Hotel del Coronado

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 344 NLRB No. 35 360 KSL DC Management, LLC d/b/a Hotel del Coro- nado and Hotel Employees and Restaurant Em- ployees International Union, Local 30, AFL– CIO, CLC. Cases 21–CA–36119 and 21–CA– 36195 March 7, 2005 ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER Counsel for the General Counsel’s motion to strike Respondent’s exceptions document and request for ex- tension of time to file answering brief is granted. The National Labor Relations Board’s requirements for the filing of exceptions are described in Section 102.46(b)(1) of its Rules and Regulations. As noted therein, each exception must contain certain information, including a concise statement of the grounds for the ex- ception. That section of the Rules also notes that when a separate brief is filed, as the Respondent has done here, the exceptions “shall not contain any argument . . . in support of the exceptions.” Rather, such argument is to be confined to the brief, which pursuant to Section 102.46(j) of the Rules shall not exceed 50 pages or other limit set by the Board. In applying these Rules, the Board usually accepts exceptions that contain argument if the number of pages of argument in the exceptions, when added to the pages in the brief, do not cause the brief to total more than 50 pages, or other page limit set by the Board. The Respondent here filed 439 exceptions in a 131- page document and a separate brief of 49-1/2 pages in length. The vast majority of the Respondent’s excep- tions contain arguments, i.e., the reasoning or facts that assertedly establish the exception. These arguments, when combined with the 49-1/2 pages of brief, far ex- ceed the 50-page limit. Section 102.46(b)(1) of the Board’s Rules and Regula- tions specifies that each exception shall identify the part of the administrative law judge’s decision excepted to, shall set forth specifically questions of procedure, fact, law or policy to which exception is taken, shall precisely designate the portions of the record relied on, and shall “concisely state the grounds for the exceptions.” If a supporting brief is filed, however, the exceptions “shall not contain any argument.” When a party proceeds to quote or paraphrase specific testimony and exhibits that support or prove the excep- tion, it has exceeded the requirement for the concise framework or outline and has engaged in argument pro- hibited by the Rule; argument that should be confined to the brief. This is what the Respondent has done in its exceptions. Often in the “Grounds for Exceptions” por- tion of its exceptions, the Respondent engaged in lengthy specific argument that manifested an attempt to provide conclusive proof rather than a conclusory framework.1 In other exceptions, the “Grounds” are more concise but specific argument is present and often contain the Re- spondent’s assessment of the testimony cited, including statements that some testimony is “more credible,” there is “no contrary evidence,” or the judge held the Respon- dent to a “higher standard,” engaged in “pure specula- tion” or attempted to “mislead the Board.”2 Notwithstanding the foregoing deficiencies, the Board’s general policy is to provide the filing party an opportunity to resubmit the noncompliant documents in a form that comports with the Board’s Rules.3 Accord- ingly, should the Respondent desire to resubmit its ex- ceptions and a brief in support that comply with the Board’s Rules, such resubmission is due in Washington, D.C. by the close of business on March 17, 2005. No extensions will be granted for this resubmission. As the Respondent may choose to delete some of its exceptions and change its brief, any answering brief to the resubmit- ted brief will be due March 31, 2005. 1 Some of the most flagrant examples are found in Respondent’s Ex- ceptions 133, 217, 242 and 393, but other examples are Exceptions 7, 75, 107, 133, 188, 219, 228, 242, 275, 342 and 352. Exception 217 is typical of these. In that Exception, the Respondent objects to the judge’s failure to find that an employee attempted to surreptitiously leave work without being seen by three managers. The Respondent paraphrases the testimony of the managers who, as specifically noted in the Exception, saw the employee leave work with another employee, parted ways with him and took a detour or circuitous route to his car. The Respondent further states in the exception that the managers documented their observations in independent statements which they gave to another manager. The Respondent explains in the exception that the judge “erroneously” relied on the statements, which were not admitted into evidence for the truth of the matter asserted, but allowed solely to show that Respondent conducted an investigation. Further, the Respondent recounts that the judge barred further testimony from two of the three managers concerning the employee’s departure in connection with photographic evidence and thereby “eliminated the possibility” that the three testified truthfully about the employee’s actions. Finally, it is noted that the Respondent incorporated this “ar- gument” and specifically referred to the testimony of these managers, in whole or in part, as its “concise grounds” in 12 other exceptions (Exceptions 218 through 226, 245, 253 and 256.) 2 In this regard we refer the Respondent to Exceptions, 73, 76, 91, 95, 96, 98, 100, 112, 124, 131, 132, 134, 136, 153, 167, 184, 187, 197, 212, 233, 320 and 331. 3 See Geske & Sons, Inc., 317 NLRB 28 at 29 (1995), in which the Board stressed the importance of “close attention to the requirements of Section 102.46(b)(1) and Section 102.46(j)” and emphasized that “a person should not expect in the future, or consider as now the norm, that the party filing exceptions will be afforded several opportunities to put its exceptions in proper form in conformity with the filing require- ments of the Board’s Rules.”