R.M. Shoemaker Co. see Carpenters (R.M. Shoemaker)

National Labor Relations Board - Board Decisions

Dec 5, 2000

332 N.L.R.B. 1340 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1340
Metropolitan Regional Council of Philadelphia and
Vicinity of the United Brotherhood of Carpen-
ters and Joiners of America and R.M. Shoe-
maker Co. Cases 4–CC–2203–2, 4–CC–2220–2,
4–CC–2241–1, and 4–CC–2241–3
December 5, 2000
ORDER
R.M. Shoemaker Co.’s Rule 102.111(c) Motion to
Consider as Timely its Answering Brief to the General
Counsel’s Exceptions to the Decision of the Administra-
tive Law Judge is denied.
The Board’s so-called “postmark rule” expressly sanc-
tions the filing of documents by delivery service, even if
they do not arrive on the due date, provided that the
documents are deposited with the delivery service no
later than the day before the due date. In this case, how-
ever, under the rubric of the so-called “excusable ne-
glect” Rule, the Charging Party requests that we accept
its answering brief, which was deposited with a delivery
service on the day it was due, and did not arrive until the
next day. This interpretation of “excusable neglect” un-
dermines the “postmark rule” as it applies to filing by
delivery service.
The facts, as set forth in the affidavit in support of the
Charging Party’s motion, are straightforward. The Gen-
eral Counsel filed timely cross-exceptions to the admin-
istrative law judge’s decision on October 3, 2000. Pur-
suant to Section 102.46(d)(1) of the Board’s Rules and
Regulations, any answering brief to those cross-
exceptions was due 14 days later, or October 17, 2000.
The Charging Party’s counsel delivered the answering
brief to the U.S. Airways PDQ service at Philadelphia
National Airport at approximately 11:45 am on October
17, 2000, for placement on a 12:49 p.m. flight to Wash-
ington, D.C., where it was to be picked up by a ground
delivery service upon the flight’s scheduled arrival at 2
p.m., for delivery to the Board’s offices by the close of
business that day. For some reason, however, the docu-
ment did not make it to Washington on the flight that
arrived at 2 p.m. Instead, it arrived on another flight at
5:05 p.m., after the close of business of the Board’s
Washington office, and was not delivered until 9:20 am
the next day, October 18, 2000, 1 day after the document
was due.
The Board’s general Rule is that “[w]hen the Act or
any of these Rules require the filing of a motion, brief,
exception, or other paper in any proceeding, such docu-
ment must be received by the Board or officer or agent
designated to receive such matter before the official clos-
ing time of the receiving office on the last day of the time
limit, if any, for such filing . . . .” NLRB Rules and
Regulations, § 102.111(b). This general Rule is modi-
fied by what has become known as the “postmark rule,”
which provides that “[i]n construing this section of the
rules, the Board will accept as timely filed any document
which is hand delivered to the Board on or before the
official closing time of the receiving office on the due
date or postmarked on the day before (or earlier than) the
due date; documents which are postmarked on or after
the due date are untimely. “Postmarking” shall include
timely depositing the document with a delivery service
that will provide a record showing that the document was
tendered to the delivery service in sufficient time for
delivery by the due date, but in no event later than the
day before the due date.” Id. (Emphasis added.)
The “postmark rule” was issued in 1986, and it was, in
fact, a codification of longstanding practice that was
based on the Board’s decision in Rio de Oro Uranium
Mines, Inc., 119 NLRB 153 (1957). See 51 F.R. 23744,
23745 (July 1, 1986). In Rio de Oro, the Board accepted
objections to an election that the employer deposited for
mailing by airmail, registered, special delivery, on the
day before the due date, but that did not arrive until the
day after the due date. The Board held that, in those cir-
cumstances, the employer “took every precaution neces-
sary” to assure that the objections would be received by
the due date. Id., 119 NLRB at 154. The Board thereaf-
ter continued to accept documents that were postmarked
the day before the due date, but the practice was not
codified in the Rules. In 1984, the District of Columbia
Circuit, noting that the Board’s Rules did not clearly de-
fine what constitutes timely “filing” of a document, re-
versed the Board’s decision to reject exceptions to an
administrative law judge’s decision which were mailed
on the date that they were due. NLRB v. Washington
Star Co., 732 F.2d 974. The court held that “[i]f the
Board articulates its reasons for a strict rule that requires
filings to be in hand on the due date and announces that it
will apply this rule uniformly or with specific stated ex-
ceptions then this court would be obliged to defer to the
Board’s discretion and authority.” Id. at 977. The Board
issued Section 102.111(b) in 1986, in direct response to
this invitation by the D.C. Circuit in the Washington Star
case to “specifically define what constitutes filing.” 51
F.R. at 23745.
It is abundantly clear that Section 102.111(b) was in-
tended to comply with the D.C. Circuit’s suggestion to
put in place a “strict rule that requires filings to be in
hand on the due date . . . with specific stated exceptions,”
one of those exceptions being the so-called “postmark
rule.” The Board adopted this Rule in order to avoid
what the Court called the Board’s “sometimes-yes, some-
times-no, sometimes-maybe policy of due dates,” i.e., its
332 NLRB No. 140
CARPENTERS (R.M. SHOEMAKER CO.) 1341
inconsistent application of Rules regarding when docu-
ments are due and when they are not (NLRB v. Washing-
ton Star, supra, 732 F.2d at 977), and to provide parties
with clear guidance as to when their documents are due.
In 1991, the Board further modified the “postmark rule”
to define the phrase “postmarking” to mean timely de-
positing documents with a delivery service that will pro-
vide a record showing that the document was tendered to
the delivery service in sufficient time for filing by the
due date, but in no event any later than the day before the
due date. 56 F.R. 49141, 49142 (Sept. 27, 1991). See
John I. Haas, Inc., 301 NLRB 300, 301 fn. 6 (1991).
When the Board added this delivery service gloss to
the “postmark rule,” it was undoubtedly aware of the
existence of “same day” air delivery services like that
used by the Charging Party in this case. Nevertheless, it
chose to include explicit language which states that a
document delivered to a delivery service will “in no
event” be considered to be timely filed if it is either not
received on the due date or if it is not delivered to the
delivery service at least one day before it is due. The
Rule could not be more clear, and only one conclusion
can be drawn from this very explicit language: a party
acts at its peril if it delivers a document to a delivery ser-
vice on the same day that it is due. If it arrives before the
close of business on that day, it will be accepted as
timely, but if it does not, it will not be considered timely.
This Rule serves the laudable purpose of discouraging
parties, or their attorneys, from waiting, almost literally,
until the eleventh hour to file documents. The provision
also affords parties the certainty and consistency re-
quested by the D.C. Circuit as to when a document will
and will not be considered timely if it is filed by way of a
delivery service.
Given the express language and the origins of this pro-
vision, the “excusable neglect” Rule does not govern this
case. Under that Rule, certain documents (including the
answering brief filed by the Charging Party in this case)
“may be filed within a reasonable time after the time
prescribed by these rules only upon good cause shown
based on excusable neglect and when no undue prejudice
would result.” Section 102.111(c) of the Rules and
Regulations. In this case, the Charging Party’s answer-
ing brief was not placed on the intended flight, and thus
did not arrive as scheduled. Certainly, that “neglect” was
not the Charging Party’s fault, and thus was “excusable”
in that sense. But, the Charging Party did neglect to
deliver the answering brief to a delivery service at least a
day before it was due. The Charging Party has not ar-
gued, or offered any reason to conclude, that its failure to
deposit the answering brief with the delivery service on
the day before the due date was based on excusable ne-
glect. The Charging Party, which is charged with knowl-
edge of all of our Rules, therefore acted at its peril and
assumed the risk that the “same-day” delivery service
would not deliver the answering brief by close of busi-
ness on the due date. Thus, we cannot accept that an-
swering brief as a timely filed document because it was
neither received by close of business on the due date nor
deposited with a delivery service at least one day prior to
that due date.
MEMBER HURTGEN, dissenting.
I would grant the Charging Party’s request for a 1-day
extension of the due date for the receipt of its answering
brief. No party opposes this request. Despite this, my
colleagues reject the request. I disagree.
In brief, the facts are as follows. The brief was due on
October 17 at 5 p.m. The Charging Party delivered it to
the delivery service at 11:45 a.m. on October 17. The
delivery service was to place the brief on a plane sched-
uled to arrive in Washington at 2 p.m., i.e., in time for
delivery to the Board before 5 p.m. For unexplained
reasons, but through no fault of the Charging Party, the
brief did not reach the Board until 9:20 a.m. the next
morning.
My colleagues reject the brief because the Charging
Party did not comply with the “postmark rule,” i.e. the
brief was not delivered to the delivery service on the day
before the due date.
The Charging Party asks the Board to accept the brief.
The Charging Party relies expressly on Section
102.111(c) of the Board’s Rules, the “excusable neglect”
provision. For the reasons set forth below, I would ac-
cept the brief.
I believe that my colleagues have effectively ignored
the “excusable neglect” Rule. I have applied it in the
instant case. Under that analysis, I assume arguendo that
the Charging Party’s failure to give the brief to the deliv-
ery service before the due date was “neglectful.” How-
ever, under the “excusable neglect” Rule, that is not the
end of the inquiry. Rather, the Board must consider
whether that neglect was “excusable.” I conclude that it
was excusable. The Charging Party gave the brief to the
delivery service at a time when it could reasonably be
expected that the brief would be received by the Board
on time. Indeed, but for the failure of others, the brief
would have been received on time. In these circum-
stances, I would find that the Charging Party’s “neglect”
was excusable.
My colleagues say that there can be no excuse in this
case because the Charging Party failed to give the docu-
ment to the delivery service prior to October 17. But that
analysis makes no sense. If the document had been
given to the delivery service before October 17, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1342
document would have been received as timely; the “ex-
cusable neglect” rule would not come into play at all.
Obviously, the “excusable neglect” rule only comes into
play where there is a failure to comply with NLRB
Rules. My colleagues therefore err when they fail to
apply the “excusable neglect” rule to the instant case.
My conclusion is not inconsistent with NLRB v. Wash-
ington Star, 732 F.2d 979 (1984). In that case, the court
told the Board that it could choose to have a strict “due
date” requirement. However, the Board subsequently
chose to have an exception to its “due date” requirement,
i.e., the Board has chosen to receive late documents if the
filing thereof is the result of excusable neglect. My col-
leagues nonetheless ignore the exception in this case, and
thereby flout the Board’s own Rule.
Further, my position does not render the “postmark”
rule a nullity as it applies to delivery services. If a party
delivers a document to a delivery service so late that it
cannot reasonably be expected to arrive at the Board on
time, the document should be rejected as untimely. That
is not this case.
Finally, as noted above, no party opposes the request
for an extension of time. In my view, that fact reflects a
practice of civility among these attorneys, which civility
ought to be encouraged. My colleagues effectively un-
dercut that practice.
Based on all of the above, I dissent.