Hospital Del Maestro v. National Labor Relations Board

          United States Court of Appeals
                       For the First Circuit


No.   00-1620

                        HOSPITAL DEL MAESTRO,

                             Petitioner,

                                 v.

                   NATIONAL LABOR RELATIONS BOARD,

                             Respondent.



                 ON PETITION FOR REVIEW OF AN ORDER

                OF THE NATIONAL LABOR RELATIONS BOARD



                               Before

                        Boudin, Chief Judge,

                Torruella and Selya, Circuit Judges.



     James W. McCartney, with whom Cancio, Nadal, Rivera, Díaz &
Berríos were on brief, for petitioner.
     James M. Oleske, with whom Linda Dreeben, Assistant General
Counsel and Julie F. Marcus, Attorney, were on brief, for respondent.



                           August 20, 2001
          Per curiam.    This case came before the National Labor

Relations Board (the "Board") on unfair labor practice charges filed by

Rosa Berríos and the Federación Puertorriqueña de Trabajadores and on

the issuance of a consolidated complaint by the Board's Puerto Rico

regional office. After a two-day hearing, an administrative law judge

issued a decision finding that petitioner Hospital del Maestro (the

"Hospital") had violated Section 8(a)(1) of the National Labor

Relations Act (the "Act"), 29 U.S.C. §§ 151 et seq., and recommended

that the Board enter a remedial order.

          On February 4, 2000, the Board issued an order transferring

the case to itself. The order, which was served on the Hospital and

its counsel, stated that exceptions to the decision of the

administrative law judge were to be received by the Board on or before

March 3, 2000. Attached to the order were excerpts from the Board's

rules and regulations relating to the filing of exceptions. These

rules, which include the computation of time for filing, state the

following:

          [T]he 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


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          by the due date, but in no event later than the
          day before the due date . . . .

N.L.R.B. Rule § 102.111(b). The rules further state that documents may

be filed after the time prescribed therein "only upon good cause shown

based on excusable neglect and when no undue prejudice would result."

Id. § 102.111(c).

          On February 8, 2000, the Hospital requested an extension of

time in which to file its exceptions to the judge's decision and

recommended order. The Board granted the Hospital an extension until

March 10, 2000. On March 9, 2000, the Hospital again requested an

extension of time, specifically requesting a due date of March 14,

2000. The Board granted the request, notifying the Hospital by letter

that the "[d]ate for receipt of exceptions and brief in Washington, DC

is extended to March 14, 2000."

          On March 14, 2000, the Hospital mailed to the Board, by

Federal Express overnight delivery, its exceptions to the judge's

decision and recommended order. The Board received the documents on

March 15. That same day, the Board sent a letter advising the Hospital

that, under the provisions of § 102.111 of the Board's rules, the

exceptions were "untimely and [could not] be forwarded to the Board for

consideration." On March 28, 2000, the Hospital filed a motion with

the Board to accept its exceptions out of time, stating as its reason

for delay that it had "misunderstood that the effective date of filing



                                 -3-
corresponded to the day that the Exceptions were notified by mail

[sic]." On April 5, 2000, the Board denied the Hospital's motion,

stating that "[t]he reasons provided for the late filing [did] not rise

to the level of excusable neglect." The Board thereafter adopted pro

forma the findings, conclusions, and recommended order of the

administrative law judge.     See 29 U.S.C. § 160(c),(e).

          In Pioneer Investment Services Co. v. Brunswick Associates

Ltd. Partnership, 507 U.S. 380 (1993), the Supreme Court examined the

phrase "excusable neglect," noting that it is "a somewhat 'elastic

concept' and is not limited strictly to omissions caused by

circumstances beyond the control of the movant." Id. at 392.1 The

Court concluded that the determination should take into account "all

relevant circumstances," including the "the danger of prejudice . . .

, the length of the delay and its potential impact on judicial

proceedings, the reasons for the delay, . . . and whether the movant

acted in good faith." Id. at 395. The Hospital argues that the Board

failed to consider all of these factors and thus erroneously denied its

late filing.    We review the Board's decision for an abuse of

discretion. Fall River Sav. Bank v. NLRB, 649 F.2d 50, 56 (1st Cir.

1981); Melrose-Wakefield Hosp. Ass'n v. NLRB, 615 F.2d 563, 567 (1st

Cir. 1980).

1 Although Pioneer involved the bankruptcy rules, we have acknowledged
that the Court's analysis provides guidance in other contexts. See
Pratt v. Philbrook, 109 F.3d 18, 19 (1st Cir. 1997).

                                 -4-
          The Hospital concedes that under the Board's rules, its

exceptions were required to be received on or before March 14, 2000, or

at least postmarked prior to that date. Its only justification for

having misunderstood those requirements, moreover, is the apparent

paradox that a mailing postmarked before March 14 but received more

than one day late would be considered timely, while a mailing

postmarked on the due date and received the next day would not. The

Hospital does indeed highlight a possible effect of the Board's rules.

However, it does not come close to explaining how this hypothetical

outcome rendered the rule itself unclear or ambiguous. We have no

basis for finding the Hospital's neglect "excusable" when there is no

proffered reason that would justify, or even plausibly explain, its

misreading of the rules. See Mirpuri v. ACT Manufacturing, Inc., 212

F.3d 624, 631 (1st Cir. 2000) ("A misunderstanding that occurs because

a party (or his counsel) elects to read the clear, unambiguous [rules]

. . . through rose-colored glasses cannot constitute excusable

neglect.").

          The Hospital argues that the other factors delineated in

Pioneer nevertheless tip the balance in its favor. It is true that the

delay in this case was only one day and that there was little danger of

prejudice to the other party. We may assume, moreover, that the delay

did not negatively impact the Board's proceedings and that the Hospital

acted in good faith. All of these taken together, however, would still


                                 -5-
not excuse an otherwise unjustified failure to abide by the Board's

deadline.    As the Eighth Circuit has correctly observed,

            The four Pioneer factors do not carry equal
            weight; the excuse given for the late filing must
            have the greatest import. While prejudice,
            length of delay, and good faith might have more
            relevance in a closer case, the reason-for-delay
            factor will always be critical to the inquiry. .
            . . [A]t the end of the day, the focus must be
            upon the nature of the neglect.

Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000).

As we have already noted, the Hospital has offered no pardonable reason

why it misconstrued the plain, unambiguous meaning of the Board's

rules. The favorable juxtaposition of the other Pioneer factors does

not, therefore, excuse the Hospital's oversight. We conclude that the

Board did not abuse its discretion in finding that the Hospital's

stated reason for its untimely filing did not rise to the level of

"excusable neglect."

            Affirmed.




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