N.L.R.B. v. Zeno Table Co., Inc.
| Decision Date | 03 October 1979 |
| Docket Number | No. 78-1934,78-1934 |
| Citation | 102 L.R.R.M. 2540,610 F.2d 567 |
| Parties | 102 L.R.R.M. (BNA) 2540, 103 L.R.R.M. (BNA) 2288, 87 Lab.Cas. P 11,594 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ZENO TABLE COMPANY, INC., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Edward S. Dorsey, N.L.R.B., Washington, D. C., for petitioner.
Warren C. Ogden, Mercer Island, Wash., for respondent.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before BROWNING and GOODWIN, Circuit Judges, and EAST *, District Judge.
The National Labor Relations Board applies for enforcement of its order holding that Zeno Table Company, Inc., ("Zeno") refused to bargain with the certified representative of its employees in violation of sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5) (1976), and requiring Zeno to bargain with the union upon request. We deny enforcement of the bargaining order and remand the case to the Board for further proceedings.
The dispute arose from a contested certification election held in April 1976, in which a substantial majority of Zeno's employees voted in favor of union representation. After lengthy and contested certification proceedings, in June 1977 the Board certified the Union as the collective bargaining representative of Zeno's employees. Zeno thereupon refused to bargain with the union in order to obtain review of the Board's certification decision. The union filed its unfair labor practice charge with the Board.
The General Counsel issued an unfair labor practice complaint on August 4, 1977. The complaint was served on Zeno at its company offices and on Zeno's counsel, Fred Long, at an office he maintained in Southern California. The latter copy was evidently accepted by an employee of another person sharing space in the office used by Long and was subsequently misplaced. In any event, Long, who was on vacation at the time, did not become aware of the complaint until August 27, ten days after the answer was due. 29 C.F.R. § 102.20 (1978). Meanwhile, on August 19, the General Counsel had called Long's office in Southern California. The General Counsel spoke with a non-attorney labor consultant regarding the necessity of an answer to the complaint. The record does not show that this person had prior knowledge of the existence of the complaint. When no answer was received, the General Counsel moved for summary judgment on August 24.
Long received notice of the motion for summary judgment and a copy of the complaint on August 27, and two days later filed an answer to the complaint and an explanation for the delay. In essence, Long contended that service of the complaint was improper because it was served on him at his Southern California office rather than his Northern California office, from which he had made his appearances on behalf of Zeno in this case and at which he had been contacted previously with respect to the certification dispute. Long further argued that the answer, even if untimely, should be considered by the Board because the General Counsel had known of Long's vacation, which was the cause of the default.
The Board rejected Long's procedural arguments, pointing out that service of the complaint was made at an address shown on other papers in the underlying representation proceedings. The Board also said that Long's vacation was not an "extraordinary circumstance" that would excuse the untimely filing. The Board then "deemed" the allegations of the complaint admitted, 29 C.F.R. § 102.20 (1978), and entered summary judgment on the complaint.
At the outset, we are met with the contention that this case is controlled by section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) (1976), providing in pertinent part:
" * * * No objection that has not been urged before the Board * * * shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances."
The Board then contends that enforcement of the summary judgment should be granted as a matter of course because Zeno's failure to file a timely answer was not excused by extraordinary circumstances.
This argument misconstrues both the nature of our review and the issue on this appeal. We are not concerned at this time with Zeno's objections to the certification election itself. These objections were not considered by the Board, and we express no opinion as to their merits.
The issue here is whether the Board should have considered Zeno's answer to the complaint, in which those objections were presented, before rendering its order. Zeno's contentions with respect to the refusal to consider its answer were presented to the Board, and section 10(e) does not limit our review of the Board's treatment of the answer.
We are limited, however, in our review of the procedural matters presented here, to the question whether the Board abused its discretion in refusing to consider Zeno's answer (See N. L. R. B. v. Glacier Packing Co., 507 F.2d 415, 416 (9th Cir. 1974)), because it applied the "extraordinary circumstance" rather than the "good cause" standard to Zeno's reasons for the late filing. The Board is vested with great discretion in the resolution of unfair labor practice disputes but may not employ this authority in a manner which deprives a party of a fair and adequate hearing. See Great Lakes Screw Corp. v. N. L. R. B., 409 F.2d 375, 378-79 (7th Cir. 1969).
The Board's regulations provide that, if no answer to the complaint is received within the time provided, the allegations of the complaint shall be deemed admitted unless "good cause" to the contrary is shown. 29 C.F.R. § 102.20 (1978). This "good cause" standard is not defined, but it appears to be less stringent than the "extraordinary circumstances" governing the application of section 10(e) of the NLRA. The purpose of the latter is to afford the Board the opportunity to bring its expertise to bear on a labor relations problem and thereby give the court the benefit of that expertise in reviewing the Board's decision. See N. L. R. B. v. Allied Products Corp., Richard Brothers Division, 548 F.2d 644, 653 (6th Cir. 1977). The purpose of the "good cause" standard, however, is to ensure that the Board makes decisions on the merits despite technical and...
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