UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1149
B&G BUILDING MAINTENANCE, INCORPORATED,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent.
No. 04-1238
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
B&G BUILDING MAINTENANCE, INCORPORATED,
Respondent.
On Petition for Review and Cross-petition for Enforcement of an
Order of the National Labor Relations Board. (5-CA-29225)
Argued: October 27, 2004 Decided: January 6, 2005
Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.
Petition for review denied and cross-petition for enforcement
granted by unpublished per curiam opinion.
ARGUED: Douglas Michael Topolski, MCGUIREWOODS, L.L.P., Baltimore,
Maryland, for B&G Building Maintenance, Incorporated. Fred B.
Jacob, Appellate Court Branch, Office of General Counsel, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for the Board. ON BRIEF:
Elena D. Marcuss, MCGUIREWOODS, L.L.P., Baltimore, Maryland, for
B&G Building Maintenance, Incorporated. Arthur F. Rosenfeld,
General Counsel, John E. Higgins, Jr., Deputy General Counsel, John
H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, Margaret A. Gaines, Settlement Director,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
B&G Building Maintenance, Inc. (B&G) petitions for review
of an order of the National Labor Relations Board (the Board). The
order granted summary judgment against B&G and included Board
findings that the company had engaged in unfair labor practices
against its employees in violation of section 8(a)(1) and (3) of
the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3).
The case involves a March 2001 settlement between B&G, a small
cleaning contractor, and the Board. The settlement related to
charges that B&G attempted to prevent its employees from
unionizing. B&G agreed to pay a total of $28,000 to eight
aggrieved employees in four installments. To ensure B&G’s
performance, the settlement provided that if B&G failed to meet its
obligations, the Board could find the allegations of the General
Counsel’s complaint to be true and enter an appropriate order
against B&G.
On July 23, 2001, the Board’s General Counsel filed a
motion for summary judgment with the Board on the ground that B&G
was in substantial breach of the settlement agreement. The Board
issued B&G a notice to show cause why summary judgment should not
be granted against it; however, due to an “inadvertent error,” J.A.
176, the notice was sent to the wrong address. In the absence of
a response, the Board assumed that B&G had decided not to contest
the motion, awarded summary judgment, and found that B&G had
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committed the unfair labor practices alleged in the General
Counsel’s complaint. On September 3, 2002, the Board filed an
application for enforcement of its order in this court. B&G
opposed the motion on the grounds that it had not received notice
of the show cause order in time to defend itself. After initially
disputing B&G’s account, the Board withdrew its application for
enforcement on October 1, 2002.
On March 5, 2003, the Board issued B&G a second notice to
show cause, this time mailing it to the correct address. The
deadline for B&G’s response was March 20, 2003. B&G’s lead counsel
was on vacation the week of March 17, 2003, and, before leaving, he
had asked an associate to oversee the filing of the response. Due
to a miscommunication between lead counsel and the associate, the
associate believed the deadline was Friday, March 21, 2003, and she
filed the response on that date. On April 4, 2003, the Board
notified B&G by telephone that the response was one day late. B&G
promptly filed a motion asking the Board to accept the late
response. The motion was supported by the associate’s affidavit,
which stated that the day-late filing was caused by the
miscommunication. On May 21, 2003, the Board issued an order
denying B&G’s motion to accept its response. The Board then
treated the General Counsel’s motion for summary judgment as
uncontroverted, found that B&G had engaged in the unfair labor
practices alleged in the complaint, and on May 30, 2003, ordered
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remedies accordingly. Later, the Board filed an application in
this court seeking summary enforcement of its May 30, 2003, order.
B&G argued in response that the Board abused its discretion by
refusing to accept B&G’s late filing. We denied the Board’s
summary enforcement application, and the Board filed a cross-
petition for enforcement.
The Board’s regulations provide that pleadings filed late
will be accepted “only upon good cause shown based on excusable
neglect and when no undue prejudice would result.” 29 C.F.R.
§ 102.111(c). A determination of excusable neglect is based on
several factors, including “the danger of prejudice [to the
opposing side], the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including whether
it was within the reasonable control of the movant, and whether the
movant acted in good faith.” Pioneer Investment Services Co. v.
Brunswick Assoc., 507 U.S. 380, 395 (1993). The most important of
these factors is the untimely party’s reason for delay. Thompson
v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir. 1996).
Even if all of the other factors weigh in favor of the untimely
party, neglect is not excusable “when there is no proffered reason
that would justify, or . . . plausibly explain, [the] misreading of
the rules.” Hospital Del Maestro v. NLRB, 263 F.3d 173, 175 (1st
Cir. 2001). The Board has held that “a late document will not be
excused when the reason for the tardiness is solely a
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miscalculation of the filing date.” Int’l Union of Elevator
Constructors, Local No. 2, 337 N.L.R.B. 426, 428 (2002). Here, the
Board denied B&G’s motion to accept its late filing on the ground
that the reason for the delay -- miscommunication between B&G’s
counsel as to the due date -- “do[es] not rise to the level of
excusable neglect.” J.A. 203.
B&G argues that the Board abused its discretion by
declining to find excusable neglect. It emphasizes that a one-day
delay is the shortest possible, that it acted in good faith, and
that a finding of excusable neglect would not prejudice the
opposing side. It also notes that neither the General Counsel nor
the charging party opposed the motion to file out of time and that
B&G cooperated fully with the General Counsel when the Board
mistakenly sent the original order to show cause to the wrong
address.
A showing of excusable neglect requires at least some
“pardonable reason” for failure to meet the deadline. Del Maestro,
263 F.3d at 175. The only reason given by B&G is that its lead
counsel was on vacation, and there was a miscommunication about the
filing deadline between lead counsel and the associate who was to
take care of the filing. B&G argues that a miscommunication,
unlike carelessness or a miscalculation of the deadline, is
sufficient to find excusable neglect when all of the other factors
weigh in the late party’s favor. Pioneer, however, cautioned that
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excuses such as “upheaval in [an attorney’s] law practice” should
be given little weight “[i]n assessing the culpability of . . .
counsel.” Pioneer, 507 U.S. at 398. This suggests that the Board
did not err in concluding that the explanation offered here --
miscommunication among counsel about a filing deadline as lead
counsel was leaving for vacation -- does not amount to excusable
neglect. Although we are sympathetic to B&G’s position, we cannot
say that the Board abused its discretion by rejecting B&G’s
untimely response. Accordingly, we deny B&G’s petition for review
and grant the Board’s cross-petition for enforcement of its order.
PETITION FOR REVIEW DENIED AND
CROSS-PETITION FOR ENFORCEMENT GRANTED
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