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
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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).
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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
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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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