Carpenters Local 1506 (Marriott Warner Center)

National Labor Relations Board - Board Decisions

Dec 7, 2005

345 N.L.R.B. 1334 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 112
1334
Carpenters Local Union No. 1506, United Brother-
hood of Carpenters and Joiners of America and
Sunstone Hotel Investors, LLC, d/b/a Marriott
Warner Center Woodland Hills
Carpenters Local Union No. 209, United Brotherhood
of Carpenters and Joiners of America and
Carignan Construction Company
Carpenters Local Union No. 209, United Brotherhood
of Carpenters and Joiners of America and
Gregory D. Bynum & Associates, Inc.
Carpenters Local Union No. 209, United Brotherhood
of Carpenters and Joiners of America and Odys-
sey Development Services
Carpenters Local No. 743, United Brotherhood of
Carpenters and Joiners of America and The Ba-
kersfield Californian. Cases 31–CC–2121, 31–
CC–2122, 31–CC–2123, 31–CC–2124, and 31–
CC–2130
December 7, 2005
ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
Charging Party Marriott Warner Center Woodland
Hills’ request that the Board accept its late-filed reply
brief based on excusable neglect is denied. The asserted
reasons for the lateness, as described in counsel’s affida-
vit, do not rise to the level of excusable neglect. See
Pioneer Investment Services Co. v. Brunswick Associates
Ltd. Partnership, 507 U.S. 380 (1993), and Elevator
Constructors Local 2 (Unitec Elevator Services Co.), 337
NLRB 426 (2002).1

1 While Member Schaumber agrees with those circuit courts that
have taken issue with the Board’s unduly harsh application of its pro-
cedural rules, see Patrician Assisted Living, 339 NLRB 1153 (2003), he
agrees that the Board’s decision in Unitec, supra, controls the issue
presented by the Charging Party’s request. The new procedure sug-
gested by our dissenting colleague was not contemplated by Unitec and
thus must await agreement of three Board members to adopt.
CHAIRMAN BATTISTA, dissenting.
The issue in this case is whether to accept a party’s
brief that is 1 day late. The party asserts that, through
“inadvertent oversight,” it “mis-calendared” the due date.
As set forth below, I would accept a tardy brief where:
(1) all parties have been contacted by the tardy party, and
all of them affirmatively consent to the receipt of the
tardy document; and (2) the Board has no valid reason of
its own for rejecting the tardy document.
In my view, the Act encourages parties to cooperate
and reach accords. Thus, for example, parties can agree
to settle a case, even if the remedy is not what the Board
would give, provided that the settlement does not offend
basic statutory policies.1 Similarly, parties can agree on a
bargaining unit, even if it is not what the Board would
impose, provided that the unit does not offend basic
statutory policies.2 Accordingly, I see no reason why the
Board should reject an all-party agreement to accept a
tardy brief, provided that fundamental Board interests are
not undermined.
Unitec is not to the contrary. In that case, there was
simply no response to the motion to receive the tardy
brief. However, a nonresponse is not the same as an all-
party affirmative agreement to accept a tardy brief.
In sum, I wish to encourage all-party agreements
which do not undermine fundamental Board interests.
Accordingly, I would permit the Charging Party here to
proceed promptly under step one above. Absent an all-
party accord, I would reject the brief. With all-party ac-
cord, I would accept the brief. In this latter regard, I do
not believe that receipt of a brief that is 1 day late would
undermine fundamental Board interests.

1 Independent Stave, 287 NLRB 740 (1987).
2 SCM Corp., 270 NLRB 885, 886 (1984).