PETITION FOR REVIEW AND CROSS-APPLICATION FOR SUMMARY ENTRY OF A JUDGMENT ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD (10-CA-15795) (253 NLRB No. 73)
Before Aldisert, Rosenn and Weis, Circuit Judges.
As this case demonstrates, "better late than never" is not necessarily a reliable adage for a lawyer who represents a client before an administrative agency. The controversy here began when an employer's answer to an NLRB complaint was held untimely because it was received several days after the date it was due to be filed, even though it was mailed on the due date. The Board decided that "late" was the same as "never" and entered a default against the employer. Because the answer alleges defenses that deserve evaluation by the agency, late filing would not have delayed a hearing, and, because other equities were present, we conclude that the Board abused its discretion in refusing to accept the answer. Accordingly, the case will be remanded to the Board for a determination on the merits.
After General Counsel served a complaint upon petitioner, Livingston Powdered Metal, Inc., the Board granted a request of the company's attorney for an extension to file an answer. When the answer was not received within the allotted time, General Counsel filed a motion for summary judgment. The Board granted the motion based on the averments in the complaint, which were taken as undenied, and held that the company had violated §§ 8(a)(1), (3) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3), (5) (1976). After a motion for reconsideration was denied, the company petitioned for review, and the Board cross-appealed for enforcement.
For some years, Livingston Powdered Metal operated a production plant in Livingston, Tennessee. Its parent company, Brockway Pressed Metals Company, is located in Brockway, Pennsylvania. The complaint alleged that on March 25, 1980, petitioner closed the Livingston plant and moved its operation to Brockway because the United Automobile, Aerospace & Agricultural Implement Workers Union had won a representation election at the Tennessee location during the previous month.
General Counsel alleged that Livingston had unlawfully discharged its employees and had refused to bargain with the union. An answer to the complaint was due on June 26, 1980. When it was not received, a field attorney for General Counsel telephoned the offices of petitioner's attorney, R. Edward Ferraro, at Punxsutawney and Brockway, Pennsylvania, on July 23 and July 24 respectively. Unable to reach him by telephone, the field attorney sent Ferraro a letter on July 24, stating that General Counsel "may file a Motion for Summary Judgment" if an answer was not forthcoming.
Ferraro wrote to the Board on July 31, asking it to extend the time for the answer to Monday, August 11, 1980. In a letter to the attorney's Brockway office dated August 6, 1980, the Board replied that summary judgment would not be sought "if your answer is filed not later than August 11, 1980."
In a letter dated Friday, August 8, 1980, but not mailed until Monday, August 11, Ferraro wrote from his Brockway office, "(p)er your letter of August 6, 1980, which we just received, we enclose herewith an Answer to the Complaint...." The letter and answer were not received at the Board's office until August 18, 1980. Ferraro had also mailed copies of his letter and answer on August 11, 1980 to the union in Nashville, Tennessee, where they were delivered on August 13, 1980.
On the same day the answer was received, the regional attorney sent a motion for summary judgment to the Board. On the next day, he acknowledged receipt of the answer and asked Ferraro to send four additional copies, which he did promptly.
The Board then issued a notice to show cause why the motion for summary judgment should not be granted. Ferraro responded that the company was not responsible for the delay in the mails, and noted that the letter to the union in Tennessee arrived on August 13, 1980-before General Counsel's office had begun preparation of the summary judgment motion. He also stated that financial losses-not union representation-compelled the closing of the plant, and furthermore that Livingston was "no longer an operating manufacturer at any location."
The answer to the complaint and the response to the show cause notice repeated substantially the defenses that Ferraro had included in a letter to the Board in April 1980. At that time the Board was investigating charges by the union similar to those presented here.*fn1
On December 5, 1980, the Board found that petitioner had failed to show good cause for its failure to file the answer by August 11, and, therefore, the allegations of the complaint were deemed to be true. The company was ordered, inter alia, to reopen the plant, reinstate the employees, and bargain with the union about the plant closure as well as wages and conditions of employment.
Livingston then employed new counsel who promptly filed a motion for reconsideration. As grounds for setting aside the default, the company asserted that Ferraro had a small, rural law office and had never handled an administrative appeal of this nature. The company also contended that, on the basis of a telephone discussion with the NLRB field attorney on August 6, Ferraro believed that ...