Central Motor Express, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1205 (N.L.R.B. 1985)

CENTRAL MOTOR EXPRESS
Central Motor Express , Inc. and General Drivers,
Warehousemen & Helpers Local No. 89 , affili-
ated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers
of America. Case 9-CA-18463(E)
30 September 1985
DECISION AND ORDER REMANDING
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 20 August 1984 Adniinistrative Law. Judge
Hubert E. Lott issued the attached supplemental
decision in this proceeding. The General Counsel
filed exceptions and a supporting brief and counsel
for Central Motor Express, Inc. filed an answering
brief.
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, and
conclusions of the administrative law judge only to
the extent consistent with this Decision and Order.
On 8 February 19841 the Board entered an
Order2 adopting the decision of the administrative
law judge recommending dismissal of the com-
plaint in the underlying unfair labor practice pro-
ceeding.3 On 5 March counsel for Central Motor
Express, Inc. filed an application for an award of
attorney's fees and expenses with memorandum in
support thereof. On 28 March the General Counsel
filed a motion to dismiss with memorandum in sup-
port thereof and on 12 April the applicant filed a
response to the General Counsel's motion. On 18
April the judge issued an order denying the Gener-
al Counsel's motion.
Section 102.50(a) of the Board's Rules and Regu-
lations states in pertinent part:
Within 30 days after service of an application
the General Counsel may file an answer to the
application . . . . The filing of a motion to dis-
miss the application shall stay the time for
filing an answer to a date 30 days after issu-
ance of any order denying the motion.
The judge correctly determined that counsel for
the General Counsel had until -18 May to file his
answer with. the Board. He concluded that the
answer was considered "filed" when it was re-
ceived by the Division of Judges on 21 May. We
disagree.
In Macotta Corp., 267 NLRB 772 (1983), the
Board, citing Hardwick Co., 266 NLRB 663 (1983),
All dates hereinafter refer to 1984 unless otherwise indicated
2 Not published in bound volumes of Board decisions
8 The judge issued his decision on 21 December 1983. No party filed
exceptions.
1205
held that documents are considered to have been
filed when they are received at the Board's head-
quarters in Washington, D.C.
The operative date then is the date the answer
was received in the Board's mailroom and not, as
erroneously concluded by the judge, the date the
document was received by the Division of Judges.
As a result of the circumstances of this case it is
impossible to determine the precise date that the
answer arrived in the Board's mailroom. The enve-
lope in which the document was received, which
would have been timestamped to indicate the date
of receipt, was lost in transit. The answer was re-
ceived by the Division of Judges on Monday
morning, 21 May.4
Counsel for the General Counsel mailed his
answer on 16 May. from Cincinnati,_ Ohio. When a
party places documents in the mail at a time when
he can reasonably- expect that such action will
result in their timely receipt, that party has the
right to assume that such will occur. That party is
entitled to rely on the mail system's working cor-
rectly and delays attributable to the vagaries of the
postal service will not be held against the sender.
Rio de Oro Uranium Mines, 119 NLRB 153 (1957).
In St. Bernadette's Nursing Home, 234 NLRB 835
fn. 1 (1978), exceptions were due on 5 January
1978. The Board held that the party had a reasona-
ble expectancy that mailing the exceptions on 4
January from Philadelphia would result in their
timely receipt and any delay in that receipt did not
appear to be attributable to the filing party.5
We find that by mailing his answer on 16 May,
counsel for the General Counsel had a reasonable
expectancy that it would be timely filed.6 There is
no evidence that any delay in the receipt of the
answer (if in fact such delay occurred) is attributa-
ble to counsel for the' General Counsel. The
answer was therefore timely filed.?
Accordingly, we shall remand this proceeding to
the judge to take such action as is required by our
finding that the answer was timely filed.
ORDER
It is ordered that this proceeding be remanded to
Administrative Law Judge,Hubert E. Lott who
4 Inasmuch as the answer was received on Monday morning it is likely
that it was received by the mailroom sometime in the afternoon of 18
May However, because of our view of the case, it is unnecessary to
reach a finding in this regard
6 See also Nyack Hospital, 238 NLRB 257, 258 fn 3 (1978)
6 Indeed, a copy of the answer mailed on the same date was received
by the applicant on 18 May at its offices in Nashville, Tennessee
Our holding does not in any way modify Monark Boat Company, 262
NLRB 994 (1982), which dealt with the procedural issue whether an ap-
plication filing satisfied the Equal Access to Justice Act's jurisdictional
prerequisites
276 NLRB No. 135
1206 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall take such action as is required in light of our
decision that the General Counsel's answer was
timely filed. .
James E. Horner, Esq. and James A. Mills, Esq., of Cin-
cinnati , Ohio, for the General Counsel.
Malcom L. McCune, Esq. and Robert H.' Cowan, Esq.
(Gracey, Maddin, Cowan & Bird), of Nashville, Tennes-
see, for the Respondent. -
SUPPLEMENTAL DECISION
[Equal Access to Justice Act]
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. The
Applicant is a Kentucky corporation engaged in the
transportation of freight. On May 4, 1983, it employed
seven employees and had a net worth of $157,000 at the
end of December 1983. -
The litigation was instituted by General Drivers, War-
ehousemen & Helpers Local Union No. 89, affiliated
with International - Brotherhood of Teamsters, Chauf-
feurs , Warehousemen and Helpers of America (the
Union) when it filed a charge against the Applicant on
June 24, 1982. Following an investigation , the Regional
Director issued complaint on January 25, 1983, alleging
that the Applicarit'violated Section 8(a)(1) and (5) of the
Act by circumventing the Union and negotiating directly
with its employees over a wage- decrease in January
1982, by unilaterally implementing a wage reduction in
February 1982, and by failing to pay- a cost-of-living ad-
justment on April 1, 1982.
"My decision in the above case , dismissing all 8(a)(1)
and (5) allegations in the complaint, issued December 21,
1983. No exceptions were filed; therefore, on February 8,
1984, the Board issued its final Order adopting the-con-
clusions and recommendations set forth in my decision.
Thereafter, pursuant to the Equal Access to Justice Act
(EAJA), Pub. L. 96-481, 94 Stat. 2321, Respondent filed
with the Board in Washington, D.C., on March 5, 1984,
an application for an award of attorn ey's fees and ex-
penses with memorandum in support thereof.
On March 28, 1984, the General Counsel filed a
Motion to Dismiss with memorandum in support thereof
and on April.12, 1984, the Applicant filed a Response to
the General Counsel's motion . I issued an order denying
the General Counsel 's motion on April 18, 19,84, because
of questions raised by the parties over the issue of sub-
stantial justification. On May 21, 1984, the General
Counsel filed his answer to the application.
The issues involved are: (1) Whether or not the Gener-
al Counsel consented to the award requested by filing an
untimely answer; and, (2) whether the Applicant is enti-
tled to precomplaint fees and expenses.
Discussion
As stated above , I issued an order denying the General
Counsel's motion to dismiss on April 18, 1984. Thereaf-
ter, the General Counsel filed as answer, dated May 16,
.1984, which was received by the Division of Judges on
May 21, 1984-33 days after issuance of the order.
The Board's Rules and Regulations, specify at Section
102.150(a): -
Within 30 days after service of an application 'the
General Counsel may file an answer to the applica-
tion. Unless the General Counsel requests an exten-
sion of time for filing or files a statement of intent
to negotiate under paragraph (b) of this section, fail-
ure to file a timely answer may be treated as a con-
sent to the award requested. The filing of a motion
to dismiss the application shall stay the time for
filing an answer to a date 30 days after issuance of
any order denying the motion. .
The Board has interpreted Section 102.148 of its Rules
and Regulations to mean that an application must be
filed no later than the 30th day after the entry of the
Board's final order. In Monark Boat Co., 262 NLRB 994,
(1982), the application was filed 31 days after the final
judgment and it was dismissed. In -Haynes-Trane Service
Agency, 265 NLRB 958 (1982), where the application
was filed 33 days after the Board's final order, it was dis-
missed. In both cases the Board held that because the
EAJA is a waiver of sovereign immunity, the 30-day
filing period is a jurisdictional prerequisite that it could
not legally extend.
Although it appears that once jurisdiction is asserted,
the Board could exercise discretion in the application of
its other filing rules, and although the word -"may" as
opposed to the word "shall" is used in Section 102.150(a)
indicating that discretion in allowing the Government
more time to comply with its rules than the public could
be exercised; I would find this to be inherently unjust. In
short, to hold the public to a higher standard than a gov-
ernmental agency, especially in the area of document
filing, seems repugnant to any appearance of fairness.
Based on the -Board's rules and case law, I find that
the General Counsel should have filed his answer on
May 18, 1984, which was not a legal holiday. Moreover,
he did not request an extension of time for filing nor did
he file a statement of intent to negotiate under Section
102.150(b). Accordingly, I will treat the General Coun-
sel's failure to file a timely answer as a consent to the
award requested subject to the following adjustments.
The Applicant submitted' an itemized list of fees and
expenses for the following periods: July 1982, $335;
August 1982, $374; October 1982, $853.47; April 1983,
$118.82; May 1983, $665.30; June 1983, $2753.82; and
August 1983 ($2755.09). These fees and expenses totaled
$7855.50. The application certifies that the Applicant's
chief attorney's hours- and expenses devoted to this case
are set forth in detail in the application-and appear rea-
sonable. However, it is readily apparent that the Appli-
cation is claiming precomplaint expenses. Since they
were not supported by any explanation for their inclu-
sion and -they are not part of the adversary proceeding
under which fees can be awarded, I will disallow them.
Accordingly, I have reduced the Applicant's claim by
deducting precomplaint expenses of. $335, $374 and
$853.47 from its gross total leaving a gross balance of
$6292:50. Inspection of Applicant's records indicate that
chief counsel spent 17.3 hours precomplaint time and
CENTRAL MOTOR EXPRESS
29.1 hours on postcomplaint matters.' Therefore, I have
reduced the Applicant's gross claim by $291, adjusting
for the allowable $75 attorney's fee. Thus, the Appli-
cant's postcomplaint fees and expenses after adjustments
should be $6001.50. Other attorneys charged time to this
case at a rate of $75 or less which accounts for the dif-
ference between chief counsel's expenses and total ex-
penses.
CONCLUSIONS OF LAW
The Applicant is a prevailing party meeting the eli-
gibility standards of the EAJA.
' Applicant's August billings showed that the chief attorney charged
11.7 hours, not 6 2 hours.
1207
2. The General Counsel of the National Labor Rela-
tions Board by failing to file a timely answer, consents to
the award requested, subject to adjustments.
3. The Applicant is entitled to reasonable attorney's
fees and expenses totaling to date:
Postcomplaint Fees $5290.75
Postcomplaint
Expenses $ 710.75
Total $6001.50
ORDER
On the filing of the Board's final decision with the
Board's Director, Division of Administration, as required
by Board Rule 102.155, the Board shall pay to the Appli-
cant the sum of $6001.50.