Carriage Inn of Steubenville

National Labor Relations Board - Board Decisions

Oct 30, 1992

309 N.L.R.B. 383 (N.L.R.B. 1992)

383
309 NLRB No. 50
CARRIAGE INN OF STEUBENVILLE
1 The record also supports the Respondent’s contentions as to the
timing of the postponements. Thus, the record indicates that the first
postponement issued on May 20, 1992, 20 days before the June 9,
1992 hearing (see Sec. 102.111(a) of the Board’s Rules and Regula-
tions governing time computation), and that the second postpone-
ment issued on August 3, 1992, the day before the August 4, 1992
hearing.
2 Sec. 102.16(a) provides that a Regional Director’s authority to
extend the date of hearing is limited to the following circumstances:
(1) where all parties agree or no party objects to extension of the
date of hearing; (2) where a new charge or charges have been filed
which, if meritorious, might be appropriate for consolidation with
the pending complaint; (3) where negotiations which could lead to
settlement of all or a portion of the complaint are in progress; (4)
where issues related to the complaint are pending before the General
Counsel’s Division of Advice or Office of Appeals; or (5) where
more than 21 days remain before the scheduled date of hearing. Sec.
102.16(b) provides that in all circumstances other than those listed
in Sec. 102.16(a), motions to reschedule the hearing should be filed
with the Division of Judges in accordance with Sec. 102.24(a) of the
Board’s Rules, 54 Fed.Reg. 38516 (Sept. 19, 1989), 29 CFR
§ 102.24(a) (1991).
3 We note in this regard that the General Counsel’s opposition fails
to explain the basis for the Regional Director’s first postponement
20 days before the hearing. We further note that the General Counsel
acknowledges in his opposition that the only basis for the Regional
Director’s second postponement was that the Charging Party’s rep-
resentative had informed counsel for the General Counsel on the day
before the hearing that the Charging Party intended to file new addi-
tional charges the following morning prior to the start of the hearing.
Moreover, the General Counsel further acknowledges that these new
charges were not actually filed until over a week later.
As indicated above, Sec. 102.16(a)(2) only permits a Regional Di-
rector to postpone the hearing where a new charge or charges ‘‘have
been’’ filed; it does not specifically allow a Regional Director to
postpone the hearing where a charging party merely indicates that
he or she intends to file a new charge. Further, the primary basis
for the Board’s 1989 revisions to Sec. 102.16, which set forth the
foregoing limitations on the Regional Directors’ authority to resched-
ule hearings, was that there was a public perception that the prior
procedure by which the Regional Directors had virtually unlimited
authority was unfair. Thus, although we agree that an argument can
be made that the Regional Director’s action here was justified under
the circumstances, we believe that, in light of both the language and
the history of Sec. 102.16, the appropriate practice under the rule
would have been to request a postponement from the Chief Adminis-
trative Law Judge. In that event, the judge could have evaluated the
positions of all the parties and there could be no contention now that
the Regional Director had acted unilaterally or unfairly.
Carriage Inn of Steubenville, Inc. and United Steel-
workers of America, AFL–CIO–CLC. Case 8–
CA–24139
October 30, 1992
ORDER DENYING MOTION
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On May 12, 1992, the Acting Regional Director for
Region 8 of the National Labor Relations Board issued
an amended complaint and notice of hearing in the
above-captioned proceeding, alleging that the Respond-
ent had violated Section 8(a)(1) and (3) of the Act in
various respects.
Thereafter, on August 10, 1992, the Respondent
filed a motion to dismiss complaint with the Board.
The Respondent contends that the complaint should be
dismissed on the ground that the Regional Director
twice unilaterally postponed the hearing without either
filing a motion or attempting to ascertain the Respond-
ent’s position—the first time on May 20, 1992, within
20 days of the hearing, and the second time on August
3, 1992, the day before the scheduled hearing. The Re-
spondent contends that the Regional Director failed to
provide any reasoned grounds for the postponements,
that the Regional Director’s latter indefinite postpone-
ment on the eve of the hearing in particular was con-
trary to the Board’s Casehandling Manual, constituted
a blatant abuse of authority, and was instituted with
full knowledge of the extraordinary expenses incurred
by Respondent in bringing three independent witness
from South Carolina to the Ohio hearing, and that the
complaint should therefore be dismissed with preju-
dice.
On August 17, 1992, the General Counsel and the
Charging Party Union filed oppositions to the Re-
spondent’s motion. Although not disputing the Re-
spondent’s contention that the Regional Director issued
the two postponements,1 the General Counsel and the
Union submit that the Regional Director’s action was
appropriate and justified under the circumstances and
that the Respondent was not prejudiced. Accordingly,
the General Counsel and the Union contend that the
Respondent’s motion should be denied.
Having duly considered the matter, we deny the Re-
spondent’s motion. First, the Casehandling Manual
provision cited by the Respondent (Sec. 10294.2)
clearly applies only to requests for postponement filed
by the private parties. Under Section 102.16 of the
Board’s Rules and Regulations, as revised 54 Fed.Reg.
52506 (Dec. 21, 1989), 29 CFR § 102.16 (1991), a Re-
gional Director may extend the date of hearing on his
or her own motion. While the circumstances under
which a Regional Director may do so are limited under
Section 102.16,2 the Respondent does not specifically
contend that the Regional Director violated that sec-
tion.
In any event, even assuming for arguments sake that
the Regional Director did violate Section 102.16 of the
Board’s rules by issuing the two postponements with-
out ascertaining the Respondent’s position or filing a
motion for postponement with the Chief Administra-
tive Law Judge,3 this would not warrant dismissing the
complaint. Aside from the costs the Respondent may
have regrettably and unnecessarily incurred in bringing
its three out-of-state witnesses to Ohio, the Respondent
has not alleged or shown any prejudice resulting from
the postponements. Thus, even if the Regional Director
did disregard or misconstrue Section 102.16 of the
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 See generally Olin Industries v. NLRB, 192 F.2d 799 (5th Cir.
1952); and Union Starch & Refining Co. v. NLRB, 186 F.2d 1008,
1013 (7th Cir. 1951). See also NLRB v. J.H. Rutter-Rex Mfg. Co.,
396 U.S. 258, 265 (1969). Although we recognize that this result
may for all practical purposes leave the Regional Director’s alleg-
edly improper postponements unremedied, we note that Sec. 102.26
of the Board’s Rules and Regulations affords parties the opportunity
to request special permission to appeal such orders directly with the
Board. Where such an appeal is timely and properly filed under Sec.
102.114 of the Board’s Rules, whether by fascimile transmission or
otherwise, the Board will make every effort to expedite its consider-
ation. The Respondent filed no such appeal in this case.
Board’s Rules in issuing the two postponements, as no
substantive rights of the Respondent have been af-
fected thereby, there is no basis for dismissing the
complaint on this ground.4
Accordingly, the Respondent’s motion to dismiss
complaint is denied.