United Auto., Aerospace and Agr. Implement Workers of America, AFL-CIO, Local 645 v. N.L.R.B.

• Decision Date: 11 May 1990
• Docket Number: 88-7374 and 88-7510,AFL-CI,L,LOCAL,Nos. 88-7297,s. 88-7297
• Citation: 902 F.2d 41
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,645, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Superior Industries International, Inc., Respondent-Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, United Automobile, Aerospace and Agricultural Implement Workers of America,ocal 645, Petitioner-Intervenor, v. SUPERIOR INDUSTRIES INTERNATIONAL, INC., Respondent. SUPERIOR INDUSTRIES INTERNATIONAL, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Automobile, Aerospace and Agricultural Implement Workers of America,ocal 645, Respondent-Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 41

902 F.2d 41

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, AFL-CIO, LOCAL 645, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Superior Industries International, Inc., Respondent-Intervenor.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

United Automobile, Aerospace and Agricultural Implement

Workers of America, AFL-CIO, Local 645, Petitioner-Intervenor, v. SUPERIOR INDUSTRIES INTERNATIONAL, INC., Respondent.

SUPERIOR INDUSTRIES INTERNATIONAL, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent,

United Automobile, Aerospace and Agricultural Implement

Workers of America, AFL-CIO, Local 645,

Respondent-Intervenor.

Nos. 88-7297, 88-7374 and 88-7510.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 1990.

Decided May 11, 1990.

Before HUG, SCHROEDER and CYNTHIA HOLCOMB HALL, Circuit Judges.

MEMORANDUM ^*

Superior Industries International asks us to overturn the National Labor Relations Board's entry of summary judgment against it after Superior filed an untimely answer to an unfair labor practice complaint. United Automobile, Aerospace and Agricultural Implement Workers of America, Amalgamated Local No. 645 ("UAW") petitions for review of the remedial portion of the Board's order.

The UAW won a representation election at Superior's Van Nuys, California facility on August 30, 1984. On May 21, 1987, the Board dismissed Superior's objections to the election and certified the UAW as the exclusive bargaining representative of Superior's employees. Superior refused to recognize or bargain with the UAW. On July 16, 1987, the UAW filed an unfair labor practice charge against Superior, alleging a violation of sections 8(a)(5) and (1) of the National Labor Relations Act. 29 U.S.C. Secs. 158(a)(5) and (1).

The complaint was served by certified mail upon both Superior and its attorney, Michael Schmier. Superior failed to file an answer within the required fourteen-day period. It filed an informal and untimely answer on its own behalf, stating its counsel was unavailable until after Labor Day. Its counsel did not file any response to the complaint and the General Counsel filed a motion for summary judgment with the Board in late September.

The Board granted the General Counsel's motion. It found that good cause did not exist for excusing Superior's late filing of its answer. The Board found that contrary to Superior's allegation, its attorney had received a copy of the complaint as indicated by signed postal receipts. Accordingly, the Board deemed the allegations of the complaint admitted and ordered Superior to cease and desist from refusing to bargain with the UAW and to provide the UAW with requested information. The Board also denied the UAW's request for litigation expenses as well as refused to enter a make whole remedy.

SUPERIOR'S CONTENTIONS

Turning first to Superior's contentions on appeal, we find that the Board did not err in entering summary judgment against Superior. First, we agree with the Board that Superior failed to establish good cause under 29 C.F.R. Sec. 102.20 for excusing the untimely filing of its answer. Superior argues that its attorney did not receive a copy of the unfair labor practice complaint. The record, however, supports the Board's finding to the contrary. See N.L.R.B. v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir.1989). The complaint was served upon the attorney by certified mail and the region received a signed postal receipt from the attorney's office. In response to this rather conclusive evidence of receipt, Superior lamely asserts that its attorney was at another location due to office renovation. We need not even entertain this belated assertion. See N.L.R.B. v. Marin Operating, Inc., 822 F.2d 890, 895 (9th Cir.1987). The record in this case shows a pattern of delay on the part of Superior.

Superior next contends that the Board erred in entering summary judgment against it because the General Counsel neglected to warn Superior when the time for filing a timely answer had elapsed. It relies on section 10280.3 of the Board's Casehandling Manual ("Manual"). We agree with the Board that any failure by the General Counsel to abide by the Guidelines did not estop pursuit of summary judgment. The Manual merely serves as a handbook for internal use. It provides guidance, not rules and therefore, does not bind the General Counsel. Cf. Schweiker v. Hansen, 450 U.S. 785, 786 (Social Security Administration not bound by its Claims Manual), rehg. denied 451 U.S. 1032 (1981); United States v. Caceres, 440 U.S. 741 (1979) (failure of an IRS agent to follow internal IRS electronic surveillance regulations did not require the suppression of tape recordings procured in violation of such regulations); Jacobo v. United States, 853 F.2d 640, 641 (9th Cir.1988) (Naval Ship's Technical Manual does not have the force of law). The Manual expressly states that its provisions merely provide "procedural and operational guidance for the Agency's staff ... and ... are not a form of authority binding upon the General Counsel or upon the Board." In United States v. Busher, 817 F.2d 1409, 1411 (9th Cir.1987), we held that a defendant could not rely on guidelines set forth in the U.S. Attorney's Manual, where the Attorney's Manual specifically stated that it did not create any rights enforceable at law nor limit the litigative prerogatives of the Department of Justice. The Board's Casehandling Manual contains virtually identical language, and similarly the Manual cannot be reasonably relied upon by respondents in unfair labor practice cases.

Finally, Superior argues that the Board's failure to act as a whole on Superior's motion to disqualify Board Member Johansen renders its bargaining order unenforceable. We lack jurisdiction to adjudicate this issue. Superior sought Member Johansen's disqualification during the representation/certification proceeding. Because election certifications are not final orders subject to appellate review, Superior had to raise its objections to certification,

                including that of Member Johansen's bias, during the unfair labor practice proceeding.   Wisconsin Department of Industry v. Gould, Inc., 475 U.S. 282, 288 n. 5 (1986);  N.L.R.B. v. Children's Baptist Home of Southern California, 576 F.2d 256, 261 (9th Cir.1978);  see, e.g., N.L.R.B. v. Best Products Co., Inc., 765 F.2d 903, 909 (9th Cir.1985).  When Superior failed to file a timely answer in the unfair labor practice case, the Board properly treated the proceeding as one in the nature of a default.  Any defenses, including the challenge to Member Johansen's participation in the case, were never before the Board and are not before us
                

THE UAW'S CONTENTIONS

We now turn to the UAW's request...