Steve Zappetini & Son, Inc.

National Labor Relations Board - Unpublished Board Decisions

Apr 23, 2015

20-CA-114390 (N.L.R.B. Apr. 23, 2015)

April 23, 2015
Steve Zappetini & Son, Inc.
Case 20-CA-114390
The Respondent’s requests that the Board accept its untimely-filed
exceptions and supporting brief are denied. The Respondent has failed to show
good cause for its failure to file timely exceptions or timely requests for
extensions of time to file exceptions.1 In these circumstances, where the

1 Contrary to the Respondent’s assertions, at all steps of this proceeding
Region 20 clearly explained the Respondent’s filing obligations to the
Respondent’s owner, Dave Zappetini. In this regard, because the
Respondent was not represented by counsel at the time, counsel for the
General Counsel sent Zappetini detailed information regarding the Board's
rules for filing exceptions and requests for extensions of time. On May 16,
2014, the Region’s trial attorney, Yasmin Macariola, sent an email to
Zappetini, which stated:
Please see Section 102.46 of the NLRB’s rules and regulations on
how to file an exception (which is an appeal). I have copied and
pasted it below. Please also remember, that until you offer Vernon
reinstatement, the backpay he is owed continues to accrue and is
not tolled.
This email included the complete text of Section 102.46. On June 3, in
response to Zappetini’s request for advice on how to get an extension of
time for filing his appeal, Macariola sent him an email, which asked him to
Please refer to section 102.111 of the rules and regulations
regarding the service and filing of papers. In particular you should
look at Sections (b)(4) and (c)(2).
Marcariola included in this email the complete text of Section 102.111,
which includes specific instructions on filing exceptions and requests for
extensions of time to file exceptions, including when such documents are
due.
United States Government
NATIONAL LABOR RELATIONS BOARD
1099 14th STREET NW
WASHINGTON DC 20570

Respondent was, on several occasions, specifically advised of the Board’s rules
and regulations concerning filing and was clearly notified concerning the
extended due date for the filing of exceptions, the Respondent’s asserted
reasons for its late filings do not rise to the level of excusable neglect. Union of
Elevator Constructors (Unitec Elevator Services Co.), 337 NLRB 426 (2002).
The Respondent was treated fairly throughout this proceeding, and the “particular
circumstances” offered as grounds for granting the requests to accept the late-
filed exceptions are insufficient to justify such a result.2

Despite this advice, the Respondent subsequently filed an untimely
request for an extension of time. The Board nevertheless granted the
Respondent an extension of time to August 5 to file its exceptions. The Board’s
order provided that no further extensions of time would be granted, and
explained that, pursuant to Sec. 102.111(b) of the Board's Rules and
Regulations, if not electronically filed with the Board through the Agency's
website by 11:59 p.m. EDT on August 5, the exceptions must be postmarked or
deposited with a delivery service no later than August 4, 2014.
No exceptions were filed with the Board by the new August 5 due date.
Instead, on August 14, the Board’s Executive Secretary was administratively
advised by Region 20 that the Respondent’s pro bono attorney, Nancy McCarthy,
had submitted to the Region a letter addressed to the Executive Secretary, dated
and postmarked August 5, with attached Exceptions and Brief, a request for
additional time to August 20 to file Amended Exceptions, and a request for oral
argument before the Board. The Region forwarded this submission to the Office
of the Executive Secretary, which rejected McCarthy’s August 5 letter and
accompanying exceptions and briefs and other requests, as untimely.
Subsequently, on August 20, McCarthy submitted a letter to the Executive
Secretary stating that she “will seek to establish the necessary good cause to
show that [Respondent’s] exceptions should be considered.”
On September 2, Zappetini filed a letter titled “Appeal requesting
consideration of my appeal papers.” Zappetini’s letter claimed that “All along this
NLRB process I feel I have been misled and not given any fair chance by your
lawyers and the NLRB judge.” On September 10, Zappetini filed with the Board
another “Appeal requesting consideration of my appeal papers.” This letter does
not offer any reason for the Respondent’s failure to file timely exceptions or a
timely request for a second extension of time.
2 Member Miscimarra agrees that the exceptions at issue were filed late based
on Respondent’s neglect, but Member Miscimarra believes it is appropriate to
grant the request to accept the late exceptions in the particular circumstances of
this case (the exceptions were filed by mail one day late on the date they would
have been timely if filed electronically; the Respondent was participating in this
matter pro se when the relevant deadline was established; it appears that
Respondent did not accurately convey the relevant postmark deadline to the pro
bono attorney who filed the exceptions; the lateness of one day does not appear
to have caused undue prejudice; and this matter is already before the Board
based on exceptions filed by the charging party).
By direction of the Board:

Henry S. Breiteneicher
Associate Executive Secretary
cc: Parties