Food & Commercial Workers Local 1996 (Visiting Nurse Health System)

National Labor Relations Board - Board Decisions

Apr 30, 2003

338 N.L.R.B. 1074 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1074
United Food and Commercial Workers, Local No.
1996 and Visiting Nurse Health System, Inc.
Case 10–CC–1335
April 30, 2003
SUPPLEMENTAL ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, WALSH, AND ACOSTA
The Motion for Reconsideration filed by Charging
Party VNHS, formerly known as Visiting Nurse Associa-
tions of Metropolitan Atlanta, Inc., on January 23, 2003,
is denied. The motion, filed more than 15 months after
the Board issued its September 28, 2001 Decision and
Order (336 NLRB 421), is untimely pursuant to Section
102.48(d)(2) of the Board’s Rules and Regulations,
which requires the filing of such motion within 28 days
after service of the Board’s decision. Section 102.48(d)
also provides that the Board, in its discretion, may extend
the 28-day period. In the instant case, the Charging Party
has failed to make a showing of excusable neglect and
lack of prejudice to support the filing of a motion for
reconsideration beyond the 28-day period, much less a
showing as to why that period should be extended 14
months beyond the 28 days. Accordingly, the Board will
not accept the motion.1 In any case, the Charging Party

1 The Charging Party’s citations of Laborers Local 840 (C.A. Blinne
Construction Co.), 135 NLRB 1153 (1962); Hotel & Restaurant Em-
has cited no “extraordinary circumstances” within the
meaning of Section 102.48(d)(2) that would support its
motion, even if it has been timely made. Insofar as
Charging Party cites changes in the composition of the
Board since the issuance of the decision, it relies on an
inappropriate ground for reconsideration. See Iron
Workers Local 471 (Wagner Iron Works), 108 NLRB
1237, 1239 (1954).
IT IS ORDERED that the Motion for Full Board Recon-
sideration is denied.

ployees Local 681 (Crown Cafeteria), 135 NLRB 1183 (1962); Hotel &
Restaurant Employees Local 89 (Stork Restaurant), 135 NLRB 1173
(1962), are misplaced as those decisions predate Sec. 102.48(d)(1), (2),
and (3), which became effective on August 1, 1963. The Board based
reconsideration in those cases on the “inadequate consideration” and
“lack of clarity” that arguably were reflected in its original decisions,
given their divergent rationales. This case does not present a similar
situation. Notably, the dissenting Board members in Laborers Local
840, supra, took the position that reconsideration was inappropriate
absent “extraordinary circumstances,” e.g., an intervening Supreme
Court decision or newly discovered evidence, 135 NLRB at 1168 fn. 31
(separate opinion by Members Rodgers and Leedom). Their view
ultimately was embodied in the Board’s rule on reconsideration.
Although Chairman Battista agrees with this disposition, he has
grave doubts about the legal correctness of the Board’s decision in the
underlying case. If an appropriate case is brought before the Board, he
would reconsider that decision.
Members Schaumber and Acosta did not participate in the underly-
ing case and they express no view regarding the merits of the Board’s
decision.

338 NLRB No. 163