NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,488, MARKET SERVICES ASSOCIATION et al. and LOCAL 703, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO et al., (Sep. 22, 1994), National Labor Relations Board, (Sep 22, 1994)

MARKET SERVICES ASSOCIATION et al. and LOCAL 703, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AFL-CIO et al.

314 NLRB No. 202.Case No. 13-CA-29770. September 22, 1994 Walter H. Maloney, Administrative Law Judge. [1] .

Before Gould, Stephens and Devaney.

Board Procedure--Exceptions--Failure to File Answer.--Exceptions to a ruling of an administrative law judge that were timely filed by two employers, that had previously been adjudged in default of an answer to the General Counsel’s motion to set aside an employers’ association settlement agreement, were well taken. The two employers responded that their failure to answer the motion was occasioned by the fact that, at the time of the execution of the agreement, they were neither members of the association nor had they authorized it to act on their behalf. Good cause having been shown, the NLRB deleted the two employers from its order voiding the settlement agreement as to 56 other employers that constituted the association. Section 10(c).

Back reference: ¶5600.20.

Supplemental decision following (CA-7 1994) 128 LC ¶11,126, sub nom Dominick’s Finer Foods.

From Text of Board’s Decision

On February 5, 1992, Administrative Law Judge Walter H. Maloney issued a decision finding that certain named employer-respondents had violated Section 8(a)(1), (2), (3), and (5) of the Act. The judge, however, excluded the employer-members of Market Services Association from his decision based on his approval, between the close of the hearing and issuance of his decision, of an informal settlement agreement entered into by the Association on behalf of its members. On September 23, 1992, the Board issued a Decision and Order in this matter, [2] adopting the judge’s findings and conclusions of law and adopting his recommended Order.

Thereafter, on October 21, 1993, the General Counsel filed a motion to set aside the settlement agreement, claiming that a large number of the individual employers belonging to the Association were not in compliance with its terms. Pursuant to the General Counsel’s motion, the judge issued an Order to Show Cause on November 15, 1993, directed at the members of the Association who were not in compliance with the settlement agreement but who had been initially charged and served when the case began, asking them to state why the General Counsel’s motion should not be granted as to them. Thereafter, on December 10, 1993, the judge issued a Second Order to Show Cause directed at those who had not responded to the first show cause order, again directing them to show cause why the General Counsel’s motion should not be granted as to them.

Subsequently, a hearing was held before the judge on February 28, 1994, on the General Counsel’s motion to set aside the settlement agreement. At the hearing, the General Counsel moved to dismiss its motion as to 72 named employers, 57 of whom had complied with the settlement agreement initially, and 14 of whom had complied at a later date. Dismissal was also sought as to the Association itself, which had eventually complied. The General Counsel further moved to dismiss its motion as to 22 individual employers, who had filed responses to the show cause orders and appeared at the hearing, because they had each presented valid reasons why the original order in this case should not be applied to them. At the hearing, as requested by the General Counsel, the judge dismissed the motion to set aside the settlement agreement as to the 72 complying employers including the Association and the 22 employers to whom the order did not apply.

Thereafter, on March 28, 1994, the judge issued his Supplemental Decision and Order, granting the General Counsel’s motion to set aside the settlement agreement only as to the remaining 58 individual employers who failed to respond to either Order to Show Cause. [3] As to those 58 individual employers, the judge applied the findings of fact and conclusions of law issued by him in JD-28-92, and adopted by the Board in 308 NLRB 995, as fully as if they were recited again in haec verba.

Carnicerias Jiminez, Inc. and J & S Produce Co., 2 of the 58 individual employers listed in Exhibit A, filed timely exceptions to the judge’s Supplemental Decision and Order. They each assert, inter alia, that they received the show cause orders but made no response because they were neither members of Market Services Association at the time of the unfair labor practices nor had authorized it to act on their behalf. They therefore urge the Board to reopen the record to enable them to adduce evidence of their nonmembership. The General Counsel’s answering brief argues that the exceptions are lacking in merit because both Jiminez and J & S failed to timely respond to either show cause order.

The Board [4] has considered the supplemental decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt his recommended Order as modified. [5]