Trade Fair Supermarkets, (2009)

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Trade Fair Supermarkets, (2009)

Kamal Corp., Jaber Food Corp., Coro Food Corp., Loreen Food Corp., Nadine Food Corp., Crescent Food Corp., Ziad Food Corp., 89–02 Food Corp., 75–07 Food Corp., and 130–10 Food Corp., d/b/a Trade Fair Supermarkets and Local 338, Retail, Wholesale and Department Store Union/United Food and Commercial Workers. Case 29–CA–28448

April 30, 2009

DECISION AND ORDER

By Chairman Liebman and Member Schaumber

On September 23, 2008, Administrative Law Judge Steven Davis issued the attached decision. The Respondent filed exceptions and a supporting brief; the General Counsel filed a brief in support of the judge’s decision; and the Charging Party Union filed a brief in support of the judge’s decision and an answering brief.

The National Labor Relations 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, and conclusions only to the extent consistent with this Decision and Order.1

Introduction

The complaint in this case alleged that the Respondent violated the Act by discriminating against employees who were not union members. The charge underlying the complaint, however, alleged the reverse—that the Respondent discriminated against union supporters. The judge found that although the charge does not support the complaint, the complaint was nonetheless valid. As explained below, we agree with the judge that the complaint allegations are not closely related to the charge allegations, but we also find merit in the Respondent’s contention that the complaint should be dismissed on this basis.

Facts and Judge’s Decision

The Respondent operates 10 supermarkets in Queens, New York. For at least 20 years, the Union has represented the Respondent’s employees in a multi-store bargaining unit, and the parties have negotiated successive collective-bargaining agreements.2 Since at least 2000, the Respondent applied the collective-bargaining agreement to employees who were union members but not to employees who were not union members, paying the nonmembers lower wages and benefits.

On August 15, 2007, the Union filed an unfair labor practice charge alleging that the Respondent violated Section 8(a)(3) of the Act by retaliating against employees for engaging in union activity.3 Thereafter, the General Counsel issued a complaint alleging that the Respondent violated Section 8(a)(3) by failing to apply the collective-bargaining agreement to the nonmembers.4

Before the judge, the Respondent challenged the validity of the complaint. Specifically, the Respondent argued that the complaint was barred by Section 10(b)’s 6-month statute of limitations, and that it was not closely related to the charge. The Respondent also challenged the unfair labor practice allegation on the merits, contending that the nonmembers were employees of an employee leasing company, not the Respondent.

The judge rejected the Respondent’s challenges to the validity of the complaint. First, he found that the complaint was not barred by Section 10(b)’s 6-month statute of limitations. Next, he found that although the complaint was not closely related to the charge, the complaint was nonetheless valid because of his “main finding” that “Section 10(b) does not apply to this case.” Addressing the merits of the complaint allegation, the judge found that the nonmembers were employees of the Respondent and, accordingly, the failure to apply the collective-bargaining agreement to the nonmembers violated Section 8(a)(3).

Before the Board, the Respondent contends, among other things, that although the judge correctly found the complaint is not closely related to the charge, he should have dismissed the complaint on this basis. As explained below, we agree with the Respondent’s contention.

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