brief filed by the General Counsel on December 6, 2010, I make the following
Findings of Fact
I. Jurisdiction
Respondent admits that it is a domestic corporation with its principal office and place of
business located at 234 Starr Street, Brooklyn, New York, where it was engaged in the
wholesale distribution of specialty food products. On March 10, 2008 Respondent executed a
Commerce Stipulation admitting that it annually purchased and received goods and materials
valued in excess of $50,000 directly from suppliers located outside the State of New York, and
admitted that it is engaged in commerce within the meaning of the Act. On July 8, 2008
Respondent filed an Answer in Case No. 29-CA-28864, admitting that it was an employer
engaged in commerce within the meaning of the Act and that United Food and Commercial
Workers, Local 342, is a labor organization within the meaning of the Act. In the instant case,
Respondent has admitted that it was an employer under the Act up to the Summer of 2010, a
time encompassing the alleged unfair labor practices. I find that Respondent is an employer
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engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act and that the
Union is a labor organization within the meaning of Section (5) of the Act.
II. Alleged Unfair Labor Practices
On April 28, 2008 the Union was certified as the exclusive collective-bargaining
representative of Respondent’s employees in the following unit
All full-time and regular part-time truck drivers, production and warehouse employees,
excluding office clerical workers, guards and supervisors as defined in Section 2(11) of
the Act.
On August 22, 2008 Respondent executed a collective-bargaining agreement with the
Union for its warehouse employees and drivers in “any and all of its locations in the State of
New Jersey, the five boroughs of New York and the counties of Nassau and Suffolk in the State
of New York.” The agreement has a term from August 22, 2008 through September 1, 2011.
Jose Lopez is the Union agent assigned to represent the unit employees at
Respondent’s Brooklyn location. Lopez testified that he was informed by an employee that
Respondent was planning to sell or close the Brooklyn location. Lopez asked Respondent’s
owner, Ayal Kadouri, about the rumor, but Kadouri denied that he was selling or closing the
Brooklyn facility.1 Sometime later, a unit employee told Lopez that the employees heard that
they would be going to a facility in the Bronx and that Kadouri would be taken over or would
enter into a partnership. Lopez again confronted Ayal Kadouri. Kadouri told Lopez that he had
engaged in conversations with “Bazzini” but that he was not trying to sell the business.
In June or July 2010 the unit employees informed Lopez that they were being moved to
a Bronx location. Lopez telephoned Ayal Kadouri but was not able to speak to him. Lopez then
visited the place in the Bronx described to him by the unit employees, a plant called Bazzini
Nuts. Lopez met the plant manager and he asked to speak to Ayal Kadouri, but Kadouri was
said not to be available. Lopez went a second time to Bazzini Nuts; although he was not able to
find Ayal Kadouri he was able to speak to one of his brothers. Lopez told this Mr. Kadouri that
he questioned the fact that the business was no longer in Brooklyn and that there had not been
any notice to the Union. Lopez told Mr. Kadouri that the Union wanted a meeting for effects
bargaining.
Lopez testified that he had visited the Brooklyn site and that it was completely closed.
I note that the Complaint alleges that Respondent closed the Brooklyn facility and laid off
its employees. However, Lopez did not testify about any layoffs. Lopez merely testified
generally that “everybody went to work in the Bronx”, but he did not specify whether employees
were laid off for a time before the move.
On July 30, 2010, by certified mail and by fax, Lopez sent a letter to Ayal Kadouri
demanding that Respondent meet to negotiate an “Effect[s] Bargaining Agreement.” Also on
July 30, Lopez wrote to Respondent, demanding arbitration of a grievance defined as, “Failure
to notify the Union of the inten[tion] to shut down the operation and failure to perform effects
bargaining with the Union.”

1 Ayal (Al) Kadouri is admitted by Respondent to be an owner, supervisor and agent of
Respondent.
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The Union has not received any response from Respondent to the request to meet and
negotiate.
It is well established that a Union is entitled to notice that an employer is closing its
facility and that it is entitled to negotiate about the effects of the decision on the employees.
Willamette Tug & Barge Co., 300 NLRB 282 (1990); First National Maintenance Corp. v. NLRB,
452 U.S. 666 (1981). Respondent violated the Act when it failed to provide notice to the Union
that it was closing the Brooklyn facility and moving to the Bronx and when it failed to respond to
the Union’s July 30, 2010 request for effects bargaining.
Conclusions of Law
1. United Food and Commercial Workers, Local 342, is the exclusive collective-
bargaining representative of Respondent’s employees in the following unit
All full-time and regular part-time truck drivers, production and warehouse employees,
excluding office clerical workers, guards and supervisors as defined in Section 2(11) of
the Act.
2. By failing to provide notice to the Union that it was closing the Brooklyn facility and by
failing to respond to the Union’s request for effects bargaining, Respondent violated Section
8(a)(1) and (5) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Complaint seeks a make-whole order pursuant to Transmarine Navigation Corp.,
170 NLRB 389 (1968), the traditional remedy for the failure to bargain over the effects of a plant
closing. The Answer asserts that the General Counsel is not entitled to a Transmarine remedy.
As stated above, there was no testimony about how many unit employees were laid off before
they were moved to the Bronx or whether employees were laid off in any other manner.
However, Respondent presented no evidence to show why a Transmarine remedy is
inappropriate in this case. Therefore, I find that a Transmarine remedy should be ordered but
that its precise application shall be addressed in the compliance stage of the instant proceeding.
The Respondent shall pay its laid off employees backpay at the rate of their normal wages when
last in the Respondent’s employ from 5 days after the date of this Decision and Order until
occurrence of the earliest of the following conditions: (1) the date the Respondent bargains to
agreement with the Union on those subjects pertaining to the effects of the closing of its facility
on its employees; (2) a bona fide impasse in bargaining; (3) the Union’s failure to request
bargaining within 5 business days after receipt of this Decision and Order, or to commence
negotiations within 5 business days after receipt of the Respondent’s notice of its desire to
bargain with the Union; and (4) the Union’s subsequent failure to bargain in good faith, but in no
event shall the sum paid to these employees exceed the amount they would have earned as
wages from the date on which the Respondent closed its Brooklyn facility operations, to the time
they secured equivalent employment elsewhere, or the date on which the Respondent shall
have offered to bargain in good faith, whichever occurs sooner; provided, however, that in no
event shall this sum be less than the employees would have earned for a 2-week period at the
rate of their normal wages when last in the Respondent’s employ. Backpay shall be based on
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earnings which the laid off employees would normally have received during the applicable
period, less any net interim earnings, and shall be computed in accordance with F.W.
Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), plus daily compound interest as prescribed in Kentucky River
Medical Center, 356 NLRB No. 8 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2
ORDER
The Respondent, Kadouri International Foods, Brooklyn, New York, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing to provide notice to the Union that it is closing the Brooklyn facility or any
facility
(b) Refusing to bargain with the Union with respect to the effects of its decision to close
the Brooklyn facility
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Pay to the employees limited back pay, in the manner set forth in the Remedy
section of the Decision.
(b) On request, bargain collectively with the Union with respect to the effects on the unit
employees of its decision to close its Brooklyn facility.
(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 an 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, post at its facility in Bronx, New York,
copies of the attached notice marked “Appendix”3 in both English and Spanish. Copies of the

2 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.
3 If this Order is enforced by a judgment of a 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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notice, on forms provided by the Regional Director for Region 29, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In addition to physical
posting of paper notices, notices shall be distributed electronically, such as as by email, posting
on an intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. The Respondent shall duplicate and mail, at
is own expense, a copy of the notice to all current employees and former employees employed
by the Respondent at its Brooklyn facility at any time since June 1, 2010.
(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 15, 2010.
____________________
Eleanor MacDonald
Administrative Law Judge
JD(NY)-50-10
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 Federal labor law and has ordered us to post
and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT fail to provide notice to United Food and commercial Workers, Local 342, that we are closing a
facility.
WE WILL NOT refuse to bargain with the Union with respect to the effects on our employees in the following
unit of our decision to close the Brooklyn facility
All full-time and regular part-time truck drivers, production and warehouse employees, excluding office
clerical workers, guards and supervisors as defined in Section 2(11) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL pay to the unit employees limited backpay in the manner set forth in the Board’s decision.
WE WILL on request bargain with the Union with respect to the effects on our employees of our decision to
close the Brooklyn facility.
KADOURI INTERNATIONAL FOODS
(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.
Two MetroTech Center (North), Jay Street and Myrtle Avenue, Suite 5100
Brooklyn, New York 11201-3838
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.