Karmal Corp.

National Labor Relations Board - Administrative Judge Opinions

Sep 23, 2008

29-CA-028448 (N.L.R.B. Sep. 23, 2008)

JD(NY)-37-08
Queens, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
KAMAL CORP., JABER FOOD CORP.,
CORO FOOD CORP., LOREEN FOOD
CORP., NADINE FOOD CORP., CRESCENT
FOOD CORP., ZIAD FOOD CORP., 89-02
FOOD CORP., 75-07 FOOD CORP., and
130-10 FOOD CORP., d/b/a TRADE FAIR
SUPERMARKETS
and Case No. 29-CA-28448

LOCAL 338, RETAIL, WHOLESALE and
DEPARTMENT STORE UNION/UNITED
FOOD and COMMERCIAL WORKERS
DECISION
Tabitha Boerschinger and Annie Hsu, Esqs.,
Brooklyn, NY, for the General Counsel.
Eugene Friedman, William Anspach and Elise Feldman, Esqs.
(Friedman & Wolf, Esqs.), New York, NY, for the Charging Party.
Frank Graziadei, Esq., New York, NY, and Alan B. Pearl, Esq., Syosset, NY,
for the Respondents.
Statement of the Case
STEVEN DAVIS, Administrative Law Judge: Based on a charge and a first amended
charge filed in Case No. 29-CA-28448 on August 15 and December 5, 2007 by Local 338,
Retail, Wholesale and Department Store Union/United Food and Commercial Workers (Union),
a consolidated, amended complaint was issued on January 11, 2008 against Kamal Corp.,
Jaber Food Corp., Coro Food Corp., Loreen Food Corp., Nadine Food Corp., Crescent Food
Corp., Ziad Food Corp., 89-02 Food Corp., 75-07 Food Corp., and 130-10 Food Corp., d/b/a
Trade Fair Supermarkets (Respondent, Employer or Trade Fair).1
The complaint alleges that since on or about February 15, 2007, the Respondent failed
to apply the terms of its collective-bargaining agreement with the Union to employees employed
in the collective-bargaining unit who were not members of the Union, because they were not
members of the Union, in violation of Section 8(a)(1) and (3) of the Act. The Respondent’s
answer and amended answers denied the material allegations of the complaint and set forth
certain affirmative defenses which will be discussed below. On April 8, 10, 11, 23 and 30, 2008,
I heard this case in Brooklyn, New York.

1Certain other allegations of the complaint were settled and withdrawn based on settlement
agreements reached after the hearing opened, and are thus not before me. Those allegations
are set forth in charges filed in Case Nos. 29-CA-28552, 29-CA-28553, 29-CA-28654, 29-CA-
28673, 29-CA-28686, 29-CB-13601, and certain parts of 29-CA-28448.
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On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by all parties, I make the following:
Findings of Fact
I. Jurisdiction
The Respondent, having its principal office and place of business at 30-12 30th Avenue,
Astoria, New York, has been engaged in the retail distribution of products within the food
industry. At all material times the Respondent has owned and operated 10 separate
supermarkets in the borough of Queens, New York as set forth in the complaint, each of which
is a domestic corporation, with all of them doing business as Trade Fair Supermarkets. During
the past year, the Respondent derived gross revenues valued in excess of $500,000, and
purchased and received at its facilities goods and materials valued in excess of $5,000 directly
from suppliers located outside New York State. The answer admits and I find that the
Respondent has been an employer 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
2(5) of the Act.
II. The Alleged Unfair Labor Practices
A. Background
The Union has had a collective-bargaining relationship with the Respondent for at least
20 years. Its latest contract ran from July 17, 2002 to October 4, 2006. The contract’s unit
description is as follows:
This agreement covers, and the term “employee” or “employees”
as herein used includes, all of the Employer’s present and future
full-time and part-time employees (other than store managers,
butchers and meat wrappers) employed in all departments in all of
the present and future supermarkets and stores operated by the
Employer.
The Employer recognizes the Union as the exclusive collective
bargaining representative for all the Employer’s employees
covered by this Agreement.
About 400 workers were employed in the Respondent’s supermarkets. However, only
about 80 were members of the Union. The Respondent applied the contract’s provisions,
including the wages and benefits, only to Union members.
Until 2003, the Respondent considered all the employees employed in its stores as its
own workers, and paid all of them through the ADP payroll service company.
However, in October, 2003, the Respondent entered into an agreement with Payroll
Strategies, Inc. (PSI) pursuant to which PSI paid the non-union workers with checks issued by
PSI. By virtue of this agreement whereby such employees were transferred to the payroll of PSI,
the Respondent believed that its non-union workers became the employees of PSI and were
then leased to the Respondent.
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In late December, 2006, Basic Pay II (BP), which had no clients other than Trade Fair,
replaced PSI, and thereafter it has paid such workers with checks issued by BP. When BP
replaced PSI the employees on PSI’s payroll were transferred to the BP payroll. Accordingly,
the Respondent argues that those workers then became the employees of BP. There was no
communication between those two companies or between the companies and the affected
employees when the transfers were made. The employees affected were not fired by PSI or
hired by BP. When certain employees quit when they were being transferred, BP did not
reassign those workers to a different client. When employees on the payroll of BP quit, BP did
not communicate with them.
These arrangements between the Respondent, PSI and BP had no effect on the
Respondent’s Union member-employees who continued to have their checks issued by ADP.
The General Counsel argues that PSI and BP are simply payroll service companies
while the Respondent contends that it transferred its non-union employees to those companies
which then leased those workers to the Respondent. It therefore argues that when the non-
union employees were transferred to the payrolls of PSI and then BP, those workers ceased
being the employees of the Respondent, and instead became the employees of the two
companies which paid them, PSI and BP.
B. The Employment Relationship
The nature of PSI and BP’s businesses as they affect the Respondent’s non-union
employees, set forth below, and the reason the Respondent entered into agreements with PSI
and BP are not in dispute.
The Respondent maintains the time records for the non-union workers who work in its
stores, and, utilizing payroll software provided by PSI and then BP, Trade Fair inputs the payroll
information including time worked. PSI and BP send an invoice to the Respondent for the
amount of wages, employment taxes, unemployment insurance, and disability insurance to be
paid. 2 PSI and BP then process the weekly payroll and issue checks to the employees, which
are distributed by the Respondent. The Respondent sends a check for the amount of money
paid by the companies to PSI or BP, with an additional sum for their profit.
The non-union workers on the payroll of PSI and then BP performed the identical unit
work of the employees of Trade Fair who were members of the Union. They worked under the
same supervision at the same locations. The only difference was their membership in the Union.
Regarding new employees, the hiring process begins when a prospective employee
visits a Trade Fair store. He completes an application which had formerly been used by Trade
Fair but which is very similar to the one used by PSI and B.3 The employee is interviewed by a
Trade Fair store manager. If there are no openings, the application is retained. If there is an
immediate need for an employee, the Trade Fair manager-interviewer notes the new
employee’s wage rate, shift (part-time or full-time) on the application and signs the application.
The application is then sent to BP which ensures that proper documents are included such as
the I-9 form, W-4 withholding allowance certificate, a copy of the social security card, and an
“acknowledgement of leased employee.” BP applies the rate of pay assigned to the employee
by the Trade Fair supervisor without questioning that rate. BP official John Platt stated that if all

2 However, BP required that Trade Fair itself pay the workers compensation insurance.
3 In fact, a BP label was simply affixed over Trade Fair’s name on the application.
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the papers were in order BP “allows” the candidate to be hired, and he is placed on the payroll.
BP has never had an objection to an employee proposed by Trade Fair and has never rejected
such an employee. Neither PSI nor BP interviews the prospective employee, checks references
or verifies the experience claimed by the applicant.4
Regarding discharge, BP official Platt stated that he was told by the Respondent that two
employees came to work drunk and were asked to leave the store. The Respondent advised BP
that the two workers were no longer needed and BP sent them termination notices. BP did not
conduct a separate investigation of the incidents or challenge Trade Fair’s decision to fire the
two individuals.
The rate of pay and benefits, working conditions, supervision, job location and job duties
of the work force, and their immediate co-workers remained unchanged during the course of
their employment at Trade Fair stores, regardless of whether they were paid by checks bearing
the name of ADP, PSI or BP, and regardless of whether they were members of the Union.
Trade Fair supervisors and managers have complete authority in their stores, including
hiring and firing and setting work schedules for the Union and non-union workers. Requests for
days off or vacations are made to Trade Fair supervisors in the stores with no involvement by
PSI or BP. Neither PSI nor BP had supervisors in the Trade Fair stores.
The contract between the Respondent and PSI describes it as a “payroll services
agreement and further provides that the Respondent agrees to “engage PSI to provide
payrolling services.” The Respondent disputes that PSI is simply a payroll service company and
asserts that it and BP are leasing companies.
The contract between the Respondent and BP, executed on December 12, 2006,
provides that the Respondent will lease certain “assigned” employees from BP “for the purpose
of staffing and operating its stores” and that BP “shall employ certain employees (assigned
employees) to perform work” at the Respondent’s premises. It also provides that “the assigned
employees must be transferred from their current employer to BP by completing the proper
employment application documents and by transferring … wage and payroll information to BP.”
BP official Platt described his company’s services as reviewing job applications,
processing payrolls, and maintaining records. The Respondent agrees to notify BP upon the
termination of any assigned employee. When the contract between the Respondent and BP
terminates or expires all assigned employees of BP working at the Respondent’s facility “shall
immediately and automatically become the sole and exclusive employees of Client or its
designee.” BP may notify those employees that their employment relationship with BP has been
terminated. The Respondent agreed that it will supervise and train the employees, and be
responsible for compliance with federal, state and city laws regarding their employment.
When BP replaced PSI, the employees were asked to sign a form entitled
“acknowledgement of leased employee.” It states that the worker “is an employee of BP, LLC
and will look solely to BP for the payment of my wages and benefits. I further understand that I
will be considered a leased employee of BP and will be working for BP at various Trade Fair
Supermarkets. I further understand that I am not an employee of Trade Fair Supermarkets and

4 The PSI contract states that the Client (Trade Fair) assumes full responsibility for the
recruitment, selection and training of the employees, verification of their skills, and is solely
responsible for their supervision, direction and control.
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am not entitled to any of the benefits that may exist for Trade Fair employees.” BP also asked
employees to sign an I-9 form, a W-4 form, a non-discrimination and non-sexual harassment
form, and an acknowledgement of receipt of Trade-Fair’s program against discrimination and
sexual harassment. Employees Curtis Evans and Carlos Shimabuku refused to sign the form,
Evans because he believed that by signing it he would “erase my identity” as a Trade Fair
worker.
Respondent’s accountant Martin Jacobson testified as to his belief that PSI and BP are
leasing companies which, according to him are the employers of the non-union employees
working in the Trade Fair stores. Jacobson’s conclusion was based on a purely financial
analysis, arguing that the workers are employees of the leasing company because such
company issued its paycheck to the worker and filed payroll tax and unemployment insurance
tax returns.5 He noted that if Trade Fair did not forward the funds to the leasing company, that
company was liable to pay the wages and taxes due. However, as noted above, Trade Fair
supplied all the funds to the “leasing company” for the payment of wages, benefits and taxes.
C. Application of the Union Contract to Union Members
1. The Non-union Employees
The only difference between the Union and non-union workers is their wages and
benefits. The Union workers are covered by the Union contract and receive the wages and
benefits set forth therein. The Union contract is not applied to the non-union workers. As
confirmation of this, employees Evans, Jose Garcia, and Shimabuku stated that they were
employed by Trade Fair for a number of years before they joined the Union. Prior to their joining
they did not receive sick pay, paid holidays, health care, dental, or pension benefits. However,
after they joined the Union they received those benefits.
Union agents Nelson Resto and Jeff Laub stated that when they signed employees into
the Union they were not told by the Respondent that they were not Trade Fair employees or that
they were employees of PSI or BP.6 The Respondent owner Farid Jaber7 testified that if a
leased employee wanted to join the Union the Respondent had no objection to that, and that a
number of workers have done so. As part of that transaction, of course, the new Union member
would then be transferred onto the ADP payroll which was the payroll for the Trade Fair
employees, effectively becoming a Trade Fair employee assuming that he had not been one
before.
In fact, there was testimony that the Union solicited employees to join and that they
joined the Union after their hire. Thus, employees Evans, Garcia and Shimabuku worked for
Trade Fair for a number of years and then became members of the Union at which time the
Union contract was applied to them.
The non-union workers receive the wages and benefits unilaterally determined by Trade
Fair. Jaber testified that the benefits given to the non-union workers were subject to negotiation
and a policy decided on between the leasing company and the Respondent. However, he was
not a party to such negotiation. Martin Jacobson, the Respondent’s accountant, conceded that

5 Jacobson noted, however, that Trade Fair must make Workers Compensation payments
because the State Insurance Fund required it.
6 Resto signed up Martin Bermudes, Curtis Evans, Veronica Gill, and Veronica Valachez.
7 All references to Jaber, hereafter, will be to owner Farid Jaber unless otherwise stated.
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he did not negotiate such benefits. He stated that if PSI questioned the issue of sick pay or
vacations, he informed PSI of Trade Fair’s policy and PSI agreed to those terms. There was no
listing of wages or benefits in the contracts between the Respondent and PSI or BP.
As testified by Union agents Jeff Laub and Nelson Resto and confirmed by Respondent
agent Sheak Ripon, they visited the Trade Fair stores several times each month. They became
aware, as early as 2004 that a substantial number of nonunion workers were employed in the
stores. They informed Union president John Durso of that fact. Durso directed them to sign
them into the Union. Indeed, Durso testified that during the 1998 negotiations he told Jaber that
there were more non-union employees in the store than Union workers.
Resto testified that the Union attempted to examine the Respondent’s payroll records of
all its employees. After an arbitration begun in 2005 and a consent order settling the matter in
2007, the Union was shown the records of the Union members only, and only those from 2003
and 2004. In September, 2005 Resto asked to see the payroll records. He quoted Jaber as
responding “absolutely not, I know what you are up to.”
The collective-bargaining contract between the parties states that Union representatives
“may visit the stores of the Employer at any time.” However, Resto stated that he had difficulty
speaking to Union and non-union employees in the stores, noting that each time he entered a
store a manager would ask that he leave and threaten to call the police if he did not. He recalled
an incident in 2006 when, while speaking to a clerk, Kamal Jaber, the brother of owner Farid
Jaber, grabbed his arm and told him that he could not be in the store. Other clerks reported to
Resto that they could not speak to him because they feared being fired. Resto also testified that
managers followed him and cursed and screamed at him when he visited a store. At times he
was able to speak to Union members but not non-union workers because they were afraid to
speak to him. Union agent Jeff Laub had similar experiences in the period 2004 to 2007.
In an attempt to enroll the non-union workers, Resto organized a group of Union agents
to enter all 10 stores on the same day. At one store, Abraham Jaber, the father of owner Farid
Jaber screamed and cursed at him, demanding that he leave the store or he would call the
police.
John Durso, the Union’s president, served as the business agent for the Trade Fair
stores from about 1997 to 1995. He stated that he was aware, from at least 1986, that a number
of employees working in Trade Fair stores were not Union members. He further stated that
between 2002 and 2006, he was told by his agents that there was a “problem” with the stores
and that employees were receiving “dual paychecks” and they were trying to “get to the bottom
of it.”
2. The Contract Negotiation Sessions
Jaber stated that during the 1995 and 2002 negotiations, he and Durso spoke about the
fact that there were employees working in the Respondent’s stores who were not members of
the Union. However, Jaber said that Durso had “no issue” and “no objection” to the
nonmembership of such employees. Jaber said that Durso understood that this was a “family
business” and that the Respondent was “trying to survive.”
Jaber testified that in the summer of 2002, during the negotiation of the 2002 contract,
Durso told him that a union audit would take place involving all companies under contract with
the Union, and that he (Durso) did “not want to see any non-union” workers on the company
payroll. Rather, he only wanted to see Union members on the payroll.
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Jaber stated that he then discussed the matter with company accountant Martin
Jacobson who proposed putting the non-union workers into a leasing company. Jaber testified
that he told Durso that the company would “look around” for a leasing company and put the non-
union workers into such a company so that they would no longer be employees of Trade Fair.
According to Jaber, Durso did not object, but said “do what you have to do.”
Jacobson was not a party to these discussions but was told by Jaber that Durso was
concerned that the audit would establish that all employees on the Trade Fair payroll “would be
entitled to certain benefits,” and that Durso urged that Jaber “really should find a way to get
them off the Trade Fair payroll.”
Jaber testified that one of the main reasons for the decision to lease employees was that
it was easier for the Respondent’s operation – it did not need to maintain a large payroll staff to
process the salaries of the non-union workers, and that it was necessary for the Respondent “to
survive.” He conceded that “officially” he did not notify Durso of his intent to lease employees
from PSI.
Jacobson testified that it took him about four to five months to find a leasing company,
and then negotiations took place with it. Jacobson did not recommend that the Union be
informed of the leasing agreement because it had nonmembers working for it for many years.
There is no date on the signature page of the PSI contract, but Jaber testified that it was
signed in July, 2003. However, its effective date is October 12, 2003. Jaber stated that although
the Union contract was being negotiated at that time he did not ask that his leasing of
employees be included therein. His view was that the Union contract did not prohibit the leasing
of employees so he believed that he could do so. However, during the 2006 negotiations Jaber
asked for the inclusion of a clause permitting the leasing of workers.
Jaber testified that after the PSI contract was executed, he and Jacobson told Union
agent Resto that the non-union employees were transferred to a leasing company. Resto
denied being told by the Respondent that workers at the Trade Fair stores were on the PSI
payroll or that they were leased. The first PSI payroll was issued in the last week of December,
2003.
Durso testified that during the 1998 contract negotiations he mentioned to Jaber that
there were more employees in Trade Fair stores than were Union members. According to
Durso, that matter was discussed between them “every day” – “every day it was a fight.” Jaber
told him that there was constant turnover and the employees were new hires who were still in
their probationary period and not yet eligible for Union membership.8 Durso stated that he told
Jaber that the non-union workers had to be signed into the Union, but that Union agents could
not find them and that the Union was being denied access to payroll records. Jaber replied that
the workers were only temporary, that he could not “hold onto” workers. In contrast, Jaber
testified that Durso never objected to the fact that there were non-union employees working in
the Trade Fair stores.
Union agent Resto stated that he was not present at the negotiation of the 2002
collective-bargaining agreement, but he was in attendance at the contract signing in July or

8 The contract provides for a 30 day probationary period for full-time workers and 90 days
for part-time employees.
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August, 2002. He stated that the subject of leasing employees was not mentioned. Similarly,
agent Laub stated that he was never told by the Respondent that it was using leased
employees.
Durso negotiated the 2002 contract with Jaber, and concedes that he was told at that
time by Jaber that there were workers who were not members of the Union. Indeed, as set forth
above, Durso admits that in 1998 he mentioned to Jaber that the stores employed more non-
union workers than Union members. Durso admits telling Jaber that there was going to be a
Union audit of all Trade Fair stores, but denies telling him at that time that he had to get the non-
union workers off the Trade Fair payroll. Durso stated that, at the same time, he told his agents
to ensure that all unit employees were signed into the Union. Durso denied being told at any
time by Jaber that he intended to place the non-union workers in a leasing company. Durso
stated that he first heard or discovered the name PSI during the course of the audit, and during
the 2006 contract negotiations.9 Durso told Jaber that he “could not do that” since they “belong
to the Union.”
During the 2006 contract talks, the Respondent made a written proposal that “the Union
agrees that the Employer may continue to utilize leased workers consistent with past practice.”
Durso replied “Out - No It cannot conflict with contract.” Jaber stated that he wanted that clause
in the contract because of the Union’s Trust Fund lawsuit concerning the leased employees. In
contrast, Jacobson testified that the leasing arrangement should be “memorialized” even though
the Union was aware of it for many years.
There was no evidence that the Union filed any grievance, arbitration or charge from
1998 to 2002 alleging that the Respondent had employees who were not members of the Union.
However, the Union’s Trust Funds sued the Respondent concerning pension funds due for the
“leased” employees.
Analysis and Discussion
The complaint alleges that since on or about February 15, 2007, the Respondent failed
to apply the terms of its collective-bargaining agreement to employees employed in the
collective-bargaining unit who were not members of the Union, in violation of Section 8(a)(1)
and (3) of the Act.
The Respondent asserts the following defenses. It first argues that the workers in its
stores who were not Union members were not its employees, but rather were employees of a
leasing company. Second, it argues that the complaint is barred by Section 10(b) of the Act
because (a) the Union was on notice that large numbers of workers were not members of the
Union and (b) the complaint allegation was not supported by a proper charge.
I. The “Leased” Employees
The Respondent’s amended answer asserts that the collective-bargaining agreement did
not “preclude or prohibit” it from subcontracting work from other companies or from hiring or
employing such companies to provide services for Respondent’s supermarkets. That may be

9 There was much testimony concerning Durso’s deposition given during a federal court
proceeding regarding whether he was told, in 2002, that the Respondent was using PSI.
However, the deposition was not clear on this point and I do not rely on the deposition in making
my findings herein.
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true, but the evidence supports a finding that the Respondent’s employees were not leased or
subcontracted, but in fact remained the employees of the Respondent at all times.
The Respondent contends that the non-union employees working at Trade Fair stores
are the employees of the leasing companies, first PSI, and then BP. The only evidence of such
status is the testimony of accountant Jacobson. He testified, without supporting legal or tax
authority, that simply because the workers are on the payroll of the so-called leasing companies
and those companies make various tax payments on the employees’ behalf, they are the
employees of the leasing companies.
Such an argument has no basis in the Act. The employees at issue were and are at all
times unquestionably the employees of Trade Fair.
As set forth above, on a weekly basis Trade Fair sends the names, wages and payroll
information of its non-union employees to PSI and then to its successor BP. Those companies
then sent Trade Fair an invoice for the amount of money payable to the workers. Trade Fair
then sends a check to the “leasing company” which then issues checks to the employees with
the name PSI or later, BP on the check. Thus, Trade Fair completely funded the employees’
payments. The “leasing company” acted only as a conduit for the payments.
As set forth above, new employees are interviewed and hired by Trade Fair. Their
applications are simply sent to the PSI or BP for processing and to put them on the payroll of
those companies. Employees were discharged by Trade Fair with no investigation being made
into the matter by the two companies.
The terms and conditions of employment are set by Trade Fair with no input from PSI or
BP. There was no negotiation between those companies and the Respondent concerning the
employees’ benefits as implied by Jaber. Rather, Jacobson told the companies what Trade Fair
had given them and the companies acquiesced. It did not matter what PSI or BP agreed to in
that respect since the benefits were funded by Trade Fair anyway.
Supervision of the workers was made solely by Trade Fair managers and supervisors
who had daily contact with the employees, gave them their assignments and administered
discipline. No PSI or BP supervisor was stationed in any of the stores. Requests for sick days,
vacations and other forms of time off were made solely to Trade Fair managers.
Notwithstanding the movement of the employees’ names from Trade Fair’s ADP payroll
to PSI and then to BP, or sometimes back to ADP if they joined the Union, the workers were
treated as if they remained the employees of Trade Fair. There was no communication between
the ostensible “new employer” and the worker as to his new boss. Their pay and benefits, job
locations, duties, and immediate co-workers remained the same.
The contract between the Respondent and PSI correctly describes their relationship as a
“payroll services agreement” in which the Respondent engaged PSI to provide “payrolling
services.” The contract between the Respondent and BP, however, states that BP is the
employer of the “assigned” employees and provides for the “transfer” of such workers from
Trade Fair to BP. Such a transfer was effected, according to the contract, simply by the
submission of an employment application, the transfer of wage and payroll information to BP,
and the execution of the “acknowledgement of leased employee form.” This “paper transfer,”
however, cannot change the true employer of the employees, nor does it change the
circumstances of their work. The fact that the contract states that when it expires, the “assigned”
employees immediately and automatically become the employees of Trade Fair is significant in
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that if they were truly the employees of BP, upon expiration of the contract that company would
have laid them off, discharged them or transferred them to other locations.
It is significant that when a BP employee joined the Union, the Respondent transferred
that worker from the BP payroll and placed him on Trade Fair’s payroll. BP had no involvement
in the removal of “its” employee from its payroll to Trade Fair’s. This shows that the employee at
all times was an employee of the Respondent which had the power to remove the worker from
BP’s payroll and place him on the Respondent’s.
BP official Platt correctly stated that his company reviews job applications, processes
payrolls and maintains records. His statement that he “allows” employees to be hired by the
Respondent if all their documentation is in order is nothing more than a payroll service company
would do and is consistent with his characterization of his company as one which reviews
applications. The “acknowledgement” form in which the employee declares that he is an
employee of BP and not of Trade Fair is completely self-serving and cannot change the true fact
that the employees were at all times employees of Trade Fair. Employee Evans refused to sign
it because he recognized it for what it was – a document which he believed would “erase my
identity in the company, because I’ve been there a long time. And I know I’m not a leased
employee. I work for Trade Fair.”
The Board considered a virtually identical arrangement in La Gloria Oil & Gas Co., 337
NLRB 1120, 1122, 1136 (2002). In that case the Board rejected an argument that PSI was a
joint employer with the respondent, finding that the respondent, as here, hired the workers,
determined their work hours and rates of pay, assigned them work, administered discipline, and
reimbursed PSI for the costs of the employees’ compensation. It further found that PSI handled
“solely administrative matters, such as payroll.” In that case the Board reached this conclusion
notwithstanding that, as here, the workers were told that they were the employees of PSI, their
applications bore PSI’s name, and paychecks and W-2 statements were issued on a PSI bank
account. Dilling Mechanical, 338 NLRB 902, 94 (2003).
The Respondent argues that the contract is ambiguous. It contends that the use of the
word “employee” does not cover all the employees employed in its stores. The Respondent
further maintains that inasmuch as the contract does not prohibit leasing or subcontracting, the
term “employee” only covered the employees of the Respondent, not those of PSI or BP.
I disagree. The contract is quite clear. It expressly covers “all the Employer’s …
employees in all departments” except butchers and meat wrappers, and, as in Schorr Stern
Food Corp., 227 NLRB 1650 (1977), the Respondent expressly “recognizes the Union as the
exclusive collective bargaining representative for all the Employer’s employees covered by this
Agreement.” Accordingly, I reject the Respondent’s argument that evidence may be accepted to
vary the terms of the agreement. Even if such evidence was considered, no valid proof has
been adduced that a leasing of employees took place or that these employees were the
employees of any company other than the Respondent.
I therefore conclude that the Respondent’s employees at all times remained its
employees and at no time became the employees of PSI or BP. Having made this finding, I
cannot find that the Union was aware of a “practice” of leasing employees when no valid lease
arrangement was made. In addition, I note that the Union took no action inconsistent with its
belief that the employees working in the Respondent’s stores were employees of Trade Fair,
while at the same time the Employer made no credible claim at any appropriate time in its
relations with the Union that these people were not its employees. Further, the Union could not
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have waived any right to protest their being “leased” by inaction in protesting such status where
their status as employees of Trade Fair remained unchanged.
I also reject the Respondent’s additional argument that it was its “past practice” since
2002 to “subcontract labor” and that alleged practice was “open and notorious and known to the
Union.” The Respondent contends that Section 10(b) of the Act precludes the finding of an
unfair labor practice as to such conduct, and further that the “Board is without authority to alter,
amend or modify the terms and conditions in effect between” the parties.

As I have found above, there has been no valid subcontracting or leasing of employees.
The unit employees of Trade Fair remained the employees of Trade Fair and no other company.
Accordingly, the Respondent had no past practice to subcontract or lease workers.
II. The Failure to Apply the Contract to the Respondent’s Employees
There is no dispute that the Union’s contract with the Respondent has been applied only
to employees who are members of the Union. Thus, employees who are Union members
receive the wages and benefits set forth in the contract. The Respondent does not provide
contractual wages and benefits to its employees who are not members of the Union. They
receive different wages and lesser benefits although they are in the bargaining unit, perform unit
work and are covered by the collective-bargaining contract.
The Respondent concedes that it did not apply the terms of its contract to certain
employees but asserts that those workers were not its employees. As set forth above, I have
found that the “leased” employees were at all times the employees of the Respondent who were
employed in the unit covered by the collective-bargaining agreement.
I therefore find that the Respondent did not apply the contract to those of its employees
who it treated as “leased.” The reason the contract was not applied to those workers is that they
were not members of the Union. This is proven by the fact that when certain “leased” employees
became members of the Union, such as Evans, Garcia and Shimabuku, the contract’s terms
were applied to them.
Where employees are in the bargaining unit, perform unit work and are covered by the
collective-bargaining agreement, the Respondent is obligated to apply the contract terms to
them. Kaufman DeDell Printing, Inc., 251 NLRB 79, 80 (1980). The failure to apply the contract
to all members of the unit violates Section 8(a)(3) of the Act. Vanguard Tours, 300 NRLB 250,
266 (1990).
“The policy of the Act is to insulate employees’ jobs from their organizational rights.”
Radio Officers’ Union v. NLRB, 347 U.S. 17, 40 (1954). “[T]he union being exclusive bargaining
agent for both member and nonmember employees, the employer could not, without violating
Section 8(a)(3), discriminate in wages solely on the basis of such membership even though it
had executed a contract with the union prescribing such action.” 347 U.S. at 47. An employer
violates Section 8(a)(3) of the Act when it discriminates in the wages and benefits received by
employees solely on the basis of union membership because such a practice encourages union
membership by means of discrimination. Radio Officers’ Union at 47; Rockaway News Supply
Co., Inc., 94 NLRB 1056, 94 NLRB 1056, 1059 (1951).
Schorr Stern Food Corp., 227 NLRB 1650 (1977), involving similar facts to this case, is
controlling here. In that case, the parties had a contract which covered “all” the employer’s unit
employees, however it was applied only to those workers who were members of the union. The
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employer there made many of the same arguments the Respondent makes here. In Schorr, the
respondent offered parol evidence in the form of testimony that “from the start” the union was
recognized by it as the representative of its members only and not for all its unit employees, and
that the union-shop provision was not enforced.
The Board first decided that the union-shop provision was enforced, citing a worker who
joined the union. Here, too, the union-shop provision was enforced with regard to those 80
employees who the Respondent concedes are its own and also as to others, such as Evans,
Garcia and Shimabuku who were “employees” of PSI and BP and then joined the Union. In
addition, Union agents were directed by Union officials to sign up all the unit employees.
Accordingly, they regularly and actively sought to speak to non-union workers employed in the
stores and engaged in an organizing effort encompassing all 10 stores. Further, the Union
sought payroll information in order to learn the number and identities of the non-union workers.
The employer in Schorr also argued, as here, that the union never sought wage
increases for employees other than its own members, and that it dealt with the union only with
respect to those employees who were union members. The Board, citing Prestige Bedding, Inc.,
212 NLRB 690, 700 (1974), rejected parol evidence which sought to explain the terms of the
contract where the contract was not ambiguous. Quality Building Contractors, 342 NLRB 429,
430 (2004); F & C Transfer Co., 277 NLRB 591, 596 (1985). The Board noted that evidence of a
“members only” practice is relevant only in representation and refusal to bargain cases, and
cannot “shield a party from liability for unlawful conduct occurring thereunder.” 227 at 1654.
This case is stronger than Schorr because in Schorr the employer originally recognized
and bargained with the union on a “members only” basis. Here, no such practice was
undertaken. The contract covering all employees was entered into long before any “leasing” of
employees occurred.
Here, the non-union employees are in the bargaining unit, perform unit work and are
covered by the collective-bargaining agreement. Accordingly I find that, consistent with the
terms of the contract, the Respondent recognized the Union as the sole collective-bargaining
representative of all its employees in the above-described unit and is legally bound to apply all
the terms and conditions of that contract equally to all unit employees, including those whom it
improperly contends are “leased” employees.
III. The Respondent’s Defenses
The Respondent argues that the Union has waived any right to consider the non-union
employees as part of the unit since the Union was aware of its “practice” of leasing employees
since 2002, and also that the Union was aware or should have been aware of the large number
of employees working in its stores but did nothing to organize them. Accordingly, it argues that
Section 10(b) of the Act precludes a finding of any violation by the Respondent. The
Respondent further contends that the complaint allegation is not supported by a proper charge
and therefore should be barred by Section 10(b).
A. The Section 10(b) Defense
1. Section 10(b) Does Not Apply Because
of the Continuing Nature of the Violation
Section 10(b) of the Act provides that “no complaint shall be issued based upon any
unfair labor practice occurring more than six months prior to the filing of the charge with the
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Board.”
A threshold question is the applicability of Section 10(b) to this case. In Farmingdale Iron
Works, 249 NLRB 98 (1980), enfd. mem. 661 F.2nd 910 (2nd Cir. 1981), the Board held that each
failure during the term of an existing collective-bargaining agreement to pay contractually
required periodic benefit fund payments within the 10(b) period constitutes a separate and
distinct violation of Section 8(a)(1) and (5) of the Act.
The Board distinguishes between a “simple failure to abide by the terms of a collective-
bargaining agreement,” or “material breach violation,” on the one hand, and an “outright
repudiation of the agreement itself,” or “total repudiation” on the other. Vallow Floor Coverings,
Inc., 335 NLRB 20, 20 (2001), citing A&L Underground, 302 NLRB 467, 469 (1991).
Here, the Respondent did not unequivocally repudiate its obligation to abide by the
contract since it made payments on behalf of its workers who were Union members. See
Chemung Contracting Corp., 291 NLRB 773, 774 (1988).
When an employer has not rejected a collective-bargaining agreement in its entirety, but
has instead failed to apply certain of its terms to unit employees, this represents a beach of the
contract’s terms and each successive breach constitutes a separate and distinct unfair labor
practice. Thus, even when a union has clear and unequivocal notice outside the Section 10(b)
period that the respondent is failing to observe the terms of the contract, the complaint is not
time-barred. Instead the 10(b) period serves only as a limitation on the remedy to the six months
prior to the filing of the charge. Farmingdale Iron Works, 249 NLRB 98, 988 (1980), enfd. 661
F.2nd 910 (2nd Cir. 1981).
I find that just as each failure to pay fund benefits constitutes a new violation of Section
8(a)(5), it logically follows that each failure during the term of the agreement to apply the
contract to employees also constitutes a separate and distinct violation of Section 8(a)(3) of the
Act. The same action by the employer, its failure to apply the contract to employees, constitutes
the violation of the Act. This is unlike the case of a discharge of an employee where the date of
the termination triggers the running of the six month 10(b) period. Rather, each failure to apply
the contract to the unit employees constitutes a new violation.
Accordingly, I find that a separate and distinct violation of Section 8(a)(3) occurred
without reference to Section 10(b) each time the Respondent failed to apply the contract to its
non-union employees. Farmingdale Iron Works. Thus, each failure to apply the contract terms to
employees begins a new limitations period and a charge is timely filed with respect to each such
failure without regard to earlier failures to apply the contract terms.
Inasmuch as the charge was filed on August 15, 2007, within six months of the October
6, 2006 expiration of the contract, the charge was timely filed. In Schorr, the unlawful members-
only provisions were still being effectuated and enforced at the time the charge was filed.
Similarly, here, at the time the instant charge was filed, the Respondent continued to effectuate
and enforce its unlawful failure to apply the terms of its contract to its employees who were not
members of the Union. 227 NLRB at 1654.
Further, it is unnecessary to consider when, if ever, the union had clear and unequivocal
notice that the employer had not applied the contract to non-union employees where each such
failure constituted a new violation of the Act. King Manor Care Center, 308 NLRB 884 (1992),
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2. Alternative Finding if Section 10(b) Applies
However, in the event that it is determined that Section 10(b) applies, I will discuss the
issue of whether the Union had notice of the Respondent’s violation within the 10(b) period.
The Board has jurisdiction over a matter when a charge is filed. Section 10(b) serves as
a statute of limitations by limiting the subject of complaints to conduct about which a charge was
filed within six months of the violation. The Board has consistently held that the 10(b) period
does not commence until the charging party has “clear and unequivocal notice of the violation of
the Act.” The Respondent has the burden of showing that the charging party had such notice. A
& L Underground, 302 NLRB 467. 469 (1991).
In Moeller Bros. Body Shop, 306 NLRB 191, 193 (1992), the Board stated that “while a
union is not required to police its contracts aggressively in order to meet the reasonable
diligence standard, it cannot with impunity ignore an employer or a unit … and then rely on its
ignorance of events occurring at the shop to argue that it was not on notice of an employer’s
unilateral changes.”
The Respondent argues that the Union knew or should have known that it was not
applying the contract to a large number of people working in the stores. First, it cites the
testimony of Jaber that Union official Durso advised him that an audit would be undertaken of
the company’s books and he did not want to see any leased employees on the payroll. The
Respondent asserts that Durso encouraged Trade Fair to hide its employees by means of a
leasing arrangement. I cannot credit such testimony. There was uncontroverted evidence that
Durso directed his agents to sign into the Union all employees who were not Union members.
Clearly, if he acquiesced to Jaber’s plan to hide many of the workers he would not have given
such an order. In fact, the Union diligently visited the ten stores regularly, attempted to speak to
workers, distributed literature and organized a simultaneous mass organizing effort at the ten
stores. In fact, it succeeded in signing up at least three employees, Evans, Garcia and
Shimabuku. Such an effort is clearly inconsistent with Durso’s alleged direction that Jaber
remove a large number of employees from Trade Fair’s payroll.
Similarly, I cannot credit Jaber’s testimony that he told the Union’s agents that Trade
Fair was leasing employees. If that was the case, the Union would not have expended its time
and effort in attempting to organize the employees in the store who it allegedly believed were
leased.
Even if Jaber told the Union agents about its “leasing” arrangement, the fact that the
employees were not in fact leased but remained Trade Fair’s workers renders such a
declaration irrelevant. If, for example, the Union’s agents had been told that such workers were
statutory supervisors or independent contractors when they did not have such status, that
assertion had no legal effect. Thus, even if Durso was told that the vast majority of employees
were leased workers such an announcement had no legal effect since they were not, in fact,
leased, but rather remained Trade Fair’s employees.
Apparently, Durso and the Union were aware that the contract was not being applied to
large numbers of workers. Thus, Durso concedes being so aware and in fact he told his agents
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to sign them up.10 However, there was apparently some confusion as to what he believed, or
was led to believe regarding the nature of those workers.
The Board has held that where a “delay in filing is a consequence of conflicting signals
or otherwise ambiguous conduct,” a finding of clear and unequivocal notice is unwarranted. A&
L Underground, 302 NLRB 467, 469 (1991). I find that the Respondent engaged in ambiguous
conduct by acquiescing in the Union’s signing up of certain workers who were purportedly
“leased” employees. Such conduct created conflicting signals that although the Respondent
maintained that the workers were leased and not its employees, once they became Union
members the Respondent placed them on its payroll. In addition, Durso credibly testified that he
was told that the workers were probationary employees and a letter to the Union funds stated
that many employees working in the stores were part of the meat department which is not
covered by the contract. When attempting to learn the true circumstances of the nature of the
workers’ employment by visiting the stores, the Respondent’s managers interfered with Union
agents’ efforts to speak to the workers. Accordingly, although the Union may have possessed
knowledge of possibly unlawful acts, the Respondent has not shown that it had “clear and
unequivocal notice” of such unlawful actions.
The running of the limitation period may also be tolled by acts of fraudulent concealment
on the part of the perpetrator of the alleged unfair labor conduct, In Browne & Sharpe Mfg. Co.,
321 NLRB 924 (1996), the Board stated that it considers the following elements in deciding
whether to toll the limitations period for this reason (a) deliberate concealment has occurred (b)
material facts were the object of the concealment and (c) the injured party was ignorant of those
facts without any fault or want of due diligence on its part.
Fraudulent concealment requires affirmative misstatements about material facts. Avne
Systems, Inc., 331 NLRB 1352, 1353 (2000). A finding could reasonably be made that the
Respondent engaged in the fraudulent concealment of material facts. It sought to hide its
employees in a leasing company and make it appear that they were no longer its workers. I
have found, above, that Union official Durso did not ask or encourage the Respondent to make
such an arrangement. The Respondent made a material misstatement to Durso about the
nature of the “leased” employees, calling them leased when no valid claim could have been
made that they were, in fact, leased. In doing so, the Respondent attempted to conceal their
actual employment by it from the Union and instead deliberately concealed the true facts from
the Union.
Durso testified that it was difficult for its agents to get into the stores and that having the
Respondent honor its obligation to apply the contract was always a “fight.” Accordingly, it
appears that the Union attempted to make reasonably diligent efforts to learn the facts by
interviewing the employees. The Union apparently sought to learn whether they were indeed
probationary workers or meat department employees, both categories being excluded from the
coverage of the contract. The Union’s agents’ frequent visits to the stores were met with hostility
by the Respondent’s managers.
Based on the totality of the evidence, I cannot find that the Union had “clear and
unequivocal notice” that the Respondent had failed to apply the contract to its non-union unit
workforce. Concourse Nursing Home, 328 NLRB 692, 694 (1999). As set forth above, it is the
Respondent’s burden that the Union had such notice. I cannot find that it has met that burden.

10 Why it was necessary to sign employees into the Union when they were already covered
by the contract is a question that has not been answered here.
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I further find that the Respondent engaged in fraudulent concealment of material facts
concerning the true employer of the non-union workers. Such fraudulent concealment tolls the
Section 10(b) period.
3. The Relationship of the Charge to the Complaint
In deciding whether an allegation in a charge provides a sufficient basis for a complaint
allegation, the Board examines whether the allegations that are asserted to be barred by
Section 10(b) are “closely related” to the allegations of a timely filed charge. In applying this test,
the Board considers whether the (a) allegations involve the same legal theory (b) allegations
arise from the same factual circumstances or sequence of events and (c) respondent would
raise similar defenses to both allegations. Nickles Bakery of Indiana, 296 NLRB 927(1989);
Redd-I, Inc., 290 NLRB 1115 (1988).
In Redd-I, 290 NLRB at 1116, the Board stated that it would apply the traditional “closely
related” test without regard to whether another charge encompassing the untimely allegations
has been withdrawn or dismissed.”
The original charge, filed on August 15, 2007, alleged that the Respondent violated
Section 8(a)(1)(3) and (5) of the Act by:
Retaliating against employees for engaging in union activity, and
by failing to maintain the terms and conditions of employment
upon expiration of the collective bargaining agreement between [it
and the Union]
The allegations concerning Section 8(a)(5) were settled and withdrawn after the hearing
opened. The amended charge, filed on December 6, 2007, alleges that the Respondent violated
Section 8(a)(1) and (3) of the Act by retaliating against employees for engaging in union activity.
The complaint, issued on January 11, 2008, alleges that since on or about February 15,
2007, the Respondent failed to apply the terms of its collective-bargaining agreement with the
Union to employees employed in the collective-bargaining unit who were not members of the
Union because they were not members of the Union, in violation of Section 8(a)(1) and (3) of
the Act.
Clearly, no charge was filed expressly alleging the complaint allegation at issue here.
The question is whether the filed charges are closely related to the complaint allegation – is
there a sufficient connection between them to find that the complaint allegation is properly
supported by a charge.
The charges both allege that the Respondent retaliated against employees for engaging
in union activity. The charges apparently refer to alleged discrimination against employees who
were Union members or active in behalf of the Union whereas the complaint alleges the reverse
– that employees were discriminated against (the contract was not applied to them) because
they were not union members and had not engaged in union activity.
The General Counsel asserts that, broadly speaking, the charges and the complaint
allege the same theory of violation – that adverse actions were taken against employees by
virtue of their union membership in violation of Section 8(a)(3) of the Act. However, I cannot find
that any of the bases set forth under the above authorities has been met. I cannot find that the
allegations in either of the charges is closely related to the complaint’s allegation. They involve
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different theories. The charges assert that employees were discriminated against for engaging
in union activities. On the other hand, the complaint alleges that the Respondent failed to apply
the contract terms to non-union employees, thereby rewarding union membership or activities.
Nor can it be said that allegations arise from the same factual circumstances or
sequence of events. The charges relate to discrimination against employees and the complaint
relates to a failure to apply the contract terms. Similarly, I cannot find that the Respondent would
have raised similar defenses to the allegations set forth in the charges and complaint since they
stand on different theories. Precision Concrete v. NLRB, 334 F.3rd 88 (D.C. Cir. 2003).
Although I find herein that the complaint allegation is not closely related to the filed
charges, inasmuch as my main finding is that Section 10(b) does not apply to this case, I reject
the Respondent’s 10(b) defenses.
Conclusions of Law
By failing to apply the terms of the collective-bargaining agreement which was effective
from July 17, 2002 through October 4, 2006 to its employees in the collective-bargaining unit
who were not members of Local 338, Retail, Wholesale and Department Store Union/United
Food and Commercial Workers, the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
The 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 alleges and I find that the Respondent failed to apply the terms of the July
17, 2002 to October 4, 2006 collective-bargaining agreement to employees employed in the unit
who were not members of the Union. Based on the above findings it is clear that all of the
Respondent’s employees who were not members of the Union who are or have been employed
in the collective-bargaining unit at any time from February 15, 2007, have suffered identical
discriminatory treatment.
Accordingly, the proper remedy is, and I recommend that the Respondent shall make
whole all past and present unit employees who were not members of the Union who were
employed by the Respondent during the period from February 15, 2007, for any loss of pay or
other benefits they may have suffered by reason of the Respondent’s failure to apply the terms
and conditions of the collective-bargaining agreement to them in the same manner as it did to its
employees who were members of the Union. The Respondent shall make whole all past and
present employees who were employed by the Respondent in work classifications covered by
the collective-bargaining unit but who were not members of the Union during the period since
February 15, 2007, the date six months prior to the filing and service of the charge herein which
begins the period cognizable under Section 10(b) of the Act. Schorr Stern, 227 NLRB at 1655.
All of the Respondent’s unit employees shall be included in this make whole order, including
those who the Respondent improperly called “leased” or “subcontracted.”
The employees shall be made whole for any loss of earnings and other benefits,
computed on a quarterly basis from February 15, 2007 to the present, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended11
ORDER
The Respondent, Kamal Corp., Jaber Food Corp., Coro Food Corp., Loreen Food Corp.,
Nadine Food Corp., Crescent Food Corp., Ziad Food Corp., 89-02 Food Corp., 75-07 Food
Corp., and 130-10 Food Corp., d/b/a Trade Fair Supermarkets, Queens, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to apply the terms of its collective-bargaining agreement which was effective
from July 17, 2002 through October 4, 2006 to its employees in the collective-bargaining unit
who were not members of Local 338, Retail, Wholesale and Department Store Union/United
Food and Commercial Workers.
(b) 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) Make whole all of its past and present unit employees who were not members of the
Union who were employed by it during the period from February 15, 2007 to the present for any
loss of pay or other benefits they may have suffered by reason of its failure to apply the terms
and conditions of the collective-bargaining agreement to them in the same manner as it did to its
employees who were members of the Union.
(b) 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.
(c) Within 14 days after service by the Region, post at its ten supermarkets in Queens,
New York, copies of the attached notice marked “Appendix.”12 Copies of the 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

11 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.
12 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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notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since August 15, 2007.
(d) 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. September 23, 2008
____________________
Steven Davis
Administrative Law Judge
JD(NY)-37-08
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 apply the terms of our collective-bargaining agreement which was effective from July 17, 2002
through October 4, 2006 to our employees in the collective-bargaining unit who were not members of Local 338,
Retail, Wholesale and Department Store Union/United Food and Commercial Workers.
WE WILL not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL make whole all of our past and present unit employees who were not members of the Union who were
employed by us during the period from February 15, 2007 to the present for any loss of pay or other benefits they
may have suffered by reason of our failure to apply the terms and conditions of the collective-bargaining agreement
to them in the same manner as we did to our employees who were members of the Union.
WE WILL 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.
Kamal Corp., Jaber Food Corp., Coro Food Corp., Loreen Food
Corp., Nadine Food Corp., Crescent Food Corp., Ziad Food
Corp., 89-02 Food Corp., 75-07 Food Corp., and 130-10 Food
Corp., d/b/a Trade Fair Supermarkets
(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.
One MetroTech Center (North), Jay Street and Myrtle Avenue, 10th Floor
Brooklyn, New York 11201-4201
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.