Vocell Bus Company

National Labor Relations Board - Board Decisions

Dec 20, 2011

357 N.L.R.B. 1730 (N.L.R.B. 2011)

1730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 148
Vocell Bus Company, Inc. and International Brother-
hood of Teamsters, Local Union No. 25. Cases 1–
CA–45915, 1–CA–45978, 1–CA–46121, and 1–
CA–46203
December 21, 2011
ORDER DENYING MOTION FOR SUMMARY
JUDGMENT AND REMANDING
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
Upon charges filed by the Union in Cases 1–CA–
45915, 1–CA–45978, 1–CA–46121, 1–CA–46203,1 the
Acting General Counsel issued a consolidated complaint
on August 11, 2010, against Vocell Bus Company (the
Respondent), alleging that it violated Section 8(a)(3) and
(1) of the Act. The Respondent filed an answer.
Subsequently, on November 23 and 24, 2010, the Re-
spondent and the Union entered into an informal settle-
ment agreement, which was approved by the Regional
Director for Region 1 on December 7, 2010. Pursuant to
the terms of the settlement agreement, the Respondent
agreed, among other things, to make whole the employ-
ees named in the settlement by making payments as
specified in the agreement. In addition, the Respondent
agreed to comply with all provisions of the notice, in-
cluding offering Louis Sainvil full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
The settlement agreement also contained the following
default provision:

[T]he Charged Party/Respondent agrees that in case of
non-compliance with any of the terms of this Agree-
ment by the Charged Party, including but not limited to
failure to make timely installment payments of moneys
as set forth above, and after 14 days notice from the
Regional Director of the National Labor Relations
Board of such non-compliance without remedy by the
Charged Party, the Regional Director may issue a com-
plaint based upon the allegations of the charge(s) in the
instant case(s) that were found to have merit, and/or re-
issue the complaint previously filed in the instant
case(s). Thereafter, the General Counsel may file a
motion for summary judgment with the Board on the
allegations of the just issued complaint concerning the
alleged violations of the Act. The Charged Party un-

1 On December 3, 2010, the Acting Regional Director for Region 1
issued an order approving withdrawal in Case 1–CA–46049 and the
withdrawal of paragraphs 7 and 13 of the original consolidated com-
plaint.
derstands and agrees that it will not file an answer to
that complaint, and that the allegations of that com-
plaint 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 that complaint.
On receipt of that motion for summary judgment, the
Board shall issue an Order requiring the Charged Party
to show cause why that Motion of the General Counsel
should not be granted. The only issue that may be
raised in response to the Board’s Order to Show Cause
is whether the Charged Party defaulted on the terms of
this Agreement. The Board may then, without necessi-
ty 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 allega-
tions adverse to the Charged Party on all issues raised
by the pleadings. The Board may then issue an Order
providing a full remedy for the violations found, in-
cluding but not limited to the remedial provisions of
this Agreement. The parties further agree that the
Board’s order may be entered thereon ex parte and that,
upon application by the Board to the appropriate Unit-
ed States Court of Appeals for enforcement of the
Board’s order, judgment may be entered thereon ex
parte and without opposition from the Charged Party.
Notwithstanding the provisions of this paragraph, no
default shall be asserted based on this paragraph fol-
lowing compliance with this Settlement Agreement and
notice to the parties that the Regional Office has admin-
istratively closed this case.

By letter dated August 17, 2011, Region 1 notified the
former counsel for the Respondent that the Region found
that the Respondent had not complied with the terms of
the settlement agreement and made a demand for cure.
Specifically, the Region found that the Respondent failed
to meet its obligation to reinstate employee Louis Sainvil
to his former job by offering Sainvil work at times and in
quantities substantially lower than was assigned him pri-
or to the alleged unfair labor practices in the above cases.
The letter stated that the Respondent shall cure its default
by: (1) completing the current schedule of payments to
Sainvil; (2) immediately paying Sainvil an additional
amount of $6153, representing the average earnings from
December 15, 2010 through August 27, 2011 that Sainvil
would have been paid had he been reinstated to his prior
position;2 and (3) offering Sainvil, in writing, a volume

2 The letter stated that the additional backpay figure assumes that
Sainvil would have been assigned work according to the same assump-
tions accepted by the parties in the original settlement agreement, ex-
cept that in months where it appears that no driver similarly situated to
VOCELL BUS CO.

1731
of work at times and in quantity consistent with his as-
signments prior to his discharge for the remainder of the
summer and thereafter. The letter further stated that if
the default was not cured within 14 days of receipt of the
letter, the Region would reissue the complaint and seek a
Board order and court judgment, as provided for in the
settlement agreement. Contending that no cure was
made within the specific period, the Regional Director
issued an Order finding Respondent in default of settle-
ment agreement and notice of intent to issue an amended
consolidated complaint on September 12, 2011, which
was subsequently corrected on September 13, 2011. Pur-
suant to the terms of the settlement agreement’s default
provision, the Regional Director issued an amended con-
solidated complaint in Cases 1–CA–45915, 1–CA–
45978, 1–CA–46121, and 1–CA–46203 on September
23, 2011. The Respondent, in accordance with the terms
of the settlement agreement, did not file an answer to the
amended complaint.
On September 28, 2011, the Acting General Counsel
filed a Motion for Summary Judgment with the Board.
Thereafter, on September 29, 2011, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be grant-
ed. The Respondent, now acting pro se, filed a response
to the Notice to Show Cause on October 11, 2011,
wherein it denied that it defaulted on the terms of the
settlement agreement. Specifically, it asserted that it
reinstated Sainvil to his former position, that Sainvil re-
fused multiple offers of work assignments, and that it
was given no explanation for the Regional Director’s
calculation of the additional backpay due.
On the entire record in this case, the National Labor
Relations Board makes the following
Ruling on Motion for Summary Judgment
In his Motion for Summary Judgment, the Acting
General Counsel contends that the Respondent offered

Sainvil was assigned the number of hours assumed in the settlement,
the actual hours of a similarly situated driver were substituted. The
backpay figure quoted is net, with interim earnings deducted on a quar-
terly basis, and daily compound interest through August 27, 2011 in-
cluded.
Sainvil work at times less advantageous and in quantities
substantially lower than Sainvil's work conditions prior
to the occurrence of the alleged unfair labor practices. In
its response to the Notice to Show Cause, the pro se Re-
spondent contends that it reinstated Sainvil to his previ-
ous position, and that it offered Sainvil work on many
different occasions but that Sainvil refused the assign-
ments. The Respondent further disputes that it owes
Sainvil additional backpay, asserting that the Acting
General Counsel has not explained how he calculated the
additional backpay of $6153 that he claims the Respond-
ent owes Sainvil.
We find that summary judgment is not proper in the
circumstances of this case. Specifically, the pro se Re-
spondent sufficiently stated the basis for its disagreement
with the Acting General Counsel’s contention that it has
not complied with the terms of the settlement agreement.
Thus, a factual dispute exists as to whether the Respond-
ent offered Sainvil work in his previous position that is
equivalent in quantity to that which he performed prior to
when the unfair labor practices purportedly occurred. If
the Respondent’s assertion—that it complied with the
terms of the settlement agreement—is true, dismissal of
the complaint is warranted.
We therefore find that the denials contained in the Re-
spondent’s response to the Notice to Show Cause, filed
in accordance with the settlement agreement, are suffi-
cient to require a hearing on the question of whether the
Respondent fully complied with the terms of the settle-
ment agreement. Accordingly, we deny the Acting Gen-
eral Counsel’s Motion for Summary Judgment.
ORDER
It is ordered that the Acting General Counsel’s Motion
for Summary Judgment is denied.
It is further ordered that this proceeding is remanded to
the Regional Director for Region 1 for the purpose of
issuing a notice of hearing and scheduling a hearing be-
fore an administrative law judge, limiting such proceed-
ing to the determination of whether the complaint should
be dismissed on the ground that the Respondent fully
complied with the terms of the settlement agreement.