B. J. Heating, Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1984

268 N.L.R.B. 643 (N.L.R.B. 1984)

B. J. HEATING, INC.
B. J. Heating & Air Conditioning, Inc. and Sheet
Metal Workers' Union, Local No. 162, Sheet
Metal Workers' International Association,
AFL-CIO. Case 20-CA-16621(E)
26 January 1984
SUPPLEMENTAL DECISION AND
ORDER REMANDING PROCEEDING TO
ADMINISTRATIVE LAW JUDGE
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 11 January 1983 Administrative Law Judge
Russell L. Stevens issued the attached supplemental
decision. The Applicant filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, l and
conclusions only to the extent consistent herewith.
B. J. Heating & Air Conditioning filed an appli-
cation for an award of attorneys' fees and expenses
under 5 U.S.C. § 504 of the Equal Access of Jus-
tice Act (EAJA), 94 Stat. 2325 (1980). The judge
dismissed B. J. Heating's application as untimely
because it was allegedly not filed with the Board
within the jurisdictionally prescribed 30-day time
period under 5 U.S.C. § 504(a)(2) of the EAJA.
The Applicant observes that the 30th day fell on
Sunday, 10 October 1982. The following Monday
was a legal holiday, and the application was filed
on 12 October, the first business day following ex-
piration of the 30-day filing period. The Applicant
argues that under these circumstances the applica-
tion was timely filed. We find merit in the Appli-
cant's position.
We reiterate our earlier holding that, because the
EAJA is a waiver of sovereign immunity, the 30-
day filing period is a jurisdictional prerequisite that
the Board cannot legally extend.2 The issue, how-
ever, is whether the 30-day period included Tues-
day, 12 October, or ended for all practical purposes
on Friday, 8 October, 28 days after the entry of the
Board's final order. Considerations of fairness,
well-settled rules of statutory construction, and
long-honored time computation rules combine to
I The Applicant has excepted to the judge's finding regarding the date
on which the regional director withdrew the complaint. Though the re-
gional director inadvertently failed to date the letter he issued withdraw-
ing the complaint, we are satisfied, for reasons set forth by the judge, that
the entry date was 10 September 1982.
2 Monark Boat Co., 262 NLRB 994 (1982), affd. 708 F.2d 1322 (8th Cir.
1983).
dictate exclusion of the final Saturday, Sunday, or
holiday when calculating the 30-day period. That
the final day fell on Sunday and the following
Monday was a Federal holiday was merely a
matter of accident-surely not a sufficient basis to
deprive the Applicant of its right to apply for reim-
bursement of attorney's fees.
Furthermore, Rule 6(e) of the Federal Rules and
Civil Procedure, provides in relevant part that:
[I]n computing any period of time prescribed
or allowed by these rules . . . or by any appli-
cable statute, the day of the act, event, or de-
fault from which the designated period of time
begins to run shall not be included. The last
day of the period so computed shall be includ-
ed, unless it is a Saturday, a Sunday, or a legal
holiday, in which event runs until the end of
the next day which is not a Saturday, a
Sunday, or a legal holiday.
Since this rule had the concurrence of Congress,
and since no contrary policy is expressed in the
statute governing this application, we think that it
is reasonable to assume that Congress had these
time computation principles in mind when it legis-
lated and we construe the statute accordingly.
Indeed, the Board's own Rules and Regulations
provided for time computation in a manner similar
to that set forth in Rule 6(a). 3 It is important to
bear in mind that these rules relate to matters of
procedure only and do not diminish, modify, or en-
large the substantive rights of Applicant. Applica-
tion of the Board's rules, therefore, does not extend
the time within which an application must be filed.
We are merely defining what happens when the
30th day falls on a Saturday, Sunday, or legal holi-
day. As the instant application was filed on the first
business day following the Sunday expiration date,
the filing was timely.
ORDER
The National Labor Relations Board orders that
this proceeding be remanded to Administrative
Law Judge Russell L. Stevens for such further
action as is required in light of our decision to
accept as timely filed the application of B. J. Heat-
ing & Air Conditioning, Inc. for attorney's fees and
expenses, including the issuance of a decision on
the merits of the application.
I See Board's Rules and Regulations, Sec. 102.114.
268 NLRB No. 98
643
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative law Judge: The
complaint in Case 20-CA-16621, which issued on Janu-
ary 29, 1982,1 alleged that B. J. Heating & Air Condi-
tioning, Inc. (B.J.) had violated Section 8(a)(1) and (5) of
the National Labor Relations Act (Act). The hearing in
Case 20-CA-16621 was opened on August 31, 1982, in
consolidation with two other cases, 20-CA-16449 and
20-CA-16451. At the hearing, after preliminary matters
were attended to but prior to the taking of any testimo-
ny, counsel for the General Counsel moved to sever
Case 20-CA-16621 from the other two cases. The Gen-
eral Counsel's motion was granted by the Administrative
Law Judge over objection of B.J.'s counsel. On Septem-
ber 1, B.J.'s counsel requested from the National Labor
Relations Board (NLRB or Board) permission to appeal
the judge's order granting the General Counsel's motion
to sever Case 20-CA-16621. On a date that is in dispute
(discussed infra), the Regional Director for Region 20 of
the National Labor Relations Board notified B.J.'s coun-
sel of his decision to withdraw the complaint in Case 20-
CA-16621. On September 17 the Board denied the re-
quest of B.J.'s counsel for permission to appeal the
judge's order of severance given on August 31. By docu-
ment dated October 7, received by the Board October
12,2 B.J.'s counsel applied for an award of fees and ex-
penses under the Equal Access to Justice Act (EAJA).
By order dated October 18, NLRB referred the applica-
tion of B.J.'s counsel to me for appropriate action. On
November 10, counsel for the General Copunsel issued
and filed a motion to dismiss the application of B.J.'s
counsel, together with a supporting memorandum. On
November 29 B.J.'s counsel issued and filed the appli-
cant's response to the General Counsel's motion to dis-
miss. By letter dated November 24, filed November 26,
counsel for the General Counsel advised me, with copies
of B.J.'s counsel and other addressees, of a recent case
deemed applicable to these proceedings.
Issues
The General Counsel's motion to dismiss sets forth
nine issues, all but one of which refer to procedural alle-
gations of the application which the General Counsel
contends are deficient or cover nonallowable fees and
expenses. Substantially, the General Counsel contends
that the application was not timely filed.
B.J.'s response contends that the application was
timely filed and is adequate basis for an award.
I. Timeliness of filing
This issue results from the fact that the application was
filed on Tuesday, October 12, following Saturday and
Sunday, October 9 and 10, and the Monday holiday of
October 11.
I All dates hereinafter are within 1982, unless otherwise stated.
This date of filing, October 12, is acknowledged by B.J.'s counsel.
The initial problem is the fact that the Regional Direc-
tor's notification of withdrawal of the complaints does
not carry a typed date. Counsel for the General Coun-
sel's memorandum in support of the motion to dismiss
has appended to it as Exhibit 1, a copy of the Regional
Director's letter of withdrawal. That letter shows a date
stamp of "Sep. 10 1982." B.J.'s response to the General
Counsel's motion memorandum has an Exhibit A, which
also is a copy of the Regional Director's withdrawal
letter. Exhibit A has a date stamp also, but it reads "Re-
cieved Sep 13 1982." In his affidavit supporting Exhibit
A, Ronald Brown, a law clerk in the office of B.J.'s
counsel, stated, inter alia, that he received the letter on
or about September 15. Brown does not state from
whom he received the letter, but he states that on or
about September 15 he was advised by Robert Johnson,
president of B.J., and Leana Keeling, bookkeeper and an
owner of River City Mechanical, 4 that the two of them
had received undated copies of the letter.
The record is skimpy on this point, but the inference is
strong, and it is found, that the Regional Director with-
drew the complaint on September 10. It is the withdraw-
al date that controls the issue; the date B.J. received the
notice of withdrawal is not controlling. 5 September 10
was on a Friday; September 13 was on a Monday.
Brown's affidavit leaves unanswered the question of
from whom the withdrawal notice was received, but it is
apparent that the date of September 13 was the date the
notice was marked received, and not the date of the
letter itself. B.J.'s counsel argues that the date of Septem-
ber 10 could have been placed on the General Counsel's
exhibit in a manner that, inadvertently or intentionally,
resulted in a self-serving document, but that argument
applies equally well to the letter stamped as received
September 13. In view of the facts that September 10
was on a Friday, and that the letter of withdrawal was in
B.J.'s hands the following Monday, the conclusion is log-
ical that the letter of withdrawal was written and mailed
on Friday, as contended by counsel for the General
Counsel. It is most unlikely that the Regional Director
could have written a letter and had it delivered by mail
on the same day to addresses in at least two, and possi-
bly three, separate places.
The second question on this issue is whether or not the
30-day provision of the Board's rule, Section 102.148(a)
was complied with. That section provides, inter alia, that
applications under EAJA may be filed 6 ". . . in no case
s The fact that withdrawal of the complaint is a "final order" within
the meaning of Sec. 102.48 of the Board's Rules and Regulations is not in
dispute.
4 River City Mechanical is a respondent in the aforesaid Cases 20-CA-
16449 and 20-CA-16451.
a See Monark Boat Co., 262 NLRB 994, 995 (1982), wherein the Board
stated, inter alia, "Thus, here, since it is the entry of the Board's final
order that marks the beginning of the filing period, rather than service of
notice of final judgment, Section 102.114(a) [note: of the Board's rules,
relating to time periods 'after service'] is immaterial."
I The date of the application and the date of mailing are irrelevant, so
far as filing is concerned. The relevant date is the one on which the ap-
plication physically is received by the Board. The Board's Rules, Sec.
102.148(1). See Monark Boat Co., supra.
644
B. J. HEATING, INC.
later than 30 days after the entry of the Board order
.... " In this case, the application was filed with the
Board on October 12, which is the 32nd calendar day
after September 10. There is no case precedent exactly
on point, but there is considerable guidance in Board de-
cisions. In Monark Boat Co., supra, the application had
been filed on the 31st day after the entry of the Board's
final order. The Board briefly reviewed the legislative
history of EAJA, inter alia, and concluded "the above
compels us to conclude that the 30-day period is a juris-
dictional prerequisite which we cannot legally extend."
The Board also stated "As Congress by this statute relin-
quished the Government's immunity from suit, we must
construe it strictly," citing U.S. v. Sherwood, 312 U.S.
584, 586, 590-591 (1941). In its footnote 5 in the Monark
decision, the Board stated:
Respondent cites several cases which stand for the
proposition that, when a filing period expires on
Sunday, filing on the following Monday is timely.
We are unprepared to analogize those cases to the
instant situation, where the Respodent failed to file
its application by a Tuesday. Reliance on Zipes v.
Trans World Airlines, 50 LW 4238 (U.S. 1982), is
also misplaced. Zipes did not involve statutes waiv-
ing sovereign [immunity].
After deciding Monark, the Board was presented with
Lord Jim's,7 wherein the application under EAJA was
mailed 3 days before the due date, and was untimely
filed because of postal delays. The Board affirmed the
decision of Administrative Law Judge Pollack, who
stated, inter alia, "under the Monark Boat Company ra-
tionale the Board and its administrative law judge are
without jurisdiction to consider an application which is
not filed within the specified statutory jurisdictional time
period." In affirming Administrative Law Judge Pollack,
the Board, 264 NLRB 1098 fn. 1, stated, inter alia:
. . . our calculations show that the 30th day after
entry of the Board's decision was on Sunday, Feb-
ruary 21. Since Respondent did not file its applica-
tion with the Board in Washington until February
24, we need not decide whether, because the 30th
day fell on a Sunday, a filing on the following
Monday would have been timely, even had it been
properly made in Washington. See Monark Boat,
supra, fn. 5.
Since the statute limits timely filing to 30 days, and
since the Board has determined that the 30-day provision
must be strictly construed, and applies even though the
filing is on the 31st day (Monark), or is delayed by mail
delivery (Lord Jim's), the only question is whether or not
the Board may extend a 30-day period falling on a
Sunday. If there is such authority for the Board to
extend the period, it must be implied, for it is not ex-
pressed in the EAJA statute, or rules relating thereto.
7 264 NLRB 1098 (1982).
The Board has stated that it cannot extend the jurisdic-
tional prerequisite of a 30-day filing,8 and that view is in
accordance with the view of the U.S. Supreme Court,
which stated, inter alia, in Soriano v. U.S., 352 U.S. 270
(1975), "And this Court has long decided that limitations
and conditions upon which the Government consents to
be sued be strictly observed and exceptions thereto are
not to be implied . . ."I Had Congress meant to extend
the 30-day period if it fell on a Sunday, it must be pre-
sumed that it would have said so. Such expressions are
not unusual or impractical. B.J.'s counsel relies on Rule
6(a) of the Federal Rules of Civil Procedure and Section
102.114 of the Board's rules, and cites several cases de-
cided under those rules, wherein filing dates falling on
Sunday were extended. However, the situation relative
to those rules is quite different from that involved herein.
Rule 6(a) specifically excludes from time computations
days expiring1 ° on a Sunday or a holiday, and further,
that rule gives courts broad authority to extend times
otherwise specifically limited. Still further, Rule 6(a) has
the express concurrence of Congress. In similar manner,
the Board's rule, Section 102.114, expressly provides for
a 1-day extension of time if the last day of a period falls
on a Sunday or a holiday. There is no statute or rule in-
volved in this case which: (a) gives the Board authority
to extend the 30-day filing period, or (b) expressly pro-
vides that the 30-day period may be extended under cer-
tain circumstances.
As pointed out by counsel for the General Counsel,
the choice of words used in Section 504(a)(2) of the
EAJA (filing of an application must be "within thirty
days" of entry of the Board's final order) and in Section
102.148(a) of the Board's rules (filing must be "in no case
later than" 30 days after entry of order) make it clear
that the 30-day provision sets the outside limit for filing.
There is no basis for implying that Congress intended to
provide possible relief when the filing date was cut so
close that it was missed only because Sunday or a holi-
day was the 30th day.
It is found that the filing of the FAJA application in-
volved herein was not timely, and is subject to dismissal
for that reason.
2. Objections to the application
The General Counsel raised issues relating to the Ap-
plicant's net worth statement; claim for allegedly nonre-
lated work; allegedly excessive hourly work rate; work
allegedly performed prior to the effective date of EAJA;
allegedly improper claim for fees and expenses predating
issuance of the complaint and for preparation of the
EAJA application; alleged failure to state particulars re-
lating to the claim; and the General Counsel's justifica-
tion in issuing the complaint.
8 Haynes-Trane Service Agency, 265 NLRB 958 (1982); Columbia Mfg.
Corp., 265 NLRB 109 (1982).
9 See also Wallis v U.S., Ct. Cl. No. 453-79C.
10 With some exceptions described in the rule.
645
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the findings and conclusions discussed
above and the Board's position that it has no jurisdiction
over an application not timely filed, no findings or con-
clusions are made relative to the various procedural de-
fects alleged by the General Counsel. "
[Recommended Order for dismissal omitted from pub-
lication.]
" Haynes-Trane Service Agency, supra Columbia Mfg. Corp., supra.
646