Carpenters Local 1506 (Marriott Warner Center)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 345 NLRB No. 112 1334 Carpenters Local Union No. 1506, United Brother- hood of Carpenters and Joiners of America and Sunstone Hotel Investors, LLC, d/b/a Marriott Warner Center Woodland Hills Carpenters Local Union No. 209, United Brotherhood of Carpenters and Joiners of America and Carignan Construction Company Carpenters Local Union No. 209, United Brotherhood of Carpenters and Joiners of America and Gregory D. Bynum & Associates, Inc. Carpenters Local Union No. 209, United Brotherhood of Carpenters and Joiners of America and Odys- sey Development Services Carpenters Local No. 743, United Brotherhood of Carpenters and Joiners of America and The Ba- kersfield Californian. Cases 31–CC–2121, 31– CC–2122, 31–CC–2123, 31–CC–2124, and 31– CC–2130 December 7, 2005 ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER Charging Party Marriott Warner Center Woodland Hills’ request that the Board accept its late-filed reply brief based on excusable neglect is denied. The asserted reasons for the lateness, as described in counsel’s affida- vit, do not rise to the level of excusable neglect. See Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), and Elevator Constructors Local 2 (Unitec Elevator Services Co.), 337 NLRB 426 (2002).1 1 While Member Schaumber agrees with those circuit courts that have taken issue with the Board’s unduly harsh application of its pro- cedural rules, see Patrician Assisted Living, 339 NLRB 1153 (2003), he agrees that the Board’s decision in Unitec, supra, controls the issue presented by the Charging Party’s request. The new procedure sug- gested by our dissenting colleague was not contemplated by Unitec and thus must await agreement of three Board members to adopt. CHAIRMAN BATTISTA, dissenting. The issue in this case is whether to accept a party’s brief that is 1 day late. The party asserts that, through “inadvertent oversight,” it “mis-calendared” the due date. As set forth below, I would accept a tardy brief where: (1) all parties have been contacted by the tardy party, and all of them affirmatively consent to the receipt of the tardy document; and (2) the Board has no valid reason of its own for rejecting the tardy document. In my view, the Act encourages parties to cooperate and reach accords. Thus, for example, parties can agree to settle a case, even if the remedy is not what the Board would give, provided that the settlement does not offend basic statutory policies.1 Similarly, parties can agree on a bargaining unit, even if it is not what the Board would impose, provided that the unit does not offend basic statutory policies.2 Accordingly, I see no reason why the Board should reject an all-party agreement to accept a tardy brief, provided that fundamental Board interests are not undermined. Unitec is not to the contrary. In that case, there was simply no response to the motion to receive the tardy brief. However, a nonresponse is not the same as an all- party affirmative agreement to accept a tardy brief. In sum, I wish to encourage all-party agreements which do not undermine fundamental Board interests. Accordingly, I would permit the Charging Party here to proceed promptly under step one above. Absent an all- party accord, I would reject the brief. With all-party ac- cord, I would accept the brief. In this latter regard, I do not believe that receipt of a brief that is 1 day late would undermine fundamental Board interests. 1 Independent Stave, 287 NLRB 740 (1987). 2 SCM Corp., 270 NLRB 885, 886 (1984).