Hotel del Coronado

National Labor Relations Board - Board Decisions

Mar 7, 2005

344 N.L.R.B. 360 (N.L.R.B. 2005)

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.”