Sidhal Industries LLC

National Labor Relations Board - Board Decisions

Dec 30, 2010

356 N.L.R.B. 422 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 422
Sidhal Industries, LLP and Local 813, International
Brotherhood of Teamsters. Cases 29–CA–29608
and 29–CA–29637
December 30, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
On April 26, 2010, Administrative Law Judge Steven
Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions, to
modify his remedy,2 and to adopt the recommended Or-
der as modified.3
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 1083 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we modify the judge’s remedy by requiring that
backpay and other monetary awards shall be paid with interest com-
pounded on a daily basis.
We agree with the judge that the remedy should include full backpay
for Samuel Gonzalez, but we find that the backpay period shall begin
on the date of the Respondent’s unlawful discrimination against Gonza-
lez, and not on September 16, 2009, as cited by the judge. In selecting
September 16, the judge relied on L.J. Logistics, Inc., 339 NLRB 729,
731 (2003), where the Board found that backpay would begin on the
date of the regional director’s approval of a settlement agreement, in
order to prevent an unintended “double recovery” for the period be-
tween the date of the discrimination and the date of that agreement.
However, while it may have been clear in L.J. Logistics, and cases
citing it, that the amounts paid pursuant to settlement agreements were
the equivalent of full backpay for the presettlement agreement period,
here the record does not establish whether this is the case. According-
ly, to ensure that Gonzalez receives an appropriate make-whole remedy
for the discrimination against him, we shall modify the judge’s recom-
mended remedy to provide that the backpay period shall commence on
the date of the unlawful discrimination against Gonzalez, with any
amounts already paid to be deducted from the Respondent’s backpay
liability. In this regard, we find it unnecessary to rely on Vishal Con-
struction., 354 NLRB No. 43 (2009) (not reported in Board volumes),
cited by the judge.
3 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Sidhal
Industries, LLP, its officers, agents, successors, and as-
signs, shall take the action set forth in the recommended
Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Make Samuel Gonzalez whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him in the manner set forth in this
decision and order.”
2. Substitute the following for paragraph 2(f ).
“(f) Within 14 days after service by the Region, post at
its Hempstead, New York facility, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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 em-
ployees and former employees employed by the Re-
spondent at any time since April 6, 2009.”
Substitute the attached notice for that of the adminis-
trative law judge.

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
356 NLRB No. 67

SIDHAL INDUSTRIES, LLP 423
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT FAIL and refuse to bargain collectively
and in good faith, by failing and refusing to meet and
bargain with Local 813, International Brotherhood of
Teamsters, as the exclusive collective-bargaining repre-
sentative of the employees in the following unit:

All full-time and part-time drivers and warehouse em-
ployees employed at our Hempstead facility, excluding
office clerical employees and supervisors as defined in
the National Labor Relations Act.

WE WILL NOT FAIL or refuse to hire or consider for hire
Samuel Gonzalez as a warehouse employee.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL on request, bargain collectively and in good
faith with Local 813, International Brotherhood of
Teamsters as the exclusive collective-bargaining repre-
sentative of the unit employees and, if an understanding
is reached, embody the understanding in a signed agree-
ment.
WE WILL make Samuel Gonzalez whole for any loss of
earnings and other benefits resulting from our refusal to
hire him or consider him for hire, less any net interim
earnings, plus interest.
WE WILL within 14 days from the date of the Board’s
Order, offer Samuel Gonzalez employment in the ware-
house position he applied for, without prejudice to his
seniority or any other rights or privileges previously en-
joyed, dismissing, if necessary, any employees hired to
fill the position for which he applied. His waiver of rein-
statement is no longer in WE WILL, within 14 days from
the date of the Board’s Order, if we have not already
done so, remove from our files any reference to our un-
lawful refusal to hire or consider for hire Samuel Gonza-
lez, and within 3 days thereafter, notify him in writing
that this has been done and that our refusal to hire him or
consider him for hire will not be used against him in any
way.
SIDHAL INDUSTRIES, LLP

Tara O’Rourke, Esq., for the General Counsel.
Jeffery A. Meyer, Esq. (Kaufman, Dolowich, Voluck, & Gonzo,
LLP), of Woodbury, New York, for the Respondent.
Jane Lauer Barker, Esq. (Pitta & Giblin, LLP), of New York,
New York, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based upon
charges filed by Local 813, International Brotherhood of Team-
sters (Union) in Cases 29–CA–29608 and 29–CA–29637, on
May 12 and July 9, 2009, respectively, the Regional Director
issued an Order Consolidating Cases and consolidated amended
complaint in the above cases, alleging that Sidhal Industries,
LLP (Respondent) (a) failed and refused to meet and bargain
with the Union and (b) refused to hire or consider for hire
Samuel Gonzalez. The Respondent’s answer denied the materi-
al allegations of the complaint.
On September 16, 2009, the Regional Director approved a
bilateral settlement agreement (settlement) executed by the
Respondent, resolving the allegations made in the amended
complaint.
On January 26, 2010, the Regional Director issued an Order
Revoking Settlement and reissuance of consolidated amended
complaint and notice of hearing. The Order stated that the Re-
spondent has failed to comply with certain aspects of the set-
tlement, essentially by failing and refusing to offer to meet and
bargain with the Union at least four times per month until such
time that a contract has been reached, a lawful impasse is
reached or the Union indicates that it does not want to meet any
further.
The Order concluded that inasmuch as the Respondent failed
to comply with certain terms of the settlement or cure its de-
fault, the Regional Director revoked the settlement and asserted
that the allegations in the amended complaint may be deemed
to be true by the Board.
The Order directed that the Respondent file an answer lim-
ited to those paragraphs of the Order which set forth its alleged
failure to comply with certain terms of the settlement. The Re-
spondent filed an answer which denied that it failed to comply
with those terms, and on March 16, 2010, a hearing was held
before me in Brooklyn, New York.
On the entire record, including my observation of the de-
meanor of the witnesses, I make the following1
I. THE SETTLEMENT AGREEMENT2
A. Procedural Terms
The settlement agreement provides, as material herein:

The Respondent agrees that in case of non-compliance with
any of the terms of this Settlement Agreement by the Re-
spondent, the Regional Director may . . . reissue the complaint
previously filed. Thereafter, the General Counsel may file a
Motion for Summary Judgment with the Board on the allega-
tions of the just issued complaint concerning the violations of
the Act alleged herein. The Respondent understands and
agrees that the allegations of the aforementioned complaint
may be deemed to be true by the Board, that it will not contest
the validity of any such allegations, and the Board may enter
1 Counsel for the Respondent made an opening statement, and the
General Counsel made closing argument. No party filed a brief.
2 The settlement is in evidence as GC Exh. 1(q).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 424
findings of fact, conclusions of law, and an Order on the alle-
gations of the aforementioned complaint, including a full and
complete traditional backpay remedy for all violations of the
Act, and any appropriate special remedies sought. The only
issues that may be raised in response to the Board’s Order to
Show Cause [as to why the Motion for Summary Judgment
should not be granted] is whether the Respondent defaulted
upon the terms of the Settlement Agreement and/or if it re-
ceived notice to cure said default. The Board may then, with-
out necessity of trial or any other proceeding, find all allega-
tions of the complaint to be true and make findings of fact and
conclusions of law consistent with those allegations adverse
to the Respondent, on all issues raised by the pleadings. The
Board may then issue an Order providing a full remedy for
the violations found as is customary to remedy such viola-
tions, including, but not limited to the remedial provisions of
this Settlement Agreement and liquidated damages.

The settlement agreement also provided that any payments
of any amounts due under the terms of the settlement “shall not
constitute the full remedy of the allegations set forth in the
complaint.”
Inasmuch as the Respondent filed an answer to the Order
Revoking Settlement Agreement, a motion for summary judg-
ment was not filed, and a hearing was held on the disputed
issue of whether the Respondent failed to comply with the set-
tlement.
B. Substantive Terms
As material here, the settlement agreement states that the Re-
spondent agrees as follows:

WE WILL meet and bargain with the Union at 5:30 p.m. on
September 16, 2009 (at the offices of Employer’s Counsel)
and at 3:00 p.m. on October 21, 2009 (at the Union’s office),
for a minimum of two hours each time, absent agreement by
the parties that the meetings be curtailed.

WE WILL offer the Union future bargaining sessions at a
minimum of four days per month, for a minimum of two
hours each time, absent agreement by the parties that the
meetings be curtailed, until such time that a collective bar-
gaining agreement is reached, a lawful impasse is reached or
the Union indicates that it does not want to meet any further.
For at least half of these dates, we will offer bargaining ses-
sions that will begin no later than 3:00 p.m.

WE WILL negotiate in good faith as to the locations of each
meeting.

II. THE ALLEGED FAILURE TO COMPLY WITH THE TERMS
OF THE SETTLEMENT
A. The Meetings of September 16 and October 21
The settlement was approved by the Regional Director on
September 16, 2009.
As set forth in the settlement, the parties agreed to meet on
September 16. They did not because Jane Lauer Barker had a
court ordered deposition with a discovery deadline that day.
She advised Jeffrey Meyer, the Respondent’s counsel, that she
could not attend the bargaining session, and it was canceled.
The next meeting specified in the settlement was scheduled
for October 21 at 3 p.m. at the Union’s office. On October 20,
Meyer emailed Barker asking her to confirm that they would be
meeting the following day at 5 p.m. at his office. Barker replied
that the meeting was confirmed, and asked for directions from
the Union’s office.
Barker testified that although the settlement provided that the
meeting would be at the Union’s office, she and Lewis agreed
that rather than have a dispute as to where to meet, she agreed
to Meyer’s request that the session be held at his office.
Barker testified that she and Union Representative Cliff
Lewis arrived at Meyer’s office on October 21 at 3:20 p.m.
They announced themselves to the receptionist and waited. At
about 4:10 p.m., Meyer told them that his client was en route.
They waited until 5:30 p.m., and Lewis decided that he would
not wait any longer. This was confirmed in Barker’s November
3 letter to Meyer. No response was received to that letter.
Barker testified that she understood that the meeting was to
be held at Meyer’s office. She stated that in confirming the
meeting with Meyer, she did not note that Meyer’s email stated
that the session would begin at 5 p.m. In fact, she testified that
the meeting was, in fact, scheduled for 3 p.m. because the set-
tlement set the meeting for 3 p.m. She stated that, nevertheless
she was at Meyer’s office at 5 p.m., the time Meyer had asked
her to confirm, and stayed until 5:30 p.m., not having seen the
Employer or Meyer during that 30-minute period of time.
Jeffrey Fein, one of the owners of the Respondent, testified
that he arrived at Meyer’s office at about 5:05 p.m. that day. He
walked through the lobby and did not observe anyone sitting
there. He was told by the receptionist that Barker and Lewis
had just left. Fein looked for them but did not see them on
Meyer’s floor, in the lobby, or outside the building.
B. The Requirement That the Respondent Offer
Four Meeting Days Per Month
As set forth in the settlement, the Respondent agreed, and
was required, to offer the Union “in the future” four bargaining
sessions per month until a contract is reached, a lawful impasse
is reached, or until the Union indicates that it does not want to
meet any further.
Accordingly, since the settlement mandated specific meet-
ings on September 16 and October 21, the four “future” ses-
sions per month referred to meetings in November and thereaf-
ter.
1. The meetings in November and December
On October 22, Barker wrote to Meyer, requesting bargain-
ing on the following dates and times “pursuant to the NLRB
Settlement and Notice”:

November 13, 3:00 p.m. at Meyer’s office.
November 24, 5:00 p.m. at the Union’s office.
November 30, 3:00 p.m. at Meyer’s office.
December 2, 5:00 p.m. at the Union’s office.
December 7, 3:00 p.m. at Meyer’s office.
December 16, 5:00 p.m. at the Union’s office.
December 21, 3:00 p.m. at Meyer’s office.

SIDHAL INDUSTRIES, LLP 425
Barker’s letter requested certain information including a cur-
rent list of unit employees, their dates of hire, current rate of
pay, job classification, residence address and phone number.
She noted that such information was previously requested at
their meeting on July 28, 2009, and asked that it be provided on
or before October 30.
On November 6, the Regional Office wrote to Meyer, advis-
ing that on November 3, Barker requested that the settlement be
revoked because of the events of October 21, set forth above.
The letter also advised that the Union told the Regional Office
that the Respondent had not responded to its letter of October
22 in which it offered seven dates and times for future bargain-
ing sessions. The Regional Office advised Meyer that the set-
tlement requires that the Employer offer (emphasis in original)
to meet and bargain with the Union at least four times per
month, and that it is the Regional Office’s understanding that
the Employer did not respond to that letter, offer any dates to
the Union for bargaining, and has made no additional attempts
to meet and bargain with the Union, as is required.
The letter concluded that the Regional Office believed that
the Employer’s conduct, as alleged by the Union is inconsistent
with the express terms and spirit of the settlement, and that the
letter was the Region’s only request that the Employer cure its
default of the terms of the agreement as soon as possible, but
no later than noon on November 10 (later extended to the close
of business on November 11). The letter outlined ways in
which the Employer could cure its default by complying with
the terms of the settlement:

Either agreeing to the Union’s proposed dates or offering a
minimum of four alternate dates on which the Employer is
available to meet and bargain with the Union in the manner
specifically set forth in the agreement. If the Employer fails to
comply with this affirmative obligation, I will recommend
that the Region revoke the Settlement, reissue the complaint
and seek summary judgment on all of the allegations in the
complaint, including the reinstatement of Sam Gonzalez and
any additional backpay to which he may be entitled.

Meyer did not respond to Barker’s October 22 letter until
November 11. On that date he wrote to Barker, advising that
the Employer is available to bargain as follows:

November 24, 5:00 p.m. at Meyer’s office.
or
December 2, 3:00 p.m. at the Union’s office.

AND

December 10, 5:00 p.m. at Meyer’s office or 3:00 p.m. at the
Union’s office, depending on the time and location of the ear-
lier meeting referenced above.
or
December 14, 3:00 p.m. at the Union’s office or 5:00 p.m. at
Meyer’s office, depending on the time and location of the ear-
lier meeting referenced above.

Please confirm which of the above dates are acceptable.

It should be noted that the Respondent offered to bargain on
only one date in November, that being November 24.
On November 13, Barker wrote to Meyer, reminding him
that the Respondent was required to bargain with the Union for
a minimum of 4 days per month. The letter further stated that
“we are only willing to agree to less than four days per month
for the month of November, 2009, and only because you did
not respond to my October 22 letter in a timely manner. We
offered you three dates in November, but you only accepted
one date, November 24. We accept that date, but your client
will need to bargain at the Union’s office since we went to your
office last time (at which your client did not show up before we
left at 5:30 p.m., more than two hours after we arrived). . . . If
your client is not willing to bargain on November 30, as we
proposed, please provide two additional dates in November
when your client is willing to bargain.”
Barker testified that she agreed to meet fewer than 4 days in
the month of November, but she did not agree to 1 day only.
She stated that her letter asked Meyer for additional dates in
November.
Barker agreed to bargain on November 24 at 3 or 5 p.m.
Barker’s letter also stated that she accepted the Employer’s
offer to bargain on December 2 and 10 as proposed by Meyer.
However, there was some confusion as to which locations and
times she was agreeing to. As Meyer’s November 11 letter
stated that he offered to bargain on December 2 at 3 p.m. at the
Union’s office, her agreement was to bargain at 3 p.m. that day
at Meyer’s office. Similarly, as Meyer had offered to bargain
on December 10 at 5 p.m. at his office or at 3 p.m. at the Un-
ion’s office, she agreed to bargain that day at 5 p.m. at the Un-
ion’s office.
Barker asked Meyer for two more dates to bargain in De-
cember, and set forth the dates previously offered in her Octo-
ber 22 letter: December16 and 21. She stated that if those dates
were not acceptable, Meyer should propose other dates in De-
cember, so that there are four dates in December to bargain.
Barker’s letter further stated that she expected Meyer to pro-
vide four dates for bargaining in January in his response to this
letter, noting that she was available every day in January except
January 11 and 19. She concluded by reminding Meyer that he
had not responded to the Union’s request for information con-
tained in her October 22 letter, and asked that the data be pro-
vided before the November 24 session.
Barker testified that the Respondent did not accept either the
December 16 or the 21 date for bargaining which she offered in
her November 13 letter.
On November 23, Meyer confirmed the negotiation session
for the following day. The next day, November 24, Meyer’s
office cancelled the session due to his illness, and noted that
they would meet for bargaining on December 2.
On December 1, Meyer wrote to Barker confirming that the
meeting would be held the following day at the Union’s office
at 5 p.m., and asked her to confirm that arrangement.
That day, Barker wrote, asking that Meyer immediately sup-
ply the information she requested previously. She also asked
Meyer to immediately respond to her letters offering four dates
in each of the months of December and January.
The next day, December 2, Meyer responded, asking that
Barker confirm that their meeting would take place at 5 p.m.
that day at the Union’s office, adding that the information
would be provided at their session that day. He further stated
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 426
that, “as for additional dates, we have already proposed De-
cember 2, 10 and/or 14. I will discuss one additional date in
December with my client.”
Barker replied that day that “you never confirmed any of the
dates. Please confirm now the following dates that we offered:
December 10, 16, 21. We are not available on December 10.”
She added “we need the information we requested asap no later
than noon today.”
The same day, December 2, Meyer wrote to Barker, attach-
ing his prior letter of November 11, offering to meet on No-
vember 24, December 2, 10, and 14. He stated that he was not
available on December 16 or 21. He asked that Barker clarify
her letter in which she stated that she was both available and
not available on December 10. He also asked if she was availa-
ble on December 14. Finally, Meyer noted that he and his client
would be at the Union’s office that night at 5 p.m., and asked
that she advise if she and her client would be present. He con-
cluded by stating that certain requested information would be
provided that evening.
Barker replied that day, stating that she is available on De-
cember 10, but not on December 14, adding that “right now
you are only confirming December 10 as mutually agreed. We
need two additional dates in December from you now.” Barker
asked that Meyer “e-mail the employee info now that we asked
for in July.”
On December 4, Meyer wrote to Barker, stating that he and
his client were at the Union’s office on December 2 at 5 p.m.
for negotiations, but neither Barker nor her client, Cliff Lewis,
were present. He further stated that the Union’s secretary ad-
vised him that neither Barker nor her client were present, nor
did she expect them to be there, and that she attempted to call
Barker and Lewis with no success. Meyer wrote that he and
Barker exchanged multiple emails on December 2 in which he
sought confirmation that the meeting would take place that
evening at the Union’s office at 5 p.m., and that although Bark-
er responded to the messages she did not address the negotia-
tion session. He noted that Barker did not inform him that she
would not be present or that negotiations were canceled by the
Union. He noted that her emails were unclear as to which of his
proposed dates the Union has accepted, if any, noting that she
both accepted and rejected the December 10 date proposed by
him. He concluded by asking her to confirm that she was avail-
able on December 10, at 5 p.m., and asked that that session be
held at his office at 5 p.m. since he was at the Union’s office on
December 2.
Respondent’s official Fein testified that while he and Meyer
waited in the Union’s office, the Union’s secretary told them
that she did not know anything about the negotiations and she
was trying to contact Lewis. She later told them that Lewis
would not be present, and that no one else was available to
conduct the negotiations. They then left.
Barker conceded that neither she nor her client appeared for
negotiations on December 2. Her testimonial explanation of the
agreed-upon December 2 meeting was that she had an outstand-
ing request for information which was first made in July which
included names of employees, their job classifications, rates of
pay, addresses and phone numbers. She stated that she had
repeatedly insisted on the information and it had not been
forthcoming. She further stated that she gave various deadlines
to the Employer for her receipt of the data which were not met.
She sought this information in order to propose agreement con-
cerning issues relating to the information sought, and then pro-
ceed with other issues. She noted that in order to address the
basic information sought such as wages she needed that data in
order to speak with employees to prepare proposals or counter-
proposals. The Union was “adamant that they had to have that
information before negotiating further.” Barker stated that she
insisted in her communications with Meyer that she needed that
information “in advance of negotiating” on December 2, and
did not receive it.
Barker added that “we never confirmed the session that day
. . . I never confirmed that the negotiations would go forward”
while conceding that Meyer and his client appeared that day for
bargaining at the Union’s office. She added that she did not
believe that it was necessary for her to notify the Employer or
its counsel that the Union would not appear at the December 2
session because “it was clear in my e-mails that we needed the
information . . . I asked for the information in advance of the
negotiation and [Meyer] never provided it.” She further stated
that Meyer asked for confirmation that the session would take
place and she did not provide that confirmation. Her attendance
was an “open issue.” She further stated that she did not want to
cancel the December 2 session. Rather, she wanted the infor-
mation and wanted to go forward with the negotiations.
Barker testified that Meyer’s offer to provide the information
that evening was not acceptable because she and Lewis needed
to use the data to prepare for the meeting. She had intended to
speak to the employees and assemble a proposal with the in-
formation. She stated that she had not received the information
notwithstanding that it had been requested in July, and she
“wanted to make progress in the session,” and therefore needed
the information in advance of the meeting.
On December 4, Barker wrote Meyer that he had not provid-
ed four dates in December and four dates in January. She also
advised that she had not received the information, set forth
above, that was requested in July. Barker testified that she did
not receive a response to her request that Meyer supply four
dates for bargaining in December and January.
The December 10 session was scheduled for 5 p.m. at Mey-
er’s office. As Meyer later explained in his letter of January 7,
2010 to the Regional Office, Barker advised him by email that
she and her client were running late but expected to arrive at
5:30 p.m. At about 5:30 p.m., Barker phoned Meyer from her
car, telling him her location on the Long Island Expressway.
Meyer calculated that they were about 25 miles and at least 1
hour from his office. Inasmuch as the negotiations could not
begin before at least 7 p.m., 2 hours after they were scheduled
to begin, he canceled the session.
Barker testified that she left the Union’s office in Long Is-
land City, Queens at about 4:30 p.m. and called Meyer’s office
at about 5:15 p.m., advising that she was on her way, but was
delayed in terrible traffic, adding that she was not certain when
she would arrive. She gave her location and Meyer said that it
would take her too long to get to his office, and that he would
not have his client wait for her. Meyer said that he would call
SIDHAL INDUSTRIES, LLP 427
her the next day to schedule further dates for bargaining. Meyer
did not call her the next day.
Respondent official Fein testified that, if he was driving from
Long Island City, he would have left 2 hours earlier to drive to
Meyer’s office. Fein stated that when Meyer told him where
she was located, Meyer cancelled the session because it would
have taken Barker too long to get to Meyer’s office. Fein stated
generally that he believed that his time was being wasted be-
cause he is present at the sessions “and they don’t show up and
it’s just a horrible waste of time.” He gave his opinion that he
did not believe that the Union has legitimately indicated that it
wants to negotiate with the Employer.
On December 11, Barker wrote to Meyer advising that the
Union offered to bargain on December 16 at 5 p.m., at the Un-
ion’s office, and December 21 at 3 p.m., at Meyer’s office. She
asked that Meyer accept those dates or provide alternative dates
in December, by the close of business December 14. She also
noted that she had not received the information requested pre-
viously, and asked that it be sent by email that day.
On December 14, Meyer replied that “we are unavailable on
the dates proposed by the Union.” Barker replied that day, stat-
ing that he did not provide alternative dates to those she pro-
posed, and she asked that he do so. Barker testified that Meyer
did not offer any alternative dates.
Barker testified that on December 21, Meyer provided the
documents requested. She noted that, although he promised to
bring them to the December 2 session, he did not leave them at
the Union’s office when he was there that day.
2. The events in January 2010
On January 4, 2010, the Regional Office advised Meyer that
the Union asked it to revoke the settlement on the ground that
the Employer “failed to comply with the express terms of the
agreement which requires that it offer the Union future bargain-
ing sessions at a rate of four times per month, until such time
that a contract is reached, a lawful impasse is reached or the
union indicates that it does not want to meet any further.”
The letter stated that based on the evidence presented by the
Union “it appears that the Employer failed to offer the required
number of bargaining sessions for both November and Decem-
ber, 2009. It also appears that the Employer failed to offer any
dates thus far for January, 2010. If the information presented by
the Union is accurate, the Employer is in breach of the Settle-
ment.” The letter asked Meyer to advise the Regional Office by
January 7 if this information was correct.
On January 7, Meyer wrote to the Regional Office, advising
that the Union has “obfuscated, ignored and blatantly disre-
garded Sidhal’s attempts to negotiate in good faith with the
Union,” adding that the parties have discussed at least 10 dates
in November and December for the purposes of scheduling
negotiations. The letter attached the communications set forth
above, specifically, the letters of November 11 and the emails
of December 1 and 2. Meyer further wrote that he had not yet
offered dates in January because the Employer’s principals had
been on vacation and just returned, and others had been in the
hospital and had just been discharged therefrom, but he ex-
pected to “offer the required four dates within the coming
days.”
Meyer’s letter concluded by stating that “based upon the Un-
ion’s willful disregard for Sidhal and its good faith efforts to
negotiate, the Union’s request to revoke the Settlement should
be denied.” He added that “the Union, not Sidhal, has caused
negotiations to stall. Sidhal has made every reasonable effort,
given the Union’s conduct, to meet in good faith and to abide
by the terms of the Settlement. Moreover, no decision should
be made based upon January dates as any alleged breach would
be speculative.”
On January 26, the Regional Director issued the Order Re-
voking the Settlement and reissuing complaint.
3. The scheduled meetings in February and March
Barker testified that on about February 2, Meyer offered four
dates to meet in February. The Union accepted one date, Feb-
ruary 24. The parties did not meet on that day because Meyer
cancelled the session. He did not offer any alternate dates in
February.
On March 3, Meyer wrote to Barker, advising that the Em-
ployer is available to bargain as follows:

March 8, 5:00 p.m. at Meyer’s office.
or
March 9, 3:00 p.m. at the Union’s office.

AND

March 22, 5:00 p.m. at Meyer’s office or 3:00 p.m. at the Un-
ion’s office, depending on the time and location of the earlier
meeting referenced above.
or
March 23, 3:00 p.m. at the Union’s office or 5:00 p.m. at
Meyer’s office, depending on the time and location of the ear-
lier meeting referenced above.

Please confirm which of the above dates are acceptable.

On March 9, Barker wrote to Meyer, accepting his offer to
negotiate on March 22, at 3 p.m., at the Union’s office, and
March 23, at 5 p.m., at Meyer’s office. As of the date of the
hearing, March 16, those meetings had not yet occurred, but
Barker testified that she had not received Meyer’s confirmation
of the two dates that Barker was available.
III. THE RESPONDENT’S ARGUMENTS
The Respondent concedes that the settlement requires that it
offer four dates per month for negotiations. However it argues
that its obligation may be “waived” if the Union indicates that
it does not want to meet any further.
The Employer states that there were at least three instances
where negotiations were scheduled when either the Union left
negotiations, failed to appear or notify the Employer that it
would not be present, or was intentionally late and/or had no
intention of appearing. The Respondent argues that such con-
duct created a “sham” of the negotiations indicating its intent
not to meet any further with the Employer. Accordingly, the
Employer argues that it has not breached the settlement, but
rather the “underlying facts here were based upon the Union’s
malfeasance or nonfeasance.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 428
Analysis and Discussion
Pursuant to the express terms of the settlement agreed to by
the Respondent, it was required to “offer the Union future bar-
gaining sessions at a minimum of four days per month, for a
minimum of two hours each time, absent agreement by the
parties that the meetings be curtailed, until such time that a
collective bargaining agreement is reached, a lawful impasse is
reached or the union indicates that it does not want to meet any
further. . . .”
The “future” bargaining sessions were clearly intended to
mean after the month of October 2009, inasmuch as specific
bargaining dates were set in September and October.
The General Counsel argues that the Respondent failed to
comply with the settlement by not offering four dates to bar-
gain in November and December 2009, and four dates in Janu-
ary, 2010.
As set forth above, on October 22, Barker offered Meyer
three dates in November and four dates in December. The Re-
gional Office wrote to Meyer stating that inasmuch as he had
not responded to the Union’s letter or offered any dates for
bargaining, that the Respondent’s actions constituted noncom-
pliance with the settlement. The letter requested that it cure its
default by either agreeing to the Union’s proposed dates or
offering a minimum of four alternate dates.
Instead, the Respondent, agreed to meet on November 24 or
December 2. In addition, the Respondent offered to meet on
December 10 or 14.
Accordingly, the Respondent did not meet its obligation to
offer to meet on four dates in November and December. It
agreed to meet on 1 day in November or another in December,
and, in addition, agreed to meet on either December 10 or 14.
Thus, the Respondent did not offer to meet on four dates in
either November or December 2009.
On January 4, 2010, the Regional Office advised Meyer that
the Respondent was in breach of the settlement by not offering
to bargain on four dates in November and December. There is
no evidence that the Respondent offered any dates to bargain in
January 2010.
Based on the evidence set forth above, it is clear that the Re-
spondent has not offered the Union four dates to bargain in the
months of November and December 2009, and January 2010. It
has therefore failed to comply with the terms of the settlement.
The Respondent argues the settlement’s provision requiring
that it offer four dates to bargain in each month was waived by
the Union, pointing to the provision that the Respondent’s obli-
gation ends when the “Union indicates that it does not want to
meet any further.” Such indication may be made by word or
actions.
The Respondent does not claim that the Union told it that it
did not want to meet any further. Rather, it relies on certain
conduct by the Union during the course of these unsuccessful
meetings.
However, there is no evidence that any of the Union’s ac-
tions indicated that it did not want to meet any further. The
Union understandably cancelled the first, September 16, meet-
ing due to Barker’s need to attend a court ordered deposition.
The next scheduled meeting was supposed to take place at the
Union’s office on October 21, and Barker, in an effort to ac-
commodate the Employer, agreed to its suggestion that they
meet at Meyer’s office instead. She mistakenly believed that
the meeting was scheduled to begin at 3 p.m., and arrived at
3:20 p.m. The meeting, in fact, had been set to start at 5 p.m.
Apparently not being advised while they waited until at least 5
p.m. that the meeting had actually been set for 5 p.m., and hav-
ing been told by Meyer that his client was not yet there, Barker
and Lewis apparently left at about 5 p.m. The mistake in noting
the meeting time is understandable, and in any event, Barker
and her client were present until at least 5 p.m. when the meet-
ing was supposed to have begun.
In addition, although the Employer asked to meet on De-
cember 2, and Meyer and his client appeared at the Union’s
office that day, the Union reasonably did not appear because, as
Barker testified, she needed certain basic information concern-
ing the employees which had not been received although it had
been requested since July. She credibly testified that such in-
formation was a prerequisite to intelligent bargaining.
On December 10, Barker was delayed in driving to Meyer’s
office due to traffic, and advised that she would be late. Meyer
determined that it would take too long for her to arrive and
cancelled the session while she was en route.
None of these events support a finding that the Union indi-
cated that it did not want to meet any further. The Union can-
celled a meeting due to a court ordered deposition, but Meyer
cancelled a meeting due to his illness. Barker incorrectly noted
the start time at the October 21 meeting and arrived 1-1/2 hours
early, but nevertheless was present at the 5 p.m. scheduled
meeting time. Further, the Union correctly believed that unless
it had the requested information, bargaining would not be pro-
ductive on December 2. Finally, Barker may have miscalculat-
ed the time necessary to travel to Long Island during rush hour.
None of these actions by the Union were intended to delay or
postpone bargaining. In fact, the Union made extra efforts
throughout this period of time to encourage the Respondent to
agree to meet. Thus, after no meetings took place in September
and October, Barker offered three dates in November and four
in December. Instead, Meyer agreed only to meet on November
24 or December 2, and on December 10 or 14. Thus, in re-
sponse to Barker’s offer of seven dates, Meyer agreed to meet
on only two dates. She asked him to provide two more dates in
November.
Further, after agreeing to meet on one date in November and
two in December, Barker asked for another two dates in De-
cember and January. She repeatedly reminded Meyer of the
Respondent’s obligation to offer to meet four dates each month.
She also asked him to provide additional dates, even noting that
she was available every day in January except two.
Accordingly, the Respondent has not shown that the Union
has indicated that it did not want to meet any further. On the
contrary, the evidence establishes that the Union offered dates
to meet although it was not obligated to do so, traveled to meet-
ings, and demanded that the Respondent offer additional dates
for bargaining.
Based on the above, I find that the Respondent failed to
comply with the terms of the settlement by not offering the
Union four dates per month to meet in the months of November
SIDHAL INDUSTRIES, LLP 429
and December 2009, and January 2010, and that the Respond-
ent has not cured its default.
The settlement provides that in the event of the Respondent’s
noncompliance with its terms, the amended complaint be reis-
sued, and that the Respondent waives any answer thereto and
the right to raise any defenses to the allegations of the amended
complaint, and that the allegations in the amended complaint
may be deemed to be true by the Board.
Ruling on the Order Revoking Settlement
FINDINGS OF FACT
I find that all of the allegations of the amended complaint are
deemed to be true, as set forth below
I. JURISDICTION
The Respondent, a domestic limited liability corporation,
having its principal office and place of business located at176
Front Street, Hempstead, New York, has been engaged in the
wholesale distribution of janitorial and service supplies. During
the past 12-month period, the Respondent has purchased and
received at its Hempstead facility, goods and materials valued
in excess of $50,000 directly from points outside New York
State. At all material times, the Respondent has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. I find that at all material times the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
1. (a) The charge in Case 29–CA–29608 was filed by the
Union on May 12, 2009, and served by regular mail on Re-
spondent on or about May 14, 2009.
(b) The charge in Case 29–CA–29637 was filed by the Un-
ion on June 3, 2009, and served by regular mail on Respondent
on or about June 9, 2009.
2. The following employees of the Respondent, the unit,
constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:

All full-time and part-time drivers and warehouse employees
employed at Respondent’s Hempstead facility, excluding of-
fice clerical employees and supervisors as defined in the Na-
tional Labor Relations Act.

3. On February 29, 2008, the Union was certified as the ex-
clusive collective-bargaining representative of the unit. At all
material times, the Union has been the designated collective-
bargaining representative of the unit.
4. At all material times, the Union, by virtue of Section 9(a)
of the Act, has been the exclusive representative of the unit, for
the purposes of collective bargaining.
5. In or about May 2008, Respondent and the Union com-
menced negotiations for an initial collective-bargaining agree-
ment to cover the employees in the unit described above in
paragraph 1.
6. On or about April 6, 10, 14, 23, and 29, and May 5, 2009,
by electronic mail, and on or about April 6 and 10, 2009, ver-
bally, the Union requested further bargaining for an initial con-
tract to cover the unit described above in paragraph 2.
7. Since about April 6, 2009, Respondent has failed and re-
fused to meet and bargain with the Union as the exclusive col-
lective-bargaining representative of the unit described above in
paragraph 2.
8. (a) On or about April 8 and 9, 2009, Samuel Gonzalez,
who had previously worked for Respondent as a driver, re-
quested that Respondent employ him as a warehouse employee.
(b) Since on or about April 8 and 9, 2009, Respondent has
refused to hire or consider for hire Gonzalez as a warehouse
employee.
9. Respondent engaged in the conduct described above in
paragraph 8(b) because Gonzalez joined and assisted the Union
and engaged in concerted activities, and to discourage employ-
ees from engaging in these activities.
CONCLUSION OF LAW
By the conduct described above, the Respondent has been
failing and refusing to bargain collectively with the representa-
tive of its employees in violation of Section 8(a)(1) and (5) of
the Act, and has been discriminating in regard to the hire or
tenure or terms or conditions of employment of its employees,
thereby discouraging membership in a labor organization in
violation of Section 8(a)(1) and (3) of the Act.
The unfair labor practices of Respondent, described above,
affect commerce within the meaning of Section 2(6) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily refused to hire or
consider for hire Samuel Gonzalez as a warehouse employee, it
must make him whole for any loss of earnings and other bene-
fits suffered as a result of the Respondent’s unlawful actions
against him.
The Board has decided a number of cases, cited below, in
which its reinstatement and backpay orders were based on the
identical remedial terms set forth in the settlement involved
herein.
As set forth above, the settlement provided, that in the event
of noncompliance with any of its terms, the Board could “issue
an Order providing a full remedy for the violations found as is
customary to remedy such violations, including, but not limited
to the remedial provisions of this Settlement and liquidated
damages.” Thus, it is appropriate to provide the “customary”
remedies of reinstatement, full backpay, expungement of the
Respondent’s personnel records, and notice posting. L.J. Logis-
tics, Inc., 339 NLRB 729, 730 (2003).
Regarding backpay due to Gonzalez, I note that certain let-
ters in evidence state that the Respondent has paid Gonzalez
the sum of $2700, less deductions, under the terms of the set-
tlement covering backpay due from the date of the Respond-
ent’s refusal to hire or consider him for hire to the effective
date of the settlement. To the extent that the Respondent has
paid this sum, the Respondent will be credited with any amount
already paid. Vishal Construction, Inc., 354 NLRB No. 43, slip
op. at 3 fn. 4. (2009) (not reported in Board volumes).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 430
In addition, because I shall order the Respondent to provide
the customary remedy of full backpay, the applicable backpay
period will commence on September 16, 2009, the day the
Regional Director approved the settlement. It is necessary to
impose this limitation to prevent an unintended double recov-
ery for the period running from the date that Samuel Gonzalez
was not hired or considered for hire to the effective date of the
settlement. Manhattan Health Clean, 353 NLRB 1037, 1039
fn. 4 (2009); BSC Development Buf, LLC, 353 NLRB No. 63,
slip op. at 5 (2008) (not reported in Board volumes).
The additional backpay due Samuel Gonzalez shall be com-
puted as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest thereon to be computed in the manner
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987). In the Order Revoking Settlement Agreement, the Gen-
eral Counsel seeks interest computed on a compounded, quar-
terly basis for any backpay or other monetary awards. I deny
the General Counsel’s request as that is not the current law.
Cox Ohio Publishing, 354 NLRB 271 (2009); Glen Rock Ham,
352 NLRB 516, 516 fn. 1 (2008), citing Rogers Corp., 344
NLRB 504 (2005).
Although the settlement indicates that Gonzalez waived his
right to reinstatement, the settlement agreement has been set
aside, and therefore the waiver of reinstatement is no longer in
effect. Manhattan Health Clean, above. Thus, I shall order the
Respondent to offer Gonzalez immediate employment as part
of the customary remedy for the Respondent’s unlawful refusal
to hire or consider him for hire. I shall order the Respondent to
offer Samuel Gonzalez immediate employment in the ware-
house job for which he applied, or if such job no longer exists,
in a substantially equivalent job, without prejudice to his sen-
iority or other rights and privileges, dismissing, if necessary,
any employees hired to fill the position for which he applied.
Further, having found that the Respondent violated Section
8(a)(5) of the Act by failing and refusing to bargain collectively
and in good faith with the Union as the exclusive collective-
bargaining representative of the unit employees, by failing to
meet and bargain with the Union, I will order that the Respond-
ent, on request, meet and bargain collectively and in good faith
with the Union with respect to wages, hours, and other terms
and conditions of employment, and if an understanding is
reached, to embody the understanding in a signed agreement.
There is evidence that the Respondent issued an expunge-
ment letter and has posted a notice to employees. To the extent
that this has been done, an additional expungement letter need
not be sent. However, inasmuch as the settlement has not been
complied with, the notice to employees must be posted again
because the notice in the settlement differs in material respects
from the notice that is warranted in view of my above findings
and Order. Phoenix Finishing, Inc., 354 NLRB No. 64, slip op.
at 3 fn. 4 (2009) (not reported in Board volumes).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
ORDER
The Respondent, Sidhal Industries, LLP, Hempstead, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in good
faith, by failing and refusing to meet and bargain with Local
813, International Brotherhood of Teamsters, as the exclusive
collective-bargaining representative of the employees in the
following unit:

All full-time and part-time drivers and warehouse employees
employed at Respondent’s Hempstead facility, excluding of-
fice clerical employees and supervisors as defined in the Na-
tional Labor Relations Act.

(b) Refusing to hire or consider for hire Samuel Gonzalez as
a warehouse employee.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain collectively and in good faith with
the Union as the exclusive collective-bargaining representative
of the unit employees and, if an understanding is reached, em-
body the understanding in a signed agreement.
(b) Make Samuel Gonzalez whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of the
Decision.
(c) Within 14 days from the date of the Board’s Order, offer
Samuel Gonzalez employment in the warehouse position he
applied for, without prejudice to his seniority or any other
rights or privileges previously enjoyed, dismissing, if neces-
sary, any employees hired to fill the position for which he ap-
plied. His waiver of reinstatement is no longer in effect.
(d) Within 14 days from the date of the Board’s Order, if it
has not already done so, remove from its files any reference to
the unlawful refusal to hire or consider for hire Samuel Gonza-
lez, and within 3 days thereafter notify him in writing that this
has been done and that the refusal to hire him or consider him
for hire will not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional 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 rec-
ords, 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 fa-
cility in Hempstead, New York, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
Board and all objections to them shall be deemed waived for all pur-
poses.
4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-

SIDHAL INDUSTRIES, LLP 431
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 con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 April 6, 2009.
(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.