Allans Bakery

National Labor Relations Board - Administrative Judge Opinions

Jun 16, 2011

29-CA-030470 (N.L.R.B. Jun. 16, 2011)

JD(NY)–20–11
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
1109 NOSTRAND AVENUE BAKERY INC.,
d/b/a ALLAN’S BAKERY
and Case No. 29-CA-30470
LOCAL 53, BAKERY, CONFECTIONARY,
TOBACCO WORKERS & GRAIN MILLERS’
INTERNATIONAL UNION, AFL-CIO 1
Tara O’Rourke, Esq., and Genaira
Tyce, Esq., Counsel for the General Counsel
Bruce J. Cooper, Esq., Counsel
for the Charging Party
Sharon Smith Fernandez and
Ronald Davis for the Respondent
DECISION
Statement of the Case
Raymond P. Green, Administrative Law Judge. I heard this case in Brooklyn, New York
on May 17, 2011. The charge in this case was filed on November 4, 2010 and the Complaint
was issued on February 24, 2011. In substance, the Complaint alleges as follows:
1. That on March 15, 2005, Local 3, Bakery, Confectionery, Tobacco Workers and Grain
Millers International Union, AFL-CIO, was certified by the Board as the bargaining
representative of certain employees of the Respondent.
2. That the Respondent and Local 3 have been parties to a collective bargaining
agreement that was effective for the period from March 1, 2007 to February 28, 2010.
3. That in April 2010, Local 3 merged with Bakery, Confectionery, Tobacco Workers and
Grain Millers International Union, AFL-CIO, Local 50 and became Bakery, Confectionery,
Tobacco Workers, and Grain Millers International Union, AFL-CIO, Local 53, herein called Local
53.
4. That on June 21, 2010, Local 53 and the Respondent reached a full and complete
agreement to be effective from March 1, 2010 to February 28, 2013.

1 Although the charge was originally filed in the name of Local 3, Bakery, Confectionary, Tobacco
Workers & Grain Millers’ International Union, AFL-CIO, that no longer exists as a separate entity. As
alleged in the Complaint and not denied by the Respondent’s Answer, Local 3 merged with Local 50 of
this same international union to form Local 53. Accordingly, I have modified the caption of the case to
reflect this change.
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5. That since June 21, 2010, the Respondent has failed to honor the terms and
conditions set forth in the new agreement by among other things, failing to pay employees the
agreed upon wage rate and by failing to pay employees holiday pay for Martin Luther King Jr.
Day.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the arguments filed, I make the following
Findings of Fact
I. Jurisdiction
The Complaint alleges that the Respondent, with a place of business at 1109 Nostrand
Avenue, Brooklyn, New York is engaged in the production and retail sale of baked goods and
other food items. It further alleges that during the past twelve month period, which is
representative of its operations generally, the Respondent has derived gross annual revenues in
excess of $500,000 and that it purchased and received at its Brooklyn facility, goods and
materials valued in excess of $5,000 directly from suppliers located outside the State of New
York. In response to the Complaint, the Company submitted a letter setting forth its position
regarding the allegations of the Complaint. In this letter, the Respondent did not deny the
jurisdiction allegations set forth at paragraphs 3 and 4 of the Complaint and they are therefore
deemed to be admitted to be true. Accordingly, I conclude that the Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The Complaint further alleges, the Respondent’s Answer does not deny and I find that
the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
The Company is a bakery specializing in Caribbean products. According to the
testimony of Sharon Smith, her mother Gloria Smith is the owner. Sharon Smith testified that
she and her sister are employees. At the time of the hearing, according to Sharon Smith, her
mother was 71 years old, drew a salary and was intermittently involved with the running of the
business.
On March 15, 2005, Local 3 was certified by the Board as the collective bargaining
representative in the following unit of employees:
All full-time and regular part-time production employees, including oven workers,
mixers, finishers, cleaners and packers, but excluding retail employees, head
baker, clerical employees, managerial employees, guards and supervisors as
defined in Section 2(11) of the Act.
At the time of this hearing, there were about nine part-time employees in the unit.
The Company and the Union executed a collective bargaining agreement that ran from
March 1, 2007 to February 28, 2010. Sharon Smith signed this contract on behalf of the
Respondent as the Company’s Vice President and Narcisco Martas, who was the Union’s
President at that time, signed on behalf of the Union. During the negotiations for this contact,
the Company was represented by Sharon Smith, Ronald Davis and an attorney. Except for one
occasion when Gloria Smith was introduced to Martas at a bargaining session, she did not
otherwise attend or participate in those negotiations.
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Commencing on March 15, 2010, the parties met to negotiate a new agreement to
replace the contract that expired on March 1, 2010. The evidence shows that there were three
meetings where negotiations took place and one meeting that was scheduled but cancelled.
The Union’s negotiating team consisted of union president Martas, Abelardo Aleman, a
business agent, and Joseph Weinbel the Union’s Secretary-Treasurer. In addition, the Union
invited some employees to sit in on some of the negotiations. The Company was represented
by Sharon Smith and Ronald Davis, who according to Smith was essentially a volunteer who
provided this service for free. Gloria Smith did not appear during any of the meetings and the
credible testimony of all the Union’s witnesses was that at no time, did the Respondent’s
representatives state that her approval was necessary in order to finalize an agreement. 2 The
credited evidence shows that except for specific demands brought up by both sides, the parties
entered into negotiations with the understanding that the terms and conditions of the existing
contract would be continued.
At the meeting that was held on March 15, 2010, the Union presented its initial
demands. The Company agreed at this point that any new contract would have a three year
term. In addition, the evidence shows that on this date or at the next meeting, the Union agreed
to the Company’s demand that it should not have to pay wages when employees could not
come to work in a snow emergency. The Union’s position was that any new contract should be
retroactive to the expiration date of the old contract; i.e. March 1, 2010.
The next meeting took place on April 19, 2010. The evidence shows that at this meeting,
the Company agreed that any new contract should contain a union check off provision. (The
previous contract did not contain such a provision). The Union’s witnesses testified that at this
meeting, Davis agreed that any pay increases agreed to would be retroactive to March 1, 2010.
In addition to the above, the evidence shows that the Union was demanding Martin Luther King
Day as an extra holiday and that in response, Davis proposed switching an existing holiday,
(Boxer’s Day) 3 to Martin Luther King Day. The Union did not, at this time, agree to the switch;
instead demanding an additional day.
A meeting was scheduled for May 10 but it was called off by the Company. The reason
is not relevant.
The final meeting took place on June 21, 2010. Sharon Smith and Ronald Davis were
both present for the Company at this meeting. At the start of the meeting, the Union’s
representative, (Martas), modified his wage demand by decreasing it from a $1.00 raise for
each year to a $.50 raise for each year. This was rejected by the Company. The Union then
reduced its wage demand to $.25, $.35 and $.45 for each year of a three year agreement. This
too was rejected by the Company. The credible evidence shows that after a caucus, Davis in
the presence of Smith, came back to the table and offered raises of $.25 for the first year; $.30
for the second year and $.35 for the third year. The credited testimony also shows that after
another caucus, the Union representatives came back and accepted the Company’s offer.
Finally, the credited evidence shows that the Union accepted the Company’s proposal to shift
Boxer’s Day to Martin Luther King Day with no additions to the total number of existing holidays.

2 In this regard, Sharon Smith testified for the Respondent and was its only witness. Her testimony
was not corroborated despite the fact that Ronald Davis was at the hearing and acted as the
Respondent’s representative. He is an accountant and not an attorney.
3 Boxer’s Day, which is the day after Christmas, is a holiday in some countries that have been part of
the British Empire.
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The credited testimony of the Union’s witnesses shows that after they accepted the
Company’s offer, the parties reviewed what had previously been agreed to, (snow days and
dues check off), and agreed that all other terms and conditions contained in the expired contract
would remain the same. According to the credited testimony of Martas, he agreed that the
effective date of the contract should not be retroactive to March 1, 2010 but should commence
as of June 21, 2010, commensurate with when the agreement was made. According to the
corroborated testimony by the Union’s witnesses, the parties met upstairs in Davis’ office where
they all shook hands and where Davis said they “had a deal.”
On July 23, 2010, the Union delivered to Davis’ office a draft of the contract that it had
prepared.
At the end of July 2010, while the Union was having a convention in Las Vegas, Union
representative Aleman received a phone call from Davis who said that he was not going to sign
the contract because he had an issue with layoffs and retroactivity. Aleman told Davis that he
would set up a meeting.
On August 11, 2010, Davis came to the Union’s office without Sharon Smith or any other
company official. Martas testified that Davis sought to renegotiate the contract insofar as the
effective date of the wage increase. Martas also testified that when Davis said that the
Company was going to lay off two employees, Martas told him that the contract required the
Company to retrain them for another department. Davis stated that he would not execute the
contract and Martas said that he was not willing to change what had already been agreed to.
As noted above, Davis did not testify.
Martas testified that on August 11, 2011, he also spoke to Sharon Smith on the phone
and she pointed out that the proffered contract contained errors relating to snow days, the
swapping of holidays and the probationary period. He acknowledged that there were some
errors and told her that any errors would be corrected.
According to Martas, instead of forwarding a corrected copy of the contract, he decided
to file an unfair labor practice charge because he then received a faxed letter from Sharon
Smith dated August 11, raising additional issues and claiming that no agreement had been
reached. Thus, instead of merely pointing out the errors in the proffered contract, Smith
asserted that any new contract should contain no wage increases and that the number of
holidays should be reduced from the existing four to three. I note that in this letter, Sharon
Smith made no claim that any contract would have to be approved by her mother.
III. Analysis
The General Counsel presented four witnesses who essentially corroborated each other
as what took place at the negotiations. On the other hand, the Respondent presented only the
testimony of Sharon Smith. Smith’s version of these events was not corroborated by Ronald
Davis who was at all of the meetings and who was present and available to testify. I therefore
am going to credit the Union witnesses.
At the outset of the hearing, Mr. Davis claimed that the parties did not reach agreement
because they had not reached an agreement on snow days, holidays and retroactivity. Yet it is
clear from everyone’s testimony that the snow day issue was a company demand that the union
acceded to at the outset. Moreover, the credited testimony was that the parties did agree to
shift an existing holiday, Boxer’s Day to Martin Luther King Day and that the Union and the
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Company agreed that any wage increases would begin on June 21, 2010, (the date of the
agreement) instead of being retroactive to March 1, 2010.
The Respondent asserts that no agreement was reached because it was not approved
by Gloria Smith. I do not agree. It is clear to me that the Respondent put forth only Sharon
Smith and Ronald Davis as its representatives during the negotiations and that it did not
represent that Gloria Smith’s approval was required in order to reach an agreement. Sharon
Smith had signed the previous contract and given all the circumstances, it is clear to me that
she and Davis were authorized to bargain on behalf of the Company. At the very least, she and
Davis were held out to the Union as the Company’s bargaining representatives and in the
absence of any qualification as to their authority; they should be construed as having apparent
authority. See Hawaiian Paradise Park Corp. v. Friendly Broadcasting Co., 414 F.2d 750, 756
(9th Cir. 1969); Metco Products v. NLRB, 884 F.2d 156. In the latter case, the Court stated:
In the context of collective bargaining, the NLRB has adopted a clear and
simple rule regarding the creation of apparent authority on the part of a labor
negotiator. The NLRB has long held that "when an agent is appointed to
negotiate a collective-bargaining agreement that agent is deemed to have
apparent authority to bind his principal in the absence of clear notice to the
contrary. University of Bridgeport, 229 NLRB 1074. See also Aptos Seascape
Corporation l94 NLRB 540 (1971), Medical Towers Limited, 289 NLRB No. 123
(l987) enfd. granted without opinion, Medical Towers Ltd. v NLRB, 862 F.2d
309 (3rd Cir. l988). The laudable purpose of this rule is to lessen the
opportunities for ambiguity and confusion by requiring a party who chooses to
negotiate through an agent to disclose any limitations on the agent's authority.
Here Metco does not dispute the fact that neither Saperstein nor any other
company official ever stated to the union the alleged limitations on Pearlman's
authority. Metco's omission thus raises a rebuttable presumption in favor of the
reasonableness of the Union's perception that Pearlman had full authority to
enter into an agreement on Metco's behalf.
In my opinion, the credible evidence taken as a whole, shows that the Union and the
Company reached a full agreement on June 21, 2010. At that meeting, after making reductions
in its wage increase demands, the Union ultimately accepted the Respondent’s offer. Also
instead of having the contract be retroactive to the expiration date of the previous contract, the
Union essentially agreed that there would be no retroactivity at all, inasmuch as the parties
agreed that the terms would go into effect on the date that the agreement was reached. (June
21, 2010).
The parties had previously agreed that the terms of the preceding contract would be
continued unless explicitly modified. During the previous meetings, the parties had already
agreed that there would be a shifting of one holiday; that the employer would have the right to
not pay employees if the premises were closed due to snow; and that the employer would check
off union dues. Therefore, with the final agreements that were made on June 21, relating to
wage increases and the effective date of their implementation, the parties concluded a full and
complete collective bargaining agreement.
In my opinion, the General Counsel has established that the parties had reached a
meeting of the minds. Accordingly, having reached a full agreement, the Respondent (and the
Union), is required to implement the terms of that agreement. Its subsequent refusal to do so,
therefore constitutes a violation of Section 8(a)(1) & (5) of the Act. Carpenters Local 405, 328
NLRB 788, 794 (1999).
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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 General Counsel is not alleging that the Respondent has failed to execute the
contract that was proffered by the Union. The reason is that the proffered agreement contained
errors that did not accurately reflect the terms that had been agreed upon. And although the
Union’s representative expressed the willingness to correct the mistakes, he did not do so;
instead filing this unfair labor practice charge. I note though, that the failure to send a corrected
copy does not detract from the fact that an agreement was, in fact, reached. Martas' decision
on this score is explained by the Employer’s stated intention on June 21, to withdraw from the
agreement that had already been made.
It is therefore recommended that the Respondent be ordered to comply with and
implement the terms and conditions of the agreement that was consummated on June 21, 2010.
This agreement consists of the terms set forth in the previous contract (March 1, 2007 to
February 28, 2010), plus (a) a dues check off provision; (b) a provision permitting the employer
to not pay employees when the facility is closed due to snow; (c) a switch in holidays from
Boxer’s Day to Martin Luther King Day; and (d) wage increases in the amount of $.25 for the
first year; $.30 for the second year and $.35 for the third year. Further, the effective date for
implementation of the agreement is June 21, 2010.
To the extent that any employees have incurred a loss in wages as a consequence of
the Employer’s failure to implement the agreement, it recommended that the Respondent make
those employees whole for any loss of earnings and other benefits suffered as a result of the
discrimination against them. Backpay shall be computed in accordance with F.W. Woolworth
Co., 90 NLRB (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283
NLRB 1187 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 4
ORDER
The Respondent, 1109 Nostrand Avenue Bakery Inc., d/b/a Allan’s Bakery, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Refusing to implement and abide by the agreement that was entered into with Local
53, Bakery, Confectionary, Tobacco Workers & Grain Millers’ International Union, AFL-CIO on
June 21, 2010.

4 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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(b) In any like or related manner interfering with, restraining or coercing employees in the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Implement the agreement that was made with the Union on June 21, 2010 and abide
by its terms for the duration of that agreement.
(b) Make whole employees for any loss of earnings and other benefits suffered as a
result of the Respondent failure to implement the agreement that was reached on June 21,
2010.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(d) Within 14 days after service by the Region, post at its Brooklyn, New York facility,
copies of the attached notice marked “Appendix” 5 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. 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 customarily 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 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 June 21,
2010.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., June 16, 2011.
_____________________
Raymond P. Green
Administrative Law Judge

5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
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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 the National Labor Relations Act and has
ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT refuse to implement and abide by the terms of an agreement that we reached with Local
53, Bakery, Confectionary, Tobacco Workers & Grain Millers’ International Union, AFL-CIO on June 21,
2010.
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the rights
guaranteed to them by Section 7 of the Act.
WE WILL implement the agreement that was made with the Union on June 21, 2010 and abide by its
terms for the duration of that agreement.
WE WILL make whole employees for any loss of earnings and other benefits suffered as a result of our
failure to implement the agreement that was reached on June 21, 2010.
1109 Nostrand Avenue Bakery, Inc., d/b/a
Allan’s Bakery
(Employer)
D
Dated
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Two MetroTech Center, Jay Street and Myrtle Avenue, Suite 5100
Brooklyn, New York 11201-3838
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-330-2862.