Before KALODNER, STALEY and SMITH, Circuit Judges.
KALODNER, C. J.: This is a petition by the National Labor Relations Board for summary entry of a decree enforcing its order against the respondent, engaged in business in the State of New Jersey.
The respondent in its answer asserts that it would be inconsistent with equitable principles to grant the petition on the facts of the case and urges that it be denied and the cause remanded to the Board on terms hereinafter detailed.
The relevant facts may be summarized as follows:
Pursuant to a hearing on a complaint a Board Trial Examiner on July 24, 1962 issued an Intermediate Report in which he found that the respondent had violated Section 8(a)(1) and (3) of the Labor Management Relations Act, as amended,*fn1 and recommended that an order be issued by the Board requiring the respondent to cease and desist from these unfair labor practices and to post the usual notices. On the same day an order was entered transferring the case to the Board and the respondent's counsel was served with both copies of the order and the Intermediate Report and was further notified that exceptions to the Report must be received by the Board on or before August 16, 1962, in consonance with the Rules and Regulations of the Board*fn2 which provide that a party seeking to file exceptions to an Intermediate Report must do so within twenty days from the date of service of the order transferring the case to the Board, and, that upon failure to file such exceptions with the Board within the specified period the Report would become the order of the Board.
On July 27, 1962 - three days later - respondent's counsel advised the Board by letter that it intended to file exceptions to the Report.
On August 15, 1962 - between 9:35 and 9:40 P.M. respondent's counsel deposited in a mailbox in his office building the exceptions and supporting brief. There was a scheduled mail pickup for 9:50 P.M. which would assure, in ordinary course, delivery of first class mail in Washington, D.C. the next day - August 16th. However, the exceptions and supporting brief were not received by the Board until August 17th and by letter dated August 23, 1962 - received by respondent's counsel on August 27, 1962 - the Board rejected and returned the exceptions as untimely filed.
By letter dated August 28, 1962 the respondent advised the Board that it was in the process of collecting evidence that the mailing was made at a time that would have permitted its receipt in Washington on August 16, 1962 - the due date. Thereafter, on September 24, 1962 the Board received respondent's application for an order extending the time for filing exceptions and brief nunc pro tunc together with affidavits in support thereof filed by respondent's counsel and an employee who deposited the mail. The Board then communicated with the Postmaster in New York who in reply advised that actual pickup of mail might not follow posted schedules; that an earlier pickup might possibly have been made on the night of August 15, 1962 before 9:50 P.M., the scheduled time for such pickup.
On November 9, 1962, the Board denied the respondent's request for an extension of time and reaffirmed its rejection of the exceptions and brief as being untimely filed on the premise that ". . . the Board necessarily predicates its determination of these matters upon the normal course of action and not upon an abnormal one." On the same date the Board issued an order in which it adopted the recommended order of the Trial Examiner, a copy of which was served by registered mail upon respondent's counsel.
On November 26, 1962, respondent filed a motion for reconsideration of the Board's order of November 9, 1962, for modification, and clarification thereof; for reopening of the proceedings to submit newly discovered additional evidence, and for oral argument before the entire Board. The General Counsel filed an opposition to said motion. Thereafter, on December 18, 1962, the Board issued an order denying respondent's motion and affirming its order of November 9, 1962.
Subsequently, the Board filed the instant petition for summary entry of decree enforcing its order. It is the Board's position that the only issue here is whether this Court should compel it to disregard its Rules based on Section 10(c) of the Act, and accept the belated exceptions, and on that score it contends that it "acted reasonably and well within its discretion in declining to receive a document filed out of time." It cites in support of its position the holding in Kiekhaefer Corporation v. National Labor Relations Board, 273 F.2d 314, 317 (7 Cir. 1960), cert. den. 362 U.S. 950, that the Board's rule is not "arbitrary or capricious" and that "Filing exceptions is tantamount to filing a notice of appeal and must be fully accomplished within the period allowed by statute or rule."
In Kiekhaefer, the respondent mailed the exceptions in Milwaukee, Wisconsin, on January 21, 1959 - the date scheduled for their filing with the Board in Washington - and they were not delivered to the Board until January 22nd. The Board wrote respondent the following day rejecting the exceptions as untimely; the respondent on February 2nd filed a motion that the Board entertain the exceptions; the motion was rejected on February 9th in an order which pointed out that no adequate reason had been given for the respondent's delay in mailing the exceptions until such time as would not in normal course accomplish their receipt by the Board on the due date. In granting summary judgment the Court said that the failure to assert to the Board the existence of "extraordinary circumstances" in explanation or justification of the late filing was conclusive as far as it was concerned. It may be noted that in Kiekhaefer the respondent contended, on the application for summary enforcement, that the exceptions were timely filed since they were mailed on the due date. The Court rejected that contention.
From what has been said it is clear that Kiekhaefer is inapposite since here the respondent had presented to the Board the "extraordinary circumstances" of ...