Atlantic Veal & Lamb Inc

National Labor Relations Board - Unpublished Board Decisions

Aug 23, 2012

29-CA-024484 (N.L.R.B. Aug. 23, 2012)

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NOT TO BE INCLUDED PHG
IN BOUND VOLUME New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTIC VEAL & LAMB, INC.
and Cases 29-CA-24484
29-CA-24619
29-CA-24669
KNITGOODS WORKERS’ UNION,
LOCAL 155, UNION OF NEEDLETRADES,
INDUSTRIAL & TEXTILE EMPLOYEES, AFL-CIO
ORDER DENYING MOTION FOR RECONSIDERTION
On June 27, 2012, a three-member panel of the National Labor Relations Board
issued its Second Supplemental Decision and Order in the above-entitled proceeding.
The Board majority reversed the administrative law judge and found that the
Respondent, Atlantic Veal & Lamb, Inc., failed to meet its burden to show that
discriminatee Jeorge Ogando willfully concealed interim earnings from the Board. The
Board ordered the Respondent to make Ogando whole for the period from November
15, 2001 until June 7, 2004. Thereafter, on July 25, 2012, the Respondent filed a
Motion for Reconsideration. The Acting General Counsel filed an opposition to the
motion.
The National Labor Relations Board has delegated its authority in this proceeding
to a three-member panel.
The Board, having considered the matter, denies the Respondent’s motion
because the Board lacks jurisdiction to reconsider its 2004 Decision and Order and
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because the Respondent’s motion, insofar as it seeks reconsideration of the Board’s
Second Supplemental Decision and Order, lacks merit.
On June 30, 2004, the Board issued the underlying decision in this case, finding,
in relevant part, that the Respondent unlawfully discharged Ogando in violation of
Section 8(a)(3) and (1) of the Act. The Board's Decision and Order, which included a
make-whole remedy for Ogando, was subsequently enforced by the United States Court
of Appeals for the District of Columbia Circuit.1
In its motion, the Respondent asserts that a Board finding in its Second
Supplemental Decision and Order—that Ogando lied to someone about his interim
earnings—negates the judge’s credibility findings in the underlying unfair labor practice
case, where the judge credited Ogando over the Respondent’s witnesses. Based on
that assertion, the Respondent requests that the Board reconsider its original decision.
We lack jurisdiction to grant the Respondent’s motion. As stated above, the
Board's Order in the underlying case has been enforced by the D.C. Circuit.2 The
court’s judgment and decree are final, subject only to Supreme Court review. See, e.g.,
Grinnell Fire Protection Systems Co., 337 NLRB 141, 142 (2001) (Board has no
jurisdiction to modify a court-enforced Order); Regional Import & Export Trucking Co.,
323 NLRB 1206, 1207 (1997) (same). Accordingly, the Board's finding that the
Respondent unlawfully discharged Ogando is the law of the case.
To the extent that the Respondent’s motion requests that the Board reconsider
its Second Supplemental Decision and Order, we reject the request because it lacks

1 Atlantic Veal & Lamb, Inc., 342 NLRB 418 (2004), enfd. per curiam 156
Fed. Appx. 330 (D.C. Cir. Oct. 27, 2005).
2 Atlantic Veal & Lamb, Inc. v. NLRB, 156 Fed. Appx. 330 (D.C. Cir. Oct. 27,
2005).
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merit. Section 102.48(d)(1) of the Board's Rules and Regulations provides, in pertinent
part, that a party to a proceeding may, because of extraordinary circumstances, move
after the decision for reconsideration, rehearing, or to reopen the record. The
Respondent has not presented any extraordinary circumstances that require
reconsideration.3 Indeed, although the Respondent requests that the Board reassess
credibility, it has not offered any evidence, either new or previously undiscoverable, in
support of that request.
Accordingly, we shall deny the Respondent’s motion.
IT IS ORDERED that the Motion for Reconsideration is denied.
Dated, Washington, D.C., August 23, 2012.
_________________________________
Mark Gaston Pearce, Chairman
_________________________________
Brian E. Hayes, Member
_________________________________
Richard F. Griffin, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

3 Member Hayes adheres to the views expressed in his dissent in the Second
Supplemental Decision and Order with respect to Ogando’s backpay, but he agrees
with his colleagues that the Board lacks jurisdiction to reconsider the underlying unfair
labor practice decision and the Respondent has not established grounds warranting
reconsideration of the Second Supplemental Decision under Sec. 102.48(d)(1) of the
Board's Rules and Regulations.