NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Special Touch Home Care Services, Inc. and 1199 Service Employees International
April 18, 2007
SUPPLEMENTAL ORDER
By Chairman Battista and Members
Liebman
and Kirsanow
On
November 23, 2005, the Respondent filed timely exceptions to Administrative Law
Judge Raymond P. Green’s September 15, 2005 decision, and a supporting
brief. A procedural issue has arisen
with respect to the filings.
The
Respondent’s exceptions document was 92 pages long and the brief was 50 pages
long.[2] On December 22, 2005, the General Counsel
filed a motion to strike the exceptions and brief, asserting that the
exceptions document contained argument that should have been included in the
accompanying brief, in contravention of Rule 102.46(b), and that the
exceptions, together with the brief, far exceeded the 75-page limit set by the
Board. The Associate Executive Secretary
granted the motion on July 6, 2006,[3]
but gave the Respondent leave to file documents that conformed to the Board’s
Rules. The order explained the
nonconformity with the rules in some detail and cited instructive cases.[4] Thereafter, on July 17, the Respondent filed
a revised 38-page exceptions document and a revised 73-page supporting
brief. On August 1, the General Counsel
filed the Motion to Strike Respondent’s Exceptions, with attachments, on which
we now rule.
The
Board has delegated its authority in this proceeding to a three-member
panel. For the reasons set forth below,
the Board has decided to accept the Respondent’s exceptions and to reject its
brief. Accordingly, the General
Counsel’s motion to strike the exceptions is denied.
Discussion
Section
102.46(b)(1) of the Board’s Rules and Regulations states:
Each exception (1) shall set forth specifically the
questions of procedure, fact, law, or policy to which exception is taken; (ii)
shall identify that part of the administrative law judge’s decision to which
objection is made; (iii) shall designate by precise citation of page the
portions of the record relied on; and (iv) shall concisely state the grounds
for the exception. If a supporting brief is filed the exceptions document shall not
contain any argument or citation of authority in support of the exceptions, but
such matter shall be set forth only in the brief. If no supporting brief is filed the
exceptions document shall also include the citation of authorities and argument
in support of the exceptions, in which event the exceptions document shall be
subject to the 50-page limit as for briefs set forth in section 102.46(j). [Emphasis added.]
Section 102.46(j) states in pertinent part:
Any brief
filed pursuant to this section shall not be combined with any other brief, and except
for reply briefs whose length is governed by paragraph (h) of this section,
shall not exceed 50 pages in length, exclusive of subject index and table of
cases and other authorities cited, unless permission to exceed that limit is
obtained from the Board by motion. . . . [Emphasis added.]
Elucidating
these rules, the Board held in Hotel del
Coronado, supra, slip op. at 1, that when a party opts to file exceptions
and a brief, all argument should be confined to the brief. The Board defined argument as “the reasoning
or facts that assertedly establish the exception.”
Further,
in Geske & Sons, Inc., supra, at
29, the Board stressed 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 requirements of the Board’s Rules.”
As noted above, Hotel del Coronado
and Geske & Sons were cited in
the July 6 order.
Notwithstanding
the order, the Respondent filed revised exceptions that include argument and
separately filed a supporting brief. For
example, exceptions 2(a)-(e), 3(a)-(c), and 5(a)-(f) contain substantial
factual argument concerning the nature of the Respondent’s operations, the
characteristics of the patients it serves, and the training and qualifications
of the employees in issue. Exceptions
21, 22, 26, and 31 and their subsections similarly are infused with factual
arguments about particular employees’ acts and omissions, patients’ conditions,
and the Respondent’s conduct. Further,
exception 87 and its subsections contain factual and legal argument as well as
cases not cited by the judge.
Accordingly, the exceptions document continues to contain numerous pages
of argument which, when added to the 73 pages of text of the brief, clearly
exceed the extended page limit for the brief established by the Associate Executive
Secretary. Thus, the Respondent’s
revised submission is noncompliant both with the requirements of the applicable
rules in form (submit either one combined document or two separate documents),
and with the page limitation.
We
find that the Respondent’s overall submission is nonconforming and might
justify granting the General Counsel’s motion.[5] The July 6 order advised the Respondent’s
counsel that the original exceptions and brief submitted by him were
noncompliant, informed him generally what the defect was, and provided him with
rule and case citations for guidance. Despite
this, counsel submitted another noncompliant document. Striking the defective exceptions, however,
may impair the Respondent’s right under Section 10(e) of the Act to appeal.[6] Under the present circumstances, we believe
it strikes a fairer balance to deny the motion to strike the exceptions and instead
strike the brief. Thus, our ruling on the motion serves to uphold the Board’s
rules without unduly penalizing the Respondent.
Moreover, we do not think that the Respondent will be unfairly
prejudiced by our rejection of the brief that was filed on its behalf, given
the substantial amount of factual and legal argument contained in the
exceptions, which will be considered in our review.
Our
colleague observes that under Rule 102.46(b)(1), the Respondent’s exceptions
must “concisely state the grounds” for each exception but also omit
“argument.” We agree. He says these requirements, taken together,
place excepting parties in a “dilemma,” which the Respondent has made “a good
faith and successful effort to resolve.”
We disagree. If, as is repeatedly
the case here, a respondent wishes to except to a judge’s omission of factual
findings concerning a given individual, a concise statement of the grounds for
that exception might be that the judge’s decision “ignores record evidence and
omits relevant facts concerning [name].”
Argument in support of that exception, in the respondent’s brief, would
then particularize the omitted facts. Hotel del Coronado, supra (defining
“argument” as “the reasoning or facts
that assertedly establish the exception”) (emphasis added). The difference between “grounds” and
“argument” is plain; the Respondent repeatedly disregards it. Our colleague maintains that even if our
suggested format for a concise statement of grounds is adequate, that does not
mean that the Respondent’s chosen format is improper. But we do not think that position squares
with Hotel del Coronado’s definition
of “argument,” under which, as explained above, the Respondent’s exceptions
fail to conform to Section 102.46(b)(1).
As
to the deficiency of particular exceptions, our colleague does not so much take
issue with the fact of those
deficiencies as he does with their scope and extent.[7] The exceptions we cite as problematic are
merely representative examples of the Respondent’s extensive noncompliance with
the Board’s rules governing the filing of exceptions and briefs. We concede that there is room for honest
disagreement about the degree of noncompliance from exception to exception and
page to page of the Respondent’s submissions.
Nonetheless, the Respondent’s noncompliance with the rules and allowable
page limitations governing the filing of exceptions and briefs remains a fact,
even though the Board accorded the Respondent a second opportunity to submit
documents that comply with the rules and provided instruction as to how it
could comply. Some sanction is, therefore,
warranted.
In
view of the foregoing, the General Counsel and the Charging Party may file
answering briefs and cross-exceptions no later than 14 days from the date of
this Supplemental Order.
Dated,
Wilma
B. Liebman, Member
Peter
N. Kirsanow, Member
National Labor
Relations Board
Chairman Battista,
dissenting in part.
I
do not agree with my colleagues that the Respondent’s exceptions are improper.
The
Board’s rules prohibit the inclusion of argument in exceptions where the
excepting party files a brief in support of exceptions. Board’s Rules and
Regulations, Section 104.46(b)(1). However, Section 102.46(b)(1) also requires
that the excepting party “set forth specifically” each exception, “identify”
each challenged part of the judge’s decision, and “concisely state the grounds”
for each exception.
Applying
these considerations here, I initially note that the General Counsel’s motion
to strike the Respondent’s exceptions does not specifically identify any of the
language that the General Counsel contends is argument. In addition, a review of the exceptions discloses
little, if any, language that is clearly argument. On the contrary, the exceptions contain only
isolated phrases or passages, totaling at most three pages, that might
reasonably be viewed as argument.
Further, although the exceptions describe evidence or testimony as
“undisputed”, the exceptions do not quote from or assess testimony. Although the exceptions do contain some
citations to decisional precedent, these citations are limited in number and
the exceptions do not analyze that precedent.
The
majority claims that eight exceptions—2, 3, 5, 21, 22, 26, 31, and 87—contain argument. I disagree.
All but exception 87 challenge the judge’s failure to find and give
weight to specific alleged facts. These
facts, if found, would be relevant to the argument set forth in the brief. In my view, these exceptions constitute a
good-faith effort by the Respondent to comply with the Board’s rules requiring
the party to “set forth specifically” the exception and “concisely state the
grounds” for each exception.
The
majority next suggests that the Respondent should have used a more truncated
format when stating its exceptions. More
particularly, the majority suggests that, rather than using a format that
stated the facts which the judge failed to find regarding a particular employee,
the Respondent should have used a format that merely stated that “the judge’s
decision ‘ignores record evidence and omits relevant facts concerning
[name].’” However, because the format suggested
by the majority provides little information regarding the exceptions, such exceptions
would arguably lack the specificity required by the Board’s rules. Further, even assuming arguendo that my
colleagues‘ format is adequate and perhaps better than the one chosen by the
Respondent, that does not mean that the Respondent’s choice violated the
Board’s requirement by using a format that provided greater specificity.1
Exception
87, likewise, does not violate the Board’s rules. Subpart (a) merely challenges
one of the judge’s specific affirmative findings. The challenge is specific and
is concisely stated. With regard to the
remaining three subparts, they total less than 14 lines of text and it is not
clear that they are argument. Subparts
(b) and (d) challenge the judge’s failure to make concluding factual findings.
They simply reference other exceptions listing the specific alleged facts
supporting the Respondent’s position.
Subparts (b) and (d) are thus somewhat repetitive of other exceptions,
but that does not render them argument. Subpart (c) excepts to the judge’s
failure to distinguish three Board decisions, one of which was cited by the
judge as an example. Exception 87(c)
does not analyze the decisions at length but concisely states the allegedly
distinguishing facts in one sentence.
Under
these facts, and viewing the exceptions as a whole, I find that the General
Counsel has failed to prove that the Respondent’s exceptions were deficient
under the Board’s rules.2 Accordingly, I would accept the Respondent’s
exceptions. Further, inasmuch as there
was no violation of the Board Rule, I would not impose any sanctions.3
Dated,
____________________________________
Robert J. Battista, Chairman
(seal) National Labor Relations Board