NLRB v. Tri-County Electric ( 2023 )

Case: 21-60887 Document: 00516850641 Page: 1 Date Filed: 08/08/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
August 8, 2023
No. 21-60887 Lyle W. Cayce
____________ Clerk
National Labor Relations Board,
Petitioner/Cross-Respondent,
versus
Tri-County Electric Cooperative, Incorporated,
Respondent/Cross-Petitioner.
______________________________
Application for Summary Entry of a Judgment Enforcing
and Cross-Petition for Review of an Order of the
National Labor Relations Board
NLRB No. 16-CA-260485
______________________________
Before Duncan and Wilson, Circuit Judges, and Schroeder, District
Judge. *
Per Curiam: †
The National Labor Relations Board (“NLRB” or “Board”) seeks
summary entry of a judgment enforcing its order determining that Tri-
County Electric Cooperative, Inc. (“Tri-County”) unlawfully discharged an
_____________________
*
United States District Judge for the Eastern District of Texas, sitting by
designation.
†
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 21-60887
employee. Tri-County cross-petitions for review of that order, arguing that
its exceptions, filed thirty minutes late, should have been considered by the
NLRB. We conclude that the NLRB did not abuse its discretion in rejecting
Tri-County’s untimely exceptions. We therefore affirm the NLRB’s order,
grant summary entry of a judgment enforcing the order, and deny Tri-
County’s cross-petition for review.
I.
An administrative law judge (“ALJ”) determined that Tri-County
unlawfully discharged an employee. The day before the deadline to file
exceptions to the decision, Tri-County requested an extension due to other
work obligations. The NLRB denied this request because counsel had known
about these work obligations for almost two weeks, and NLRB regulations
required that extension requests filed within three days of a due date “be
grounded upon circumstances not reasonably foreseeable in advance.” 29
C.F.R. § 102.2(c).
Following the denial of the request, Tri-County submitted its
exceptions and brief thirty minutes late. The NLRB rejected the filing as
untimely. Tri-County responded by moving for a one-day extension to
accommodate the late filing. The motion was unopposed, and all parties
agreed that no undue prejudice would result from the extension. Tri-County
explained that the filing was late because counsel had not accounted for the
difference between Central and Eastern time zones. Under NLRB
regulations, filings are due based on “the time zone of the receiving office.”
29 C.F.R. § 102.2(b). Tri-County said it “completely missed” that
requirement.
The NLRB denied the motion for an extension. Its regulations state
that documents may be filed late “only upon good cause shown based on
excusable neglect and when no undue prejudice would result.” 29 C.F.R.
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§ 102.2(d)(1). And the NLRB explained that “[t]he reasons for the late filing
do not rise to the level of excusable neglect.” Accordingly, without any
exceptions to consider, the NLRB adopted the ALJ’s decision. Tri-County
moved for reconsideration, which the NLRB denied because Tri-County had
“not identified any material error or demonstrated extraordinary
circumstances warranting reconsideration under Section 102.48(c)(1) of the
Board’s Rules and Regulations.” The NLRB filed an application in this court
for summary entry of a judgment enforcing its order adopting the ALJ’s
decision, and Tri-County filed a cross-petition for review of that order.
II.
The NLRB argues that Tri-County’s excusable neglect arguments are
jurisdictionally barred by § 10(e) of the National Labor Relations Act. We
disagree.
Section 10(e) explains that, absent “extraordinary circumstances,”
“[n]o objection that has not been urged before the Board . . . shall be
considered by the court.” 29 U.S.C. § 160(e); see also IBEW Loc. Unions 605
& 985 v. NLRB, 973 F.3d 451, 461 (5th Cir. 2020) (“We have relied on
Section 10(e) to bar appellate review of an issue not briefed to the Board,
holding that the party’s failure to adequately present its theory relieves the
Board of an obligation to provide analysis on the issue.”). Tri-County argues
that it did present all these arguments to the NLRB at the agency level.
Below, the NLRB pointed Tri-County to the excusable neglect standard, but
Tri-County did not use the phrase “excusable neglect” in its filings. It did,
however, lay out all of the facts and reasons behind the delay, explain that no
undue prejudice would result (which is part of the standard), and explain that
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the motion was “not sought for the purposes of delay only, but so justice may
be done.”
Although parties must generally raise any issues to the NLRB before
appealing them, “this requirement can be measured in context. The purpose
of § 10(e) is to give the Board notice and an opportunity to confront
objections to its rulings before it defends them in court.” Indep. Elec.
Contractors of Houston, Inc. v. NLRB, 720 F.3d 543, 551 (5th Cir. 2013) (citing
Marshall Field & Co. v. NLRB, 318 U.S. 253, 256 (1943)). This means that
any objections “must be specific enough to place the agency on notice of the
party’s objections.” IBEW, 973 F.3d at 460. If the NLRB has “fully
considered the issue in dispute, . . . ‘the policies underlying the [§ 10(e)] rule
are not implicated.’” Id. at 461 (quoting Indep. Elec. Contractors, 720 F.3d at
551). We have also explained that “it would be difficult to hold [the § 10(e)]
requirement as ‘jurisdictional’ in this court because the statute itself creates
an exception.” Indep. Elec. Contractors, 720 F.3d at 550.
There is no doubt the NLRB was on notice that Tri-County was
making an excusable neglect argument. After all, when rejecting Tri-
County’s exceptions, the NLRB explicitly pointed Tri-County to the
excusable neglect standard for untimely filings. Further, in Supreme Court
cases where new arguments were considered forfeited, including one case the
NLRB relies on here, there was no motion for reconsideration filed. See id. at
551 (distinguishing two cases on that basis: Woelke & Romero Framing, Inc. v.
NLRB, 456 U.S. 645 (1982), and International Ladies’ Garment Workers’
Union v. Quality Manufacturing Co., 420 U.S. 276 (1975)). Here, a motion for
reconsideration was filed and included the grounds for the excusable neglect
challenge and at least part of the standard itself. This unquestionably put the
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NLRB on notice of the excusable neglect challenge, and so review of that
challenge is not barred by § 10(e).
III.
Accordingly, we consider the merits of the challenge. The NLRB’s
“action in finding lack of good cause based on excusable neglect is reviewed
for abuse of discretion.” NLRB v. U.S.A. Polymer Corp., 272 F.3d 289, 296
(5th Cir. 2001). We conclude that the NLRB did not abuse its discretion in
finding that a mistake about time-zone requirements and other work
obligations did not constitute good cause.
In making its determination that the time-zone confusion did not rise
to excusable neglect, the NLRB cited Unitec Elevator Services Co., 337 NLRB
426 (2002). There, following the Supreme Court’s then-recent guidance in
Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507
U.S. 380 (1993), the NLRB overruled one of its earlier decisions that a one-
day delay due to an arithmetic error would constitute excusable neglect.
Unitec, 337 NLRB at 427–28 (“expressly overruling” Postal Serv., 309 NLRB
305 (1992)). In Pioneer, the Supreme Court explained that “[i]nadvertence,
ignorance of the rules, or mistakes construing the rules do not usually
constitute ‘excusable’ neglect,” although the concept is “elastic.” 507 U.S.
at 392 (quotation omitted). The NLRB explained that, following Pioneer,
“[h]enceforth, a late document will not be excused when the reason for the
tardiness is solely a miscalculation of the filing date.” Unitec, 337 NLRB at
428.
Analogous precedent from this court regarding the Federal Rules
concludes that “in most cases, an attorney’s simple
misunderstanding . . . ‘weighs heavily against a finding of excusable
neglect.’” L.A. Pub. Ins. Adjusters, Inc. v. Nelson, 17 F.4th 521, 525 (5th Cir.
2021) (quoting Midwest Emps. Cas. Co. v. Williams, 161 F.3d 877, 880 (5th
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Cir. 1998)). “Our court has ‘left open the possibility that some
misinterpretations of the federal rules may qualify as excusable neglect,’ but
we have emphasized that ‘such is the rare case indeed.’” Ibid. (quoting
Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998)). We have
also explained that when the rule is unambiguous, a district court’s decision
that the neglect was inexcusable “is virtually unassailable,” because, “[w]ere
it otherwise, ‘almost every appellant’s lawyer would plead his own inability
to understand the law when he fails to comply with a deadline.’” Halicki, 151
F.3d at 470 (quoting Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 998
(11th Cir. 1997)). The same logic applies to the NLRB’s determination here.
Nor did the NLRB abuse its discretion in rejecting the significance of
counsel’s other work obligations. As the NLRB explained, counsel was aware
of these obligations for almost two weeks before the filing deadline. We have
previously held that the NLRB did not abuse its discretion in rejecting a late
filing when the party “was in the process of hiring a new lawyer[.]” See
U.S.A. Polymer, 272 F.3d at 297. Given that Tri-County’s counsel was well
acquainted with the case, we decline to grant more leeway here.
To summarize: Tri-County’s excusable neglect argument was
substantively raised in filings before the NLRB and the NLRB was
unquestionably on notice of it; so, we have considered it. The NLRB,
however, did not abuse its discretion when it (1) determined that Tri-
Country failed to show excusable neglect and (2) subsequently refused to
consider the untimely filed exceptions. As a result, Tri-Party did not properly
raise any exceptions to the NLRB’s order. Summary entry of a judgment
enforcing the NLRB’s order is therefore appropriate. See NLRB v. Sw.
Displays & Events, No. 22-60032, 2022 WL 636687, at *1 (5th Cir. Mar. 4,
2022) (unpublished) (per curiam) (“[W]e have emphasized that ‘fail[ing] to
comply with the [Board’s] regulations requiring the filing of written
exceptions’ entitles the Board to summary entry of judgment.” (quoting
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NLRB v. Mooney Aircraft, Inc., 310 F.2d 565, 566 (5th Cir. 1962) (per
curiam))).
* * *
Accordingly, we AFFIRM the NLRB’s order, GRANT summary
entry of a judgment enforcing the order, and DENY Tri-County’s cross-
petition for review.
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