Sidhal Industries, LLP

National Labor Relations Board - Administrative Judge Opinions

Apr 26, 2010

29-CA-029608 (N.L.R.B. Apr. 26, 2010)

JD(NY)-15-10
Hempstead, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
SIDHAL INDUSTRIES, LLP
and Case Nos. 29-CA-29608
29-CA-29637
LOCAL 813, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Tara O’Rourke, Esq., Brooklyn, NY,
for the General Counsel.
Jane Lauer Barker, Esq., (Pitta & Giblin, LLP),
New York, NY, for the Union.
Jeffery A. Meyer, Esq. (Kaufman, Dolowich,
Voluck, & Gonzo, LLP), Woodbury, NY, for the Respondent.
DECISION
Statement of the Case
STEVEN DAVIS, Administrative Law Judge:
Based upon charges filed by Local 813, International Brotherhood of Teamsters (Union)
in Case No. 29-CA-29608 and Case No. 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 material allegations of the complaint.
On September 16, 2009, the Director approved a bilateral Settlement Agreement
(Settlement) executed by the Respondent, resolving the allegations made in the amended
complaint.
On January 26, 2010, the Director issued an Order Revoking Settlement and Re-
Issuance of Consolidated Amended Complaint and Notice of Hearing. The Order stated that the
Respondent has failed to comply with certain aspects of the Settlement, 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 default, the 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 limited to those paragraphs of the
Order which set forth its alleged failure to comply with certain terms of the Settlement. The
Respondent 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.
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On the entire record, including my observation of the demeanor of the witnesses, I make
the following:1
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 Respondent, 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 allegations 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 findings of fact, conclusions of law, and
an Order on the allegations 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
received notice to cure said default. The Board may then, without
necessity of trial or any other proceeding, find all allegations 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 violations, 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 judgment was not filed, and a hearing was held on the
disputed issue of whether the Respondent failed to comply with the Settlement.
B. Substantive Terms

1 Counsel for the Respondent made an opening statement, and General Counsel made
closing argument. No party filed a brief.
2 The Settlement is in evidence as G.C. Ex. 1(q).
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As material here, the Settlement Agreement states that the Respondent 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 bargaining 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 sessions 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 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 3:00 p.m.
at the Union’s office. On October 20, Meyer e-mailed Barker asking her to confirm that they
would be meeting the following day at 5:00 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 e-mail
stated that the session would begin at 5:00 p.m. In fact, she testified that the meeting was, in
fact, scheduled for 3:00 p.m. because the Settlement set the meeting for 3:00 p.m. She stated
that, nevertheless she was at Meyer’s office at 5:00 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
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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 meetings on September 16 and
October 21, the four “future” sessions per month referred to meetings in November and
thereafter.
1. The Meetings in November and December
On October 22, Barker wrote to Meyer, requesting bargaining 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.
Barker’s letter requested certain information including a current 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, advising 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
bargaining sessions. The Regional Office advised Meyer that the Settlement 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:
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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 earlier
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 earlier
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 four 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 four days in the month of November,
but she did not agree to one day only. She stated that her letter asked Meyer for additional
dates in November.
Barker agreed to bargain on November 24 at 3:00 pm. or 5:00 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 3:00 p.m.
at the Union’s office, her agreement was to bargain at 3:00 p.m. that day at Meyer’s office.
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Similarly, as Meyer had offered to bargain on December 10 at 5:00 p.m. at his office or at 3:00
pm. at the Union’s office, she agreed to bargain that day at 5:00 p.m. at the Union’s office.
Barker asked Meyer for two more dates to bargain in December, and set forth the dates
previously offered in her October 22 letter: December16 and 21. She stated that if those dates
were not acceptable, Meyer should propose other dates in December, so that there are four
dates in December to bargain.
Barker’s letter further stated that she expected Meyer to provide 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 contained in her October 22 letter, and asked
that the data be provided before the November 24 session.
Barker testified that the Respondent did not accept either the December 16 or the
December 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 5:00 p.m., and asked her to confirm that arrangement.
That day, Barker wrote, asking that Meyer immediately supply 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 5:00 p.m. that day at the Union’s office, adding that the information
would be provided at their session that day. He further stated that, “as for additional dates, we
have already proposed December 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, attaching his prior letter of
November 11, offering to meet on November 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
available on December 14. Finally, Meyer noted that he and his client would be at the Union’s
office that night at 5:00 p.m., and asked that she advise if she and her client would be present.
He concluded by stating that certain requested information would be provided that evening.
Barker replied that day, stating that she is available on December 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
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office on December 2 at 5:00 p.m. for negotiations, but neither Barker nor her client, Cliff Lewis,
were present. He further stated that the Union’s secretary advised 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 e-mails
on December 2 in which he sought confirmation that the meeting would take place that evening
at the Union’s office at 5:00 p.m., and that although Barker responded to the messages she did
not address the negotiation 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 e-mails 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 available on December 10, at 5:00 p.m., and asked that that session be
held at his office at 5:00 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
outstanding 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 concerning issues relating
to the information sought, and then proceed 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 counterproposals. 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 information 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 information. 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 provided four dates in December
and four dates in January. She also advised that she had not received the information, set forth
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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 5:00 p.m. at Meyer’s office. As Meyer later
explained in his letter of January 7, 2010 to the Regional Office, Barker advised him by e-mail
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 one hour from his office. Inasmuch
as the negotiations could not begin before at least 7:00 p.m., two hours after they were
scheduled to begin, he canceled the session.
Barker testified that she left the Union’s office in Long Island 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 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 two hours 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 because
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 5:00 p.m. at the Union’s office, and December 21 at 3:00 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 previously, and asked that it be sent by e-mail that day.
On December 14, Meyer replied that “we are unavailable on the dates proposed by the
Union.” Barker replied that day, stating that he did not provide alternative dates to those she
proposed, 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 bargaining 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
December, 2009. It also appears that the Employer failed to offer any dates thus far for January,
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2010. If the information presented by the Union is accurate, the Employer is in breach of the
Settlement.” 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 disregarded Sidhal’s attempts to negotiate in good faith with
the Union,” adding that the parties have discussed at least ten 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 e-mails 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 expected to “offer the required four dates within the
coming days.”
Meyer’s letter concluded by stating that “based upon the Union’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 Director issued the Order Revoking 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, February 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 Employer 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 Union’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 earlier 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 3:00
p.m. at the Union’s office, and March 23 at 5:00 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
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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 conduct 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.”
Analysis and Discussion
Pursuant to the express terms of the Settlement agreed to by the Respondent, it was
required to “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 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 bargain in November and December, 2009, and four dates in
January, 2010.
As set forth above, on October 22, Barker offered Meyer three dates in November and
four dates in December. The Regional 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 noncompliance 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 December 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 one day in November or another in December,
and, in addition, agreed to meet on either December 10 or December 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 Respondent has not offered
the Union four dates to bargain in the months of November and December, 2009 and January,
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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
obligation 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 actions indicated that it did not
want to meet any further. The Union understandably cancelled the first, September 16, meeting
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
accommodate 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 3:00 p.m., and arrived at
3:20 p.m. The meeting, in fact, had been set to start at 5:00 p.m. Apparently not being advised
while they waited until at least 5:00 p.m. that the meeting had actually been set for 5:00 p.m.,
and having been told by Meyer that his client was not yet there, Barker and Lewis apparently left
at about 5:00 p.m. The mistake in noting the meeting time is understandable, and in any event,
Barker and her client were present until at least 5:00 p.m. when the meeting was supposed to
have begun.
In addition, although the Employer asked to meet on December 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 concerning the employees which had not
been received although it had been requested since July. She credibly testified that such
information 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 indicated that it did not want to
meet any further. The Union cancelled 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 1½ hours early, but nevertheless was present at the 5:00 p.m. scheduled
meeting time. Further, the Union correctly believed that unless it had the requested information,
bargaining would not be productive on December 2. Finally, Barker may have miscalculated 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 December 14. Thus, in response 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 December and January. She repeatedly reminded Meyer of the
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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 meetings, 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
and December, 2009, and January, 2010, and that the Respondent has not cured its default.
The Settlement provides that in the event of the Respondent’s non-compliance with its
terms, the amended complaint be reissued, 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 twelve 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 employer 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 No. 29-CA-29608 was filed by the Union on May 12, 2009,
and served by regular mail on Respondent on or about May 14, 2009.
(b) The charge in Case No. 29-CA-29637 was filed by the Union on June 3, 2009, and
served by regular mail on Respondent on or about June 9, 2009.
2. The following employees of the Respondent, herein called the Unit, constitute a unit
appropriate for the purposes of collective bargaining 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 office
clerical employees and supervisors as defined in the National
Labor Relations Act.
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3. On February 29, 2008, the Union was certified as the exclusive 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 commenced negotiations for an
initial collective bargaining agreement to cover the employees in the Unit described above in
paragraph 1.
6. On or about April 6, April 10, April 14, April 23, April 29 and May 5, 2009, by electronic
mail, and on or about April 6 and 10, 2009, verbally, the Union requested further bargaining for
an initial contract to cover the Unit described above in paragraph 2.
7. Since about April 6, 2009, Respondent has failed and refused to meet and bargain
with the Union as the exclusive collective 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, requested 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
employees from engaging in these activities.
Conclusions of Law
By the conduct described above, the Respondent has been failing and refusing to
bargain collectively with the representative 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 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 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
benefits 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
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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. Logistics, Inc., 339 NLRB 729, 730 (2003).
Regarding backpay due to Gonzalez, I note that certain letters in evidence state that the
Respondent has paid Gonzalez the sum of $2,700, less deductions, under the terms of the
Settlement covering backpay due from the date of the Respondent’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).
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 recovery 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 No. 104, slip op. at 3, fn. 4 (2009); BSC Development Buf, LLC, 353 NLRB No. 63,
slip op. at 5 (2008).
The additional backpay due Samuel Gonzalez shall be computed 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 General Counsel seeks interest computed on a compounded,
quarterly 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 No. 32, slip op. at fn. 5
(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 warehouse job for which he applied, or if such job no
longer exists, in a substantially equivalent job, without prejudice to his seniority 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 Respondent, 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 expungement letter and has posted a
Notice to Employees. To the extent that this has been done, an additional expungement letter
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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).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
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 office
clerical employees and supervisors as defined in the National
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 effectuate 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,
embody 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 necessary, any employees hired to fill
the position for which he applied. 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

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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Gonzalez, 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 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 Hempstead, New
York, 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
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 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.
Dated, Washington, D.C., April 26, 2010.
____________________
Steven Davis
Administrative Law Judge

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 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)-15-10
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT fail 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 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 office
clerical employees and supervisors as defined in the National
Labor Relations Act.

WE WILL NOT 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 representative of the unit
employees and, if an understanding is reached, embody the understanding in a signed
agreement.
WE WILL, if we have not already done so, pay Samuel Gonzalez $2,700, less deductions, in
accordance with the September 16, 2009 Settlement Agreement, and make him whole for any
loss of earnings and other benefits suffered since September 16, 2009, as a result of our refusal
to hire him or consider him for hire as a warehouse employee.
WE WILL 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 necessary, any employees hired to fill
the position for which he applied. His waiver of reinstatement is no longer in effect.
JD(NY)-15-10
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 unlawful refusal to hire or consider for hire Samuel
Gonzalez, 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
(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.