Lord Jim 's

National Labor Relations Board - Board Decisions

Sep 30, 1982

264 N.L.R.B. 1098 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lord Jim's and Hotel and Restaurant Employees
and Bartenders Union, Local 2, Hotel and Res-
taurant Employees and Bartenders International
Union, AFL-CIO. Cases 20-CA-15570 and 20-
CA-15793
September 30, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On August 9, 1982, Administrative Law Judge
Jay R. Pollack issued the attached Supplemental
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions' of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
It is hereby ordered that the application of the
Respondent, Lord Jim's, San Francisco, California,
for an award under the Equal Access to Justice
Act be, and it hereby is, dismissed.
I In its exceptions, Respondent argues that the General Counsel has
failed to prove that its application was not timely received by the Board.
We find no merit in this contention. We note that, on March 1, 1982,
Respondent was duly served with a copy of an Order issued by the
Board's Executive Secretary referring the instant matter to the Adminis-
trative Law Judge, and noting that Respondent's application was filed
with the Board in Washington, D.C., on February 24, 1982. Moreover,
the Board takes administrative notice of its own files which clearly re-
flect that Respondent's application was received on that date. Since, as
we held in Monark Boat Company, 262 NLRB 994 (1982), the 30-day
filing requirement of the Equal Access to Justice Act is jurisdictional and
thus must be construed strictly, we find, in agreement with the Adminis-
trative Law Judge, that Respondent's application must be dismissed.
Respondent also contends that the Board's San Francisco Regional
Office was timely served with a copy of the application and that this
should be found to constitute proper filing. We do not agree. Pursuant to
Sec. 102.148(a) of the Board's Rules and Regulations, Series 8, as amend-
ed, an application for an award "shall be filed in triplicate with the Board
in Washington, D.C." This section goes on to require that the Regional
Director also be served with a copy of the application, and it is thus
clear that service on the Regional Director is an additional, and not an
alternative, requirement. Moreover, although the Administrative Law
Judge found that the 30th day after the Board's decision dismissing the
complaint was Monday, February 22. 1982, and Respondent avers that its
application was received by the Regional Office on that date, our calcula-
tions show that the 30th day after entry of the Board's decision was on
Sunday, February 21. Since Respondent did not file its application 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 timley, even had it been properly made in Washington.
See Monark Boat. supra, fn. 5.
264 NLRB No. 147
SUPPLEMENTAL DECISION
(EQUAL ACCESS TO JUSTICE ACT)
JAY R. POLLACK, Administrative Law Judge: On Jan-
uary 22, 1982, the National Labor Relations Board issued
a Decision and Order in the above-captioned case (259
NLRB 1162) adopting my recommended Order, dismiss-
ing the complaint in Case 20-CA-15570 in its entirety,
and finding that Lord Jim's, herein called the Applicant,
had violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, in Case 20-CA-15793.
On February 24, 1982, the Applicant filed an applica-
tion for Attorneys' Fees and Expenses Under the Equal
Access to Justice Act, Pub. L. 96-481, 94 Stat. 2325 and
Section 102.143 of the Board's Rules and Regulations.
On February 26, the Board referred this matter to me for
appropriate action. Thereafter, on March 19, 1982, the
Board's General Counsel filed a "Motion To Dismiss the
Application." The Applicant filed a memorandum dated
April 16, 1982, in opposition to the General Counsel's
motion. On April 26, 1982, I issued an order denying the
General Counsel's motion to dismiss the application.
Thereafter the General Counsel, by motion dated May
17, 1982, filed a motion for reconsideration. On May 18,
I issued an order denying the General Counsel's motion
for reconsideration. On July 28, 1982, the General Coun-
sel filed a second motion for reconsideration. On July 30,
the Applicant filed a response to the General Counsel's
motion.
The gravamen of the General Counsel's motion to dis-
miss is that the application was untimely.' In my orders
denying the motion to dismiss and denying the motion
for reconsideration I found that the application was
timely. However, in the light of the Board's Decision in
Monark Boat Company, 262 NLRB 994 (1982), 1 must re-
consider my prior rulings in this case.2
The relevant facts are as follows: On January 22, 1982,
the Board issued its Decision and Order dismissing the
complaint in Case 20-CA-15570 in its entirety. On Feb-
ruary 19, 1982, the Applicant mailed its application for
award to the Board. The application was due on the 30th
day after the entry of the Board's Order, i.e., on
Monday, February 22, 1982. However, apparently due to
a delay in mail delivery the application was not received
by the Board until Wednesday, February 24, 1982.
Thus, at issue is whether an application for an award
of attorney's fees and expenses mailed 3 days before the
due date and untimely filed because of postal delays may
be considered as if timely filed.
In Monark Boat Company, supra, the Board declared
that the filing requirements of the Equal Access to Jus-
I Sec. 504(a)(2) of the Equal Access to Justice Act provides that a
party seeking attorney's fees and other costs "shall, within thirty days of
a final disposition in the adversary adjudication submit an application" to
the Board.
2 The Applicant contends that there is no provision in the Board's
rules for motions for reconsideration of an order denying a motion to dis-
miss an application for an award of fees. Since the order denying the
motion to dismiss was an interim order and because no decision or final
order has issued, I find it is inherently within my authority to reconsider
my previous order. This is especially true in this case where an interven-
ing Board decision has issued in a heretofore unsettled area of the law.
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LORD JIM'S
tice Act, as an exception to sovereign immunity, must be
construed strictly.3 The Board noted that Congress in-
tentionally drafted the 30-day filing period as a manda-
tory condition and concluded that the 30-day period was
a jurisdictional prerequisite which the Board could not
legally extend. Thus, the Board's retionale in Monark
Boat Company leads to the conclusion that the Board
would not extend the filing period for an application for
attorney's fees and expenses even if the delay in filing
was caused by a postal service delay or other factor out-
side the applicant's control. Under the Monark Boat
Company rationale the Board and its administrative law
judges are without jurisdiction to consider an application
which is not filed within the specified statutory jurisdic-
tional time period.
I find the cases cited4 by the Applicant for the propo-
sition that delays in postal service should not be an
excuse to defeat full litigation of a dispute on its merits
to be inapposite. The Applicant's cases all involve situa-
3 Citing United States v. Sherwood, 312 U.S. 584, 586, 590-591 (1941)
4 N.LR.B. v. Marshall Maintenance Corp., 320 F. 2d 641 (3d Cir. 1963).
Livingston Powdered Metal. Inc. v. N.L.R.B., 669 F.2d 133 (3d Cir. 1982):
N.LR.B. v. Zeno Table Company, Inc., 610 F.2d 567. 569 (9th Cir 1979):
Kessler Institute for Rehabilitation v. V.L.R.B.. 669 F.2d 138 (3d Cir
1982).
tions where a court liberally construed the Board's rules
regarding the filing of an answer or the filing of excep-
tions in order to avoid a default judgment. The instant
case involves a jurisdictional filing requirement which
the Board has found must be strictly construed and
which the Board has decided it is without jurisdiction to
extend. I am therefore compelled to dismiss the instant
application for lack of jurisdiction.
Upon the foregoing findings and conclusions, and the
entire record, and pursuant to Section 102.153 of the
Board's Rules, I hereby issue the following recommend-
ed:
ORDER 5
It is hereby ordered that the instant application of
Lord Jim's for an award under the Equal Access to Jus-
tice Act be, and it hereby is, dismissed.
I All outstanding motions inconsistent with this recommended Order
are herehy denied. In the event no exceptions are filed as provided by
Sec 102 46 of the Rules and Regulations of the National Labor Relations
Hoard, the findings. conclusions, and recommended Order herein shall, as
provided in Sec. 10248 of the Rules and Regulations. be adopted by the
Board and become its findings. conclusions, and Order, and all objections
thereto shall he deemed waived for all purposes.
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