MSK Cargo/King Express

National Labor Relations Board - Board Decisions

Mar 27, 2009

353 N.L.R.B. 1186 (N.L.R.B. 2009)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 121
1186
M. Mogul Enterprises, Inc. d/b/a MSK Cargo/King
Express and Teamsters Local Union 657 affili-
ated with International Brotherhood of Team-
sters. Case 16–CA–24374
March 27, 2009
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
The General Counsel seeks summary judgment in this
case pursuant to the terms of a settlement agreement. On
November 8, 2006, the National Labor Relations Board
issued a Decision and Order1 that, inter alia, ordered the
Respondent, M. Mogul Enterprises, Inc. d/b/a MSK
Cargo/King Express, to make whole nine discriminatees
for the loss of earnings and other benefits resulting from
the Respondent’s unlawful refusal to hire them in viola-
tion of Section 8(a)(3) and (1) of the Act.
A controversy having arisen over the amount of back-
pay due to the discriminatees under the Board’s Order,
on February 29, 2008, the Regional Director for Region
16 issued a compliance specification and notice of hear-
ing alleging the amount due under the Board’s Order,
and notifying the Respondent that it should file a timely
answer complying with the Board’s Rules and Regula-
tions. On September 5, 2008, the Regional Director ap-
proved a settlement agreement, executed by both parties,
resolving the allegations contained in the compliance
specification.
Pursuant to the terms of the settlement agreement, the
Respondent agreed to pay the discriminatees a total sum
of $57,600, which represented $52,066.20 in backpay
and $5,533.80 in interest due at the time of the settlement
agreement. The amounts due were to be paid in monthly
installments of $1200 for a period of 4 years. The set-
tlement agreement also contained the following provi-
sions:
8. Following notice of and failure to cure a default, the
Regional Director may, without further notice, institute
any and all further proceedings against Respondent for
the collection of the full indebtedness remaining due.
The General Counsel may file a Motion for Supple-
mental Order with the Board to seek an order providing
that Respondent, its officers, agents, successors, and as-
signs shall make whole the discriminatees for loss of
pay suffered by reason of the discrimination, by pay-
ment to them of the balance of the amount determined
to be owing, with additional accrued interest. On re-
ceipt of said Motion for Supplemental Order, the Board
shall issue an Order requiring Respondent to Show

1 348 NLRB 1096 (2006).
Cause why said Motion of the General Counsel should
not be granted. Respondent waives the right to file any
response or opposition to the Motion for Supplemental
Order, other than a response to the Board’s Order to
Show Cause on the issue of whether Respondent de-
faulted under the terms of the Settlement Agreement.
The Board may then, without the necessity of a hearing
or other proceeding, issue the Supplemental Order as
described. Upon application by the Board, the United
States Court of Appeals may enter its Judgment enforc-
ing the Supplemental Order of the Board. Respondent
waives all defenses to the entry and enforcement of the
Judgment including compliance with the Supplemental
Order of the Board, and its right to receive notice of the
filing of the Board’s Application for Enforcement of
the Judgment. Respondent shall be required to comply
with the affirmative provisions of the Board’s Supple-
mental Order after entry of the Judgment only to the
extent that they have not already done so. The Board
shall then be entitled to immediately take any action
pursuant to the Federal Debt Collection Procedures Act
(FDCPA), 28 U.S.C. Section 3001 et seq., to collect on
its enforced Judgment and Respondent shall be deemed
to have waived any right to assert any defense to such
FDCPA action. The Board agrees that it will not insti-
tute any court proceedings to collect this judgment for
so long as Respondent complies with all provisions of
this Settlement Agreement.
9. By entering into this Settlement Agreement, the
Board does not waive any of its statutory rights, follow-
ing notice of and failure to cure a default as detailed
above, to initiate proceedings under the FDCPA for a
prejudgment remedy to collect any amounts due and
owing under this Settlement Agreement prior to the en-
try and enforcement of a Supplemental Order of the
Board by the United States Court of Appeals liquidat-
ing those amounts.
Since September 5, 2008, the Respondent failed to
make any of the payments required by the terms of the
settlement agreement. By letters dated October 17 and
November 24, 2008, the Regional Director notified the
Respondent that it was in default of the settlement
agreement. On December 8, 2008, the Respondent’s
counsel notified the Regional Director that it would not
comply with the terms of the settlement agreement.
Thereafter, on February 5, 2009, the General Counsel
filed with the Board a Motion for Summary Judgment for
Supplemental Order, with exhibits attached.2 On Febru-

2 The General Counsel inadvertently attached the wrong complaint
to the Motion for Summary Judgment, and as a result, in pars. 1–3 of
the Motion, he also incorrectly identified the name of the Charging
MSK CARGO/KING EXPRESS 1187
ary 11, 2009, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion and in
the compliance specification are therefore undisputed.
Ruling on the Motion for Summary Judgment3
According to the uncontroverted allegations of the Mo-
tion for Summary Judgment, the Respondent has
breached the terms of the settlement agreement by failing
to make any of the payments required by the settlement
agreement. Consequently, pursuant to the noncompli-
ance provisions of the settlement agreement set forth
above, we find that the backpay amount due under the
settlement agreement of $52,066.20, plus interest, is im-

Party Union, the dates of the charges filed, and the issuance and service
dates of the complaint. These errors are immaterial, as this information
was only provided for background purposes. The relevant documents
for purposes of this case are the underlying Board decision, the compli-
ance specification, the settlement agreement, and the letters between
the General Counsel and the Respondent.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
mediately due.4 Accordingly, we grant the General
Counsel’s Motion for Summary Judgment and conclude
that the outstanding amounts of $52,066.20 in backpay
and $11,318.98 in interest through January 20, 2009 are
immediately due the discriminatees, and we will order
the Respondent to pay those amounts, plus interest ac-
crued to the date of payment, in the manner set forth in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, M. Mogul Enterprises, Inc. d/b/a MSK
Cargo/King Express, Harlingen, Texas, its officers,
agents, successors, and assigns, shall make whole
Ernesto Aguilar, Rolando Galvan, Michael Guzman,
Elizondro Martinez, Jose Muniz, Edgar Rangel, Javier
Torres, Tomas Vasquez, and Gilbert Villegas, by paying
to the Board, on behalf of those individuals, the out-
standing amounts of $52,066.20 in backpay and
$11,318.98 in interest through January 20, 2009, plus
additional interest accrued until the date of payment.
TOTAL AMOUNT DUE: $63,385.18
(plus any interest accrued after January 20, 2009, until date
of payment).

4 See Tom Cat Development Corp., 340 NLRB 193 (2003).