Phoenix Labs Rising, LLC

National Labor Relations Board - Administrative Judge Opinions

Dec 9, 2009

29-CA-029204 (N.L.R.B. Dec. 9, 2009)

JD(NY)-42-09
Farmingdale, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
PHOENIX LABS RISING, LLC, and
PHOENIX LABS RISING, LLC,
DEBTOR-IN-POSSESSION
AND Case No. 29-CA-29204
LOCAL 202, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
Michael Berger, Esq., and Annie Li Hsu, Esq.
for the General Counsel
Perry S. Heidecker, Esq.,(Milman Labuda
Law Group PLLC), of Lake Success, NY,
for the Respondent
DECISION
Statement of the Case
ELEANOR MACDONALD, Administrative Law Judge: This case was tried in
Brooklyn, New York, on May 12 and July 14, 2009. The Complaint alleges that Respondent, in
violation of Section 8(a)(5) of the Act, refused to recognize and bargain with the Union, laid off
employees without providing the Union notice and/or an opportunity to bargain and implemented
a health insurance plan without providing the Union notice or an opportunity to bargain.
Respondent denies that it has engaged in any violations of the Act.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the brief filed by the General Counsel, I make the following
Findings of Fact
I. Jurisdiction
Respondent, a limited liability company, with its principal office and place of business
located at 200 Adams Road, Farmingdale, New York, has been engaged the manufacture, sale
and distribution of pharmaceutical products, also called neutraceutical products. Annually
Respondent has purchased and received at its Farmingdale facility goods and materials valued
in excess of $50,000 directly from points located outside the State of New York. Respondent
admits and I find that it is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that Local 202, International Brotherhood of Teamsters, is a
labor organization within the meaning of Section 2(5) of the Act.
JD(NY)-42-09
5
10
15
20
25
30
35
40
45
50
2
II. Alleged Unfair Labor Practices
A. Background
Phoenix Laboratories, Inc., a predecessor employer of the employees of Respondent,
was engaged in the manufacture, sale and distribution of pharmaceutical products at the
Farmingdale facility. Since at least the year 2000, the Union had been the exclusive collective
bargaining representative of employees in the unit employed by Phoenix Laboratories, Inc. in
the following appropriate unit:
All employees excluding office, clerical, supervisory, foremen, guards, and watchmen.
The most recent collective-bargaining agreement between the Union and Phoenix
Laboratories, Inc. had a term from August 15, 2007 through May 18, 2010. Among other
provisions, the contract required the employer to make contributions on behalf of employees to
the United Teamster Fund for “welfare coverage.”
On April 9, 2008, Respondent Phoenix Labs Rising, LLC, acquired the assets of Phoenix
Laboratories, Inc. Respondent admits that since that date it has employed as a majority of its
employees individuals who were previously employees of Phoenix Laboratories, Inc.
Respondent admits that the appropriate unit of employees has remained the same.
On July 30, 2008 Phoenix Labs Rising, LLC filed a voluntary petition in bankruptcy
pursuant to Chapter 11 of the Bankruptcy Code. Since that date Respondent Phoenix Labs
Rising, LLC, Debtor, has been a debtor-in-possession continuing the operations of the business.
Respondent’s Counsel appeared on the first day of hearing to request an adjournment of
the hearing. The request was denied. Respondent’s Counsel then withdrew from the hearing
after stating that he was unsure he had the “authority to say or do anything that would bind the
Respondent.”
No other representative for Respondent appeared at any time. Before the hearing
Counsel for the General Counsel served a subpoena ad testificandum and a subpoena duces
tecum on Respondent.1 There were no petitions filed to revoke the subpoenas. No witness
appeared and no documents were produced by Respondent in response to these subpoenas.
B. Testimony of Anthony Rosa
Managerial and Supervisory Personnel
Counsel for the General Counsel called Anthony Rosa, a trustee and business agent of
Local 202. Rosa testified that he was the Union agent responsible for dealing with Phoenix
Laboratories, Inc., when it was owned by Mel Rich. The manager in charge of day-to-day
operations at Phoenix Laboratories was Steve Tuie. His assistant was JoAnn Desidoro. The
warehouse supervisor was Mohammed Omar. Rose negotiated contracts and resolved
grievances with Perry Heidecker, Esq., Counsel for Phoenix Laboratories, Inc.

1 The subpoenas required the appearance of Eric Roy, the chief financial officer of
Respondent. Roy did not appear.
JD(NY)-42-09
5
10
15
20
25
30
35
40
45
50
3
In April 2008 Rose arrived at the facility for his monthly visit to the shop and as he began
to sign in he met Ian Parker who introduced himself at the CFO of Respondent. Parker
introduced Rose to Eric Roy who was identified as the plant manager and to Norman Friedland,
Esq. Parker said “we are the new company now.” According to Rose, Parker said he
welcomed the Union wholeheartedly and said “we needed to get some dates so we could sit
down and negotiate.” Parker said Respondent would recognize the Union.
Beginning in April 2008 Rose dealt with a number of Respondent’s representatives
including owner Dr. Golyan, CFO Ian Parker, and plant manager Eric Roy.2 The person in
charge of day-to-day operations at the company was Steve Tuie, and the warehouse supervisor
was Mohammed Omar. Rose also dealt with Counsel for the company, Perry Heidecker, Esq.
and Norman Friedland, Esq. JoAnn Desidoro continued to work for Respondent.
Rosa testified that just before April 2008 when he learned that Phoenix Labs Rising was
the new owner there were about 65 employees in the bargaining unit. Respondent hired all the
members of the bargaining unit.
Negotiations
On April 23, 2008, George Kirschenbaum, Esq., Counsel to the Union, wrote to
Heidecker asking for the name of the new employer and demanding that Phoenix Laboratories
bargain with Local 202 concerning the effects of the sale on the bargaining unit employees.
Kirschenbaum asked that employees receive all the benefits due under the current collective-
bargaining agreement.3
On May 29, Kirschenbaum wrote to Heidecker to confirm their recent telephone
conversation. Kirschenbaum asked that Respondent agree in writing to confirm a statement
made by Heidecker that it would recognize the Union. Kirschenbaum wrote that Heidecker had
informed him that although Respondent would recognize the Union it did not agree to adopt the
existing contract.4
Heidecker replied on June 12 stating “Nothing in this letter shall be construed as an
admission by [Respondent] that it is the employer of the employees of Phoenix Labs or has any
obligations to them or the Union.”5
Rose testified that there were several negotiation sessions and the Union proposed a
Memo of Understanding dated July 23, 2008. The Memo proposed an agreement to run from
July 1, 2008 to July 1, 2010, with provisions for a wage increase, a contribution to the United
Teamster Fund and a 410(k). The Memo proposed to retain all other language as in the old
Phoenix Laboratories contract and proposed that employee seniority based on employment with
Phoenix Laboratories would be honored. Respondent did not sign the July 23 Memo of
Understanding. As stated above, Respondent filed a petition in bankruptcy on July 30, 2008.

2 At the time of the hearing, Roy was the CFO of Respondent.
3 The letter also referred to payments to employees who were not recalled following a work
stoppage.
4 The letter also stated that Heidecker had agreed on Respondent’s behalf that accrued
vacation pay and other payments would be made to unit employees not reinstated following a
2007 strike.
5 Heidecker’s letter also discussed the arrangements for paying the accrued vacation to
former employees.
JD(NY)-42-09
5
10
15
20
25
30
35
40
45
50
4
The Unfair Labor Practice Charge leading to the instant complaint was filed on October
2, 2008. The Complaint issued on February 11, 2009. On March 13, 2009, Heidecker wrote to
the Regional Director of Region 29 stating that the Company would extend recognition to the
Union and that Respondent offered to enter into negotiations.
The parties met on April 6, 2009. Rosa and Kirschenbaum represented the Union and
Heidecker and Friedland represented Respondent. The parties discussed the letter of
recognition and a collective-bargaining agreement that would “help the company survive.”
A second meeting took place on April 24, 2009. Rosa testified Heidecker came to the
meeting and stated that he had just learned the company was closing. Heidecker said Dr.
Golyan was taking his money out and although the company would run for another week or two
the employees would not be paid because the company had no more money.
By letter of May 4, 2009 the Union demanded that Respondent meet to negotiate
concerning the effects of closing of the facility.
Rosa testified that he had visited Respondent’s premises during the second week of
May 2009 and was informed by the shop steward that the company was still operating.
The Layoffs
Rosa testified that in late August 2008 Parker and Roy showed him a list of employees
they planned to lay off. Rosa objected that Respondent was selecting those whom it wished to
lay off without regard their seniority. Parker and Roy replied that “[T]hey were going to do what
they wanted to do.” Rosa testified that Respondent never offered to bargain about the layoffs.
As he walked away from Parker and Roy, Rosa told them that he would file charges. On August
29, 2008, Respondent laid off the following 16 employees:6
Terry Calceglia
Victor Collado
Shafique Davidson
Sardar Deen
Juan Diaz
Neville Gordon
Hernando Hernandez
Ramkisto Kishtu
Makwana Kiritkumar
Samuel Persaud
Catherine Ramdawar
Mahendra Shah
Mahesh Shelat
Usha Singh
Moin Syed
Servio Wilches
According to Rosa, on September 19, 2008 the Union was informed that Respondent
had laid off three employees as of September 18. On September 22, 2008 the Union was

6 Copies of the layoff notices for 16 employees were entered into evidence.
JD(NY)-42-09
5
10
15
20
25
30
35
40
45
50
5
informed that Respondent had laid off five more employees as of September 19. Respondent
did not give prior notice to the Union concerning these September layoffs which affected the
following employees:7
Diane Bingold
Fernando Garcia
Nely Lora
Martin Mondragon
Don Mosley
Habibux Rahaman
Mohabir Shivcharan
Julia Vasquez

On September 19, 2008 Rosa filed a grievance with Respondent demanding that the
layoffs be made in the correct order of seniority.8 Respondent did not give the Union an answer
to the grievance.
On September 25, 2008 Rosa wrote to Heidecker requesting dates to conduct
negotiations. Rosa did not receive any response to his request for a meeting.
Employee Benefits
Rosa testified that the collective-bargaining agreement between Phoenix Laboratories
and the Union provided for certain benefits to be available to the employees through the United
Teamster Fund. From April 2008 the United Teamster Fund ceased receiving contributions on
behalf of Respondent’s employees. The Fund continued providing benefits to the employees for
a time but it ended coverage of Respondent’s employees on October 30, 2008.
Rosa testified that on a visit to the facility he was informed by a bargaining unit member
that Respondent had given employees a letter describing a new medical insurance plan. The
unit member gave Rosa a copy of the letter dated September 30, 2008. The letter stated that
effective October 1, 2008 Respondent would offer single health coverage to employees with
Empire Blue Cross Blue Shield at a cost of $18 weekly. After receiving the letter, Rosa met with
Parker, Roy and Friedland in the management office and told them that any change in benefits
had to be negotiated with the Union. Immediately following this conversation, the company
representatives conducted a meeting with employees in the cafeteria and informed them of the
new medical benefits Respondent was offering. Rosa observed the meeting but he testified that
he had no say in the proceedings. Respondent had not asked for the Union’s position before
the meeting.
Union Access
Rosa testified that he had been allowed to visit the premises of Phoenix Laboratories
whenever he wanted to. He signed in upon his arrival. There were no restrictions on his ability
to speak to the bargaining unit members. There were no changes after Respondent took over
in April 2008. Thereafter, he continued to sign in upon his arrival and then he was free to speak
to the unit members.

7 Copies of the layoff notices for eight employees were entered into evidence.
8 Rosa faxed the grievance to Eric Roy and Steve Tuie.
JD(NY)-42-09
5
10
15
20
25
30
35
40
45
50
6
C. Eric Roy’s Affidavit
As stated above, Eric Roy, identified by Respondent’s Counsel as the CFO of
Respondent at the time of the instant hearing, was subpoenaed to appear but failed to do so.
His affidavit was taken by a Board Agent on January 14, 2009 in the presence of Counsel for
Respondent. The affidavit states that Roy is the General Manager of Respondent. Whichever
title Roy holds, he is an agent of Respondent acting on its behalf and his affidavit was entered
into evidence as the admission of a party. The following facts are taken from Roy’s affidavit:
Roy was hired as a Senior Vice President on April 9, 2008 when Respondent Phoenix
Labs Rising, LLC., began operations. He became General Manager on October 17, 2008.
Roy had been involved in putting together a management team prior to April 2008.
Golyan Holding LLC owns a majority of the equity of Respondent Phoenix Labs Rising, LLC.
Respondent purchased the assets of Phoenix Laboratories Inc. by an asset purchase
agreement dated February 27, 2008 and a bill of sale dated April 9, 2008.
Phoenix Laboratories manufactured and Respondent manufactures “neutraceutical
products”, or nutritional supplements, at the same location, 200 Adams Boulevard, Farmingdale,
New York. There have not been any interruptions in operations from April 2008 and employees
have continued to report to work. Respondent continued to use same the equipment and
machinery used by Phoenix Laboratories, Inc., and did not make any major purchases of new
equipment and machinery. Respondent utilized the same vendors as did Phoenix Laboratories.
About 70% of Respondent’s customers were customers of Phoenix Laboratories, Inc.
Mohammed Omar was the Plant Manager for Phoenix Laboratories and then for
Respondent until he was terminated on November 13, 2008. Mike Ali was the packaging
supervisor for both companies until he was terminated on November 13, 2008. John Ganjian
was the Quality Control Supervisor for both companies until he retired on October 31, 2008.
Wakhil Tatahri was the Pharmacy Supervisor for both companies until he was terminated on
November 13, 2008. Ted Jeremenko was the Mixing Supervisor for both companies until
August 22, 2008.
Respondent “leased” 100% of the bargaining unit employees from Phoenix Laboratories,
Inc. Phoenix Laboratories, Inc. paid the employees’ wages and benefits and was reimbursed by
Respondent. Beginning on September 18, 2008 Respondent began paying employees
directly.9 Respondent paid the employees according to the same wage scale used by Phoenix
Laboratories, Inc. Respondent continued to grant the same vacation, holiday, sick and personal
days as had been given by Phoenix Laboratories, Inc. No changes were made in job
classifications. In January 2009, Respondent employed 56 bargaining unit employees as
compared to the 76 unit employees employed at the time of the asset purchase in April 2008.
Respondent has never made any contributions to the Union’s Funds. No deductions
were made for health insurance from employee’s paychecks. Respondent deducted Union
dues from employees from April 9 to August 18, 2009. The dues were not remitted to the
Union.

9 Roy believes this was due to a restraining order freezing Phoenix Laboratories, Inc.’s bank
accounts.
JD(NY)-42-09
5
10
15
20
25
30
35
40
45
50
7
In July 2008, Evergood Corp., a creditor of Phoenix Laboratories, Inc., filed a replevin
action against Respondent arguing that it had the right to seize Respondent’s equipment
because the equipment was collateral for a loan made by Evergood to Phoenix Laboratories,
Inc. The court issued an Order granting possession of Respondent’s equipment to Evergood.
As a result of the Order, Respondent filed for bankruptcy; the filing allowed Respondent to
continue using the equipment.
The Respondent laid off 15 employees on August 29, 2008; they were paid through
September 5. The employees were chosen by Plant Manager Omar and Walter Kabinsky, who
became the Director of Operations at an unspecified date. Respondent informed Union Agent
Rosa who expressed disagreement because the layoffs were not to be made in accordance with
seniority. Roy’s affidavit states, “Rosa … was upset that the layoffs were not being made in
accordance with seniority.” The affidavit states that Roy said they could talk about one of the
names on the list and that Rosa said, “[Y]ou gotta do what you gotta do, and we gotta do what
we gotta do.” Respondent laid off another eight employees on September 19, 2008 without prior
notice to the Union. Three laid off employees have been rehired.
Respondent offered health coverage to the employees on October 1, 2008. The only
notice given to the Union was a copy of the September 30, 2008 memo distributed to
employees.
The Respondent has never denied the Union access to the facility.
D. Discussion and Conclusions
The General Counsel contends that Respondent is a successor to Phoenix Laboratories,
Inc,, and that it was obliged to recognize and bargain with the Union. The General Counsel
argues that Respondent violated section 8(a)(5) of the Act when it laid off employees and
implemented its health insurance plan without notice to the Union and an opportunity to bargain.
The General Counsel’s argument that Respondent has an obligation to recognize and
bargain with the Union is founded on NLRB v. Burns, 406 U.S. 272 (1972) and Fall River Dyeing
& Finishing Corp. v. NLRB, 482 U.S. 27 (1987). As the court explained in Fall River Dyeing,
these two cases hold that a “new employer has an obligation to bargain with [the employees’]
union so long as the new employer is in fact a successor of the old employer and the majority of
its employees were employed by its predecessor.” 482 U.S. at 41.
There can be no serious dispute that there is a substantial continuity between Phoenix
Laboratories, Inc., and Phoenix Labs Rising, LLC. Respondent admits that since the date it
purchased the assets of Phoenix Laboratories, Inc., a majority of its employees have been
individuals who were previously employees of Phoenix Laboratories, Inc. The evidence shows
that the same individuals who had worked for Phoenix Laboratories, Inc., in a managerial or
supervisory capacity continued to exercise the same duties for Respondent: Plant Manager
Mohammed Omar, Packaging Supervisor Mike Ali, Quality Control Supervisor John Ganjian,
Pharmacy Supervisor Wakhil Tatahri and Mixing Supervisor Ted Jeremenko. I also credit
Rosa’s testimony that Steve Tuie was employed in a supervisory capacity by both companies.
Respondent retained the same Labor Counsel whom Phoenix Laboratories, Inc., had employed
previously. When Respondent began operating the company it retained the employees of
Phoenix Laboratories, Inc., and it continued to operate the business without interruption at the
same location where it produced the same products. Respondent continued to use the same
equipment and machinery without any major new purchases. Respondent dealt with the same
vendors as Phoenix Laboratories, Inc. About 70% of Respondent’s customers had been
JD(NY)-42-09
5
10
15
20
25
30
35
40
45
50
8
customers of Phoenix Laboratories, Inc.
I find that Respondent is the successor of Phoenix Laboratories, Inc. Respondent
acquired substantial assets of Phoenix Laboratories, Inc. and continued, without interruption or
substantial change, the business operations of Phoenix Laboratories, Inc. A majority of
Respondent’s employees were employed by Phoenix Laboratories, Inc. It follows that
Respondent had a duty to recognize and bargain with the Union as the representative of
Respondent’s employees in the appropriate unit. NLRB v. Burns, supra.
The Complaint does not allege that Respondent was bound to continue all the terms of
the collective-bargaining agreement with the Union, and Counsel for the General Counsel’s
Brief does not contend that Respondent is a “perfectly clear” successor to Phoenix Laboratories,
Inc.10 As stated above, Respondent did not continue the contributions to the United Teamster
Fund. The Complaint does not allege the failure to continue the contributions as a violation of
the Act.
Kirschenbaum’s April 23, 2008 letter to Heidecker was a clear demand for recognition
and bargaining on behalf of the Union. I credit Rose that when he visited the facility during April
2008 he spoke to Parker who agreed to recognize the Union and said that he needed some
dates for negotiations. I credit Rose that negotiations between the Union and Respondent took
place on several occasions following Respondent’s purchase of the company. I credit Rose that
the negotiations led to the Union’s submission of a Memo of Understanding dated July 23, 2008
for an agreement with a term from July 1, 2008 to July 1, 2010.
Heidecker’s letter of June 12, 2008 amounted to a withdrawal of recognition from the
Union. Respondent’s refusal to recognize and bargain with the Union from June 12, 2008 until it
again agreed to recognize the Union on March 13, 2009, violated Section 8(a)(5) of the Act.
The record shows that Respondent laid off 16 employees on August 29, 2008. I credit
Rosa that a few days before the layoffs were implemented, Parker and Roy showed him a list of
employees selected for layoff. I credit Rosa that he protested to Respondent that layoffs had to
be in order of seniority. I credit Rosa that Respondent did not offer to bargain about the layoffs.
I credit Rosa that Parker and Roy said they were going to do what they wanted to do. Rosa
responded that the Union would file charges. I note that Roy’s affidavit largely confirms Rosa’s
version of the meeting, except that Roy states he told Rosa they could talk about one of the
names on the list. I do not credit Roy; instead, I credit Rosa whom I observed and who
displayed a vivid recollection of the meeting as he testified about it. I find that Roy and Parker
showed Rosa a list and made it clear that the decision on layoffs had been made and was final.
In effect, they presented the Union with the list in such a way that Rosa could reasonably
conclude that it was a fait accompli. Bituminous Roadways of Colorado, 314 NLRB 1010, fn. 2,
(1994). I find that Respondent violated Section 8(a)(5) of the Act when it laid off 16 employees
on August 29, 2008 without notice to the Union and an opportunity to bargain. Norco Products,
288 NLRB 1416, 1422 (1988).
I credit Rosa that the Union was informed by letter, after the layoffs had been
implemented, that three employees were laid off on September 18 and five employees were laid
off on September 19. Roy’s affidavit admits that no notice was provided to the Union prior to the
layoffs. Respondent violated Section 8(a)(5) of the Act when it laid off three employees on
September 18 and five employees on September 19 without notice to the Union and an

10 See NLRB v. Burns, supra, 406 U.S. at 294-5.
JD(NY)-42-09
5
10
15
20
25
30
35
40
45
50
9
opportunity to bargain.
Respondent did not give the Union notice and an opportunity to bargain before offering a
new health insurance plan to the unit employees. Rosa received a copy of the letter
announcing the new plan on October 1, 2008 immediately prior to a meeting in which
Respondent informed the employees about the new benefits. Although Rosa protested to
Parker, Roy and Friedland that a change in benefits had to be negotiated with the Union, the
three company representatives did not agree to negotiate with the Union and they proceeded to
hold a meeting with employees concerning the new benefits. Rosa attended the meeting as an
observer. The new health insurance plan was announced to the employees and the Union as a
fait accompli. I find that Respondent violated Section 8(a)(5) of the Act by implementing a new
health insurance plan without notice to the Union and an opportunity to bargain. Mid-Continent
Concrete, 336 NLRB 258, 259 (2001).
Conclusions of Law
1. Respondent Phoenix Labs Rising, LLC, and Phoenix Labs Rising, LLC, Debtor-in-
Possesion, is a successor to Phoenix Laboratories, Inc., and has a duty to recognize and
bargain with Local 202, International Brotherhood of Teamsters, as the exclusive collective-
bargaining representative of its employees in the following appropriate unit:
All employees excluding office, clerical, supervisory, foremen, guards and watchmen.
2. By refusing to recognize and bargain with the Union from June 12, 2008 until March
13, 2009, Respondent violated Section 8(a)(5) and (1) of the Act.
3. By laying off employees on August 29, September 18 and September 19, 2008
without reasonable notice to the Union and an opportunity to bargain, Respondent violated
Section 8(a)(5) and (1) of the Act.
4. By implementing a new health insurance plan without reasonable notice to the Union
and an opportunity to bargain, Respondent violated Section 8(a)(5) and (1) 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.
Having found that Respondent unlawfully laid off employees on August 29, September
and September 19, 2008, Respondent must be ordered to bargain with the union concerning the
layoff decision and its effects. Respondent must be ordered to offer reinstatement to the laid off
employees, and to make them whole for any loss of earnings and other benefits resulting from
the unilateral layoffs. Backpay shall run from the date of the unlawful layoffs until the date the
employees are reinstated to the same or substantially equivalent positions, or have secured
equivalent employment elsewhere. Backpay shall be based on the earnings that the employees
would have received during the applicable period, less any interim net earnings, and shall be
computed in the manner prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950), with interest
to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
JD(NY)-42-09
5
10
15
20
25
30
35
40
45
50
10
Having found that the Respondent unlawfully implemented a new health insurance plan
on October 1, 2008, Respondent, if requested by the Union, must rescind the health insurance
plan. It is not clear from the instant record whether the employees benefitted or lost from the
unilateral implementation of the plan and any make whole remedy should be left to the
compliance proceeding. Counsel for the General Counsel’s Brief requests that Respondent be
ordered to reinstate the United Teamster Fund and ordered to make the Fund and the
employees whole for the failure to continue payments to the Fund. However, the Complaint
does not allege that Respondent unlawfully failed to contribute to the United Teamster Fund and
it would be improper to order a remedy for an action that has not been alleged, and found to be,
unlawful.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended11
ORDER
The Respondent, Phoenix Labs Rising, LLC, and Phoenix Labs Rising, LLC, debtor-in-
Possession, Farmingdale, New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Local 202, International Brotherhood of
Teamsters, as the exclusive collective-bargaining representative of its employees in the
following appropriate unit:
All employees excluding office, clerical, supervisory, foremen, guards and watchmen.
(b) Laying off employees without reasonable notice to the Union and an opportunity to
bargain.
(c) Implementing a new health insurance plan without reasonable notice to the Union
and an opportunity to bargain.
(d) 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) On request, bargain with the Union concerning the decision to lay off unit employees
beginning on August 29, 2008 and the effects of that decision.
(b) Within 14 days from the date of the Board’s Order, offer the following employees full
reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed:

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.
JD(NY)-42-09
5
10
15
20
25
30
35
40
45
50
11
Terry Calceglia
Victor Collado
Shafique Davidson
Sardar Deen
Juan Diaz
Neville Gordon
Hernando Hernandez
Ramkisto Kishtu
Makwana Kiritkumar
Samuel Persaud
Catherine Ramdawar
Mahendra Shah
Mahesh Shelat
Usha Singh
Moin Syed
Servio Wilches
Diane Bingold
Fernando Garcia
Nely Lora
Martin Mondragon
Don Mosley
Habibux Rahaman
Mohabir Shivcharan
Julia Vasquez
(c) Make the above named employees whole for any loss of earnings and other benefits
suffered as a result of their unlawful layoffs, in the manner set forth in the remedy section of the
decision.
(d) On request of the Union, rescind the unlawfully implemented health insurance plan.
(e) 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.
(f) Within 14 days after service by the Region, post at its facility in Farmingdale, 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
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

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.”
JD(NY)-42-09
5
10
15
20
25
30
35
40
45
50
12
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 June 2008.
(g) 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 9, 2009
____________________
Eleanor MacDonald
Administrative Law Judge
JD(NY)-42-09
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 refuse to recognize and bargain with Local 202, International Brotherhood of
Teamsters, as the exclusive collective-bargaining representative of our employees in the
following appropriate unit:
All employees excluding office, clerical, supervisory, foremen, guards and watchmen.
WE WILL NOT lay off employees without reasonable notice to the Union and an opportunity to
bargain.
WE WILL NOT implement a new health insurance plan without reasonable notice to the Union
and an opportunity to bargain.
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 bargain with the Union, on request, concerning the decision to lay off unit employees
beginning on August 29, 2008 and concerning the effects of that decision.
WE WILL, within 14 days from the date of this Order, offer the employees named below full
reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
Terry Calceglia
Victor Collado
Shafique Davidson
Sardar Deen
Juan Diaz
Neville Gordon
Hernando Hernandez
Ramkisto Kishtu
Makwana Kiritkumar
Samuel Persaud
Catherine Ramdawar
Mahendra Shah
JD(NY)-42-09
Mahesh Shelat
Usha Singh
Moin Syed
Servio Wilches
Diane Bingold
Fernando Garcia
Nely Lora
Martin Mondragon
Don Mosley
Habibux Rahaman
Mohabir Shivcharan
Julia Vasquez
WE WILL make the above named employees whole for any loss of earnings and other benefits
resulting from their layoffs, less any net interim earnings, plus interest.
WE WILL, if the Union requests it, rescind the unlawfully implemented health insurance plan.
PHOENIX LABS RISING, LLC,
PHOENIX LABS RISING, LL, Debtor-in-Possession
(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, 5th 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.