York Printing Co.

National Labor Relations Board - Board Decisions

Sep 24, 1992

308 N.L.R.B. 983 (N.L.R.B. 1992)

983
308 NLRB No. 135
YORK PRINTING CO.
1 In her affidavit Hintz alludes to an emotional illness and to the
medication therefor. Although she identifies both, we believe that, in
the interests of privacy, it is inappropriate to set forth these matters
in detail.
2 As a related matter, there is also an issue as to why Hintz ulti-
mately mailed the documents to the correct place, i.e., the Board’s
office in Washington, D.C.
3 The Board notified the parties in a July 28, l992 letter that the
Respondent’s motion was granted and that cross-exceptions were due
on August 11, 1992. The letter further informed the parties that this
Order Granting Motion would follow.
York Printing Company and its Successor, York
Printing Services Company, Ltd. and Des
Moines Graphic Communications Union, Local
No. 86-C, Graphic Communications Inter-
national Union. Case 18–CA–11289
September 24, 1992
ORDER GRANTING MOTION
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On April 30, 1992, Administrative Law Judge Rich-
ard J. Boyce of the National Labor Relations Board
issued a Supplemental Decision and, on the same date,
the proceeding was transferred to and continued before
the Board in Washington, D.C. On May 29, 1992, the
Board granted the Respondent’s request for an exten-
sion of time to file exceptions to June 18, 1992. On
June 23, 1992, the Board received the Respondent’s
exceptions, postmarked and mailed on June 18. On
June 24, 1992, the Board rejected the exceptions as un-
timely.
On July 13, 1992, the Respondent filed a motion to
file exceptions out-of-time under Rule 102.111(c) of
the Board’s Rules and Regulations. In support of its
motion, the Respondent provided an affidavit from its
president, Elizabeth Terrill Hintz. She is not an attor-
ney and she appears pro se.
The exceptions were due, in Washington, D.C., on
June 18, 1992. Hintz avers that the necessary docu-
ments were ready by June 17 and were in her home
in Des Moines on that date. Apparently, her intention
was to deliver the documents ‘‘by hand’’ in Minneapo-
lis on June 17. She planned to fly to that city on that
date. Minneapolis is the site of the Regional Office in
which this case was processed. Hintz appears to have
been under the impression that the documents could be
filed by hand with the Board at its office in Minneapo-
lis. Of course, she was incorrect in this respect. How-
ever, given her lack of legal training and her emotional
state,1 we are unwilling to say that this error con-
stituted inexcusable neglect.
Hintz’ plans were thwarted because of a burglary in
her home between 4:30 and 5:15 a.m. on June 17.
Hintz alleges that luggage was taken and that the ex-
ceptions were in the luggage. She immediately filed a
police report. She reconstructed the documents on June
17 and mailed them on June 18, 1 day late under the
‘‘postmark’’ rule.
There is a factual issue with respect to whether the
documents were in the luggage that was stolen. Our
dissenting colleague points to various factors which
lead him to believe that the documents were not in the
luggage and therefore were not taken. Concededly,
these factors raise an issue as to whether Hintz is tell-
ing the truth in this respect.2 In these circumstances,
the Board could hold a hearing to decide the issue of
whether the documents were in the stolen luggage.
Given our limited resources, we do not consider it pru-
dent to expend further resources to decide this factual
issue. This is particularly so where, as here, the resolu-
tion of the issue is not germane to the question of
whether an unfair labor practice has been committed
but rather only to the question of whether exceptions
should be accepted. Consequently, we shall give Hintz
the benefit of the doubt and take her at her word.
Based on the above, we have decided to accept the
exceptions.3
MEMBER OVIATT, dissenting.
Contrary to my colleagues, I would deny the Re-
spondent’s motion under Section 102.111(c) of the
Board’s Rules and Regulations to file exceptions out-
of-time. Because of the significant inaccuracies in the
evidence submitted by the Respondent to support its
claim that its exceptions were untimely filed because
they were stolen, I reject its claim of ‘‘excusable ne-
glect.’’
Section 102.111(c) provides, in pertinent part, that:
In unfair labor practice proceedings, motions, ex-
ceptions, answers to a complaint or a backpay
specification, and briefs may be filed within a rea-
sonable time after the time prescribed by these
rules only upon good cause shown based on ex-
cusable neglect and when no undue prejudice
would result.
Section 102.111(c) further provides that a party re-
questing leave to file out-of-time pleadings must sup-
port its request with sworn affidavits from individuals
having personal knowledge of the facts supporting the
request.
Exceptions to the administrative law judge’s supple-
mental decision were originally due on May 28, 1992.
The Respondent requested and received an extension
until June 18, 1992, to file exceptions. The Respondent
alleges that it did not file its exceptions until June 23
because they were stolen and advances this alleged
theft as ‘‘excusable neglect’’ under Section 102.111(c).
In support of its ‘‘excusable neglect’’ defense, the
Respondent provided the sworn affidavit of its presi-
dent, Elizabeth Terrill Hintz, stating that she prepared
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Hintz stated that nothing besides the luggage was taken.
2 As the Respondent had no compunction about tampering with po-
lice documents, I think it equally likely that Hintz’ ‘‘June 17’’ list
of stolen items was not prepared until after the Board notified the
Respondent that its exceptions were rejected.
10 copies of the exceptions without assistance of legal
counsel. Hintz further averred that she was booked on
a 6:05 a.m. flight from Des Moines to Minneapolis on
June 17, and that between 4:30 a.m. and 5:15 a.m. on
June 17, 1992, her home was burgled and luggage con-
taining the exceptions was stolen.1 Hintz stated that
she immediately filed a police report but that, because
she was required to attend a convention in Great Falls,
Montana, the next day, she was unable to make more
copies of the exceptions and mail them until June 18,
the due date.
As part of its motion, the Respondent included
Hintz’ lists of the stolen items—dated June 17 and 30,
and a copy of the June 17 theft report that Hintz filed
with the Des Moines police. This police report listed
the stolen items as:
1 LARGE SUITCASE WITH VERIOUS [sic]
CLOTHES, PApers, MAil
1 SML CARRYON CASE WITH MAKEUP &
MEDICATION, Misc. PApers [Emphasis added.]
An examination of this report discloses that the
italicized words, ‘‘PApers, MAil’’ and ‘‘Misc. PA-
pers,’’ are written in a different script and apparently
with a different pen from the remainder of the police
report. The text of the police report is clearly incon-
sistent and of suspicious origin, particularly because
the accompanying, typed, police verification of loss re-
port catalogued the stolen items as ‘‘large suitcase with
various clothes value $900; [and] ‘small carry on case
with makeup and medication value $400.’’’ The police
verification report made no mention of allegedly stolen
Board exceptions, or other documents.
In its opposition to the Respondent’s claim of ‘‘ex-
cusable neglect,’’ the Union challenged the veracity of
the Respondent’s assertions questioning, among other
things, why Hintz purportedly placed multiple copies
of the exceptions in her suitcase when she intended to
mail them. Additionally, the Union supplied the Board
with a copy of the June 17 theft report it obtained
from the Des Moines Police Department. This copy
unequivocally establishes that the Respondent submit-
ted altered evidence in support of its motion to file ex-
ceptions out-of-time. Thus, this report lists the alleg-
edly stolen items as only:
1 LARGE SUITCASE WITH VERIOUS [sic]
CLOTHES
SML CARRYON CASE WITH MAKEUP &
MEDICATION
Further, this report is accompanied by an affidavit
from Des Moines Police Detective Bill Boggs who
states that these were the only items reported stolen in
the June 17 police report, and that Hintz did not pro-
vide the police with her lists of stolen items until July
1, 1992.
Considering the evidence in its entirety, it is clear
that Hintz never claimed to the police on June 17 that
exceptions or other documents had been stolen. Neither
did the Respondent promptly inform the Board that
these documents had been taken. It seems clear that
only after the Board wrote the Respondent on June 24,
rejecting its exceptions as untimely filed, did Hintz in-
form the police (through her lists of stolen items) that
the exceptions had been taken,2 and proffer obviously
falsified documents to the Board in order to establish
the Respondent’s claim of ‘‘excusable neglect.’’
In other circumstances I might have sympathized
with the pro se Respondent. Given the instant facts and
fabrications, however, I do not. On the contrary, I find
that the Respondent’s conduct in apparently attempting
to construct a claim of ‘‘excusable neglect’’ dem-
onstrates a contempt for Board processes that I, for
one, am unwilling to countenance. See, generally,
Kanakis Co., 293 NLRB 435, 436 (1989).
Accordingly, I dissent.