Hagar Management Corp.

National Labor Relations Board - Board Decisions

Feb 24, 1993

310 N.L.R.B. 521 (N.L.R.B. 1993)

521
310 NLRB No. 76
HAGAR MANAGEMENT CORP.
1 Although denominated a motion to reopen, the Board is con-
struing Respondents’ motion as an excusable neglect appeal under
Sec. 102.111(c) of the Board’s Rules and Regulations. Respondents’
motion is supported by the requisite affidavit under Sec. 102.111(c).
Hagar Management Corp. and 1025-1045 Associ-
ates, Inc. and Wilfredo Arteaga
Hagar Management Corp. and 1025-1045 Associ-
ates, Inc. and Venicio Bonilla
Hagar Management Corp. and 1025-1045 Associ-
ates, Inc. and United Service Employees Union
Local 377, R.W.D.S.U., AFL–CIO
1025-1045 Associates, Inc. and Local 32B-32J, Serv-
ice Employees International Union, AFL–CIO.
Cases 29–CA–15842, 29–CA–15907, 29–CA–
15966, 29–CA–15967, and 29–CA–15945
February 24, 1993
ORDER GRANTING MOTION
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On September 21, 1992, an administrative law judge
issued a decision and recommended order in the above
proceeding finding, inter alia, that Respondent violated
the Act by discharging Anthony Mitchell and Courtney
Thompson. The judge’s order required Respondents to
offer the discharged employees reinstatement and make
them whole for any loss of earnings they may have
suffered. Pursuant to the Respondents’ request, the
time to file exceptions was extended to November 6,
1992. On December 4, 1992, in the absence of excep-
tions, the Board issued an Order adopting the decision
of the administrative law judge.
On January 12, 1993, the Respondents filed a mo-
tion to reopen to permit exceptions to be filed.1 In sup-
port thereof, the Respondents’ counsel avers that on
November 4, 1992, counsel for the General Counsel
transmitted a draft stipulation incorporating the terms
of a settlement negotiated between the General Coun-
sel and the Respondents’ counsel, that the Respond-
ents’ counsel telephoned the General Counsel on No-
vember 4, 1992, and raised two problems concerning
the draft stipulation: (1) the absence of a statement that
the two alleged discriminatees had agreed to waive re-
instatement; (2) the accuracy of the amount of interim
earnings claimed by the discriminatees; that the Gen-
eral Counsel advised the Respondents that the waiver
of reinstatement did not have to be in the stipulation,
that with respect to the accuracy of interim earnings,
the General Counsel advised that this matter would be
looked into and the General Counsel would get back
to the Respondents’ counsel; that on November 5,
1992, the General Counsel advised the Respondents
that there was no basis for deviating from the interim
earnings figures set forth in the settlement stipulation,
and that the General Counsel had not yet received a
requested report from the Social Security Administra-
tion on the interim earnings of the discriminatees.
Based on the General Counsel’s representation, Re-
spondents’ counsel ‘‘agreed not to file exceptions and
enter into the stipulation provided the Region would
review the Social Security report and revise the back-
pay numbers if the report showed in fact additional in-
terim earnings.’’ Respondents’ counsel also asserts that
he advised the General Counsel that ‘‘Respondents
were willing to put themselves completely in the Re-
gion’s hands in determining the correct amount of in-
terim earnings.’’ According to the Respondents’ coun-
sel, the General Counsel agreed to this request and
based thereon, the Respondents’ counsel did not file
exceptions.
The Respondents’ counsel argues that the ‘‘extraor-
dinary circumstances’’ of this case mandate reopening
the record to permit the filing of exceptions; that the
Respondents waived its right to file exceptions based
on a quid pro quo, i.e., the discriminatees’ waiver of
their right to reinstatement; that the settlement stipula-
tion explicitly required waiver of the Respondents’
right to file exceptions; that by the time the parties
reached agreement on November 5, 1992, ‘‘it was too
late to request a further extension to file exceptions’’;
that the only choice ‘‘was to file exceptions or reach
agreement’’; that the fact that the Respondents did not
file exceptions is evidence that the parties had reached
agreement, and, accordingly, ‘‘in the interest of justice
[the discriminatees] have reneged on their agreement to
waive reinstatement’’ and the Respondents should be
permitted to file its exceptions out of time.
The General Counsel filed a response to the Re-
spondents’ motion, advising that it was not until the
Respondents questioned the discriminatees’ interim
earnings and the discriminatees failed to receive the
first scheduled payment in December 1992 that one of
the discriminatees took the position that he was no
longer willing to forego reinstatement. The General
Counsel submits that the Respondents allowed the No-
vember 6, 1992 deadline for filing exceptions to pass
without either filing exceptions or requesting additional
time for filing exceptions, apparently in the belief that
an agreement had been reached or would be reached.
Therefore, the General Counsel opposes reopening the
record to permit exceptions to be filed. The General
Counsel does not specifically dispute the Respondent’s
factual assertions.
Having duly considered the matter, the Board has
decided to permit the Respondents to file exceptions
out of time. In our view, the parties had agreed on a
settlement on November 5, 1992, under which the two
discriminatees would waive reinstatement, but a provi-
sion to that effect would not be part of the stipulation.
In addition, the parties agreed that the interim earnings
figures would be as listed in the stipulation, subject to
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The fact that the backpay figures were subject to change does not
mean that there was no agreement. The Respondents agreed to let
the General Counsel be the sole judge as to any such changes.
3 Apparently, the discriminatee changed his mind because he did
not receive a backpay check on December 1. However, the backpay
check could not be written on December 1 because the interim earn-
ings figures were not yet final. The Social Security report had still
not been received.
revision if a Social Security report showed additional
interim earnings. In this regard, the Respondents per-
mitted the General Counsel to be the sole judge of the
accuracy of the report and of the need for any modi-
fication of the interim earnings.
Based on this agreement, the Respondents did not
file exceptions on November 5 or the due date of No-
vember 6. We find, based on the essentially
uncontroverted facts, that the Respondents did not file
exceptions because there was a full agreement on No-
vember 5, a provision of which was that exceptions
would not be filed. The fact that Respondent did not
sign the stipulation on November 5 is of no particular
significance because the interim earnings figures were
subject to change.2
Plainly, the Respondents’ counsel was confident that
agreement had been reached on all terms. Indeed, there
had never been any disagreement as to the terms of the
agreement. Were it not for the fact that one of the
discriminatees later reneged on the agreement and
would no longer waive reinstatement, the matter would
have been settled.3
In these circumstances, we believe that there was
‘‘good cause’’ for the failure to file timely exceptions.
The Respondents thought that there was a settlement
agreement, and indeed there was such an agreement.
Thus, even if there was neglect, we believe that it was
excusable. Nor do we believe that consideration of the
Respondents’ exceptions on their merits will now un-
duly prejudice the General Counsel. Indeed, the con-
verse is true. Not permitting exceptions to be filed
would unduly prejudice the Respondents. Instead of
the settlement that it reached, it would be faced with
a Board order and the prospect of possible further liti-
gation of compliance issues. In the circumstances of
this case, this would be particularly inequitable be-
cause it is the discriminatee who reneged on the prior
agreement to waive reinstatement. Accordingly,
IT IS ORDERED that the Respondents’ motion to file
exceptions out of time is granted and the Board’s
Order of December 4, 1992, is vacated.
Exceptions to the judge’s decision are due in Wash-
ington, D.C., on or before 28 days from date of
issuance.