PETITION FOR REVIEW AND APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD April 16, 1981
Before Aldisert, Rosenn and Weis, Circuit Judges.
The Rules of the National Labor Relations Board, like those of the federal courts, grant an automatic three-day enlargement of time for filing responses to notices or other pleadings served by mail. Finding the language of the NLRB rules ambiguous, we construe them to require that the last day of the original period must be fixed before the three-day extension is added to determine the expiration date. Because the Board adopted a more restrictive interpretation and refused to accept exceptions that were timely filed, we grant this petition for review and remand.
After several years of litigation in a consolidated representation and unfair labor practices case, the Board ordered a reopening of the matter for further findings by a hearing officer. His report was filed on December 26, 1979, and the employer filed exceptions on January 10, 1980. The Board found the exceptions to be untimely, accepted the recommendations of the hearing officer, and ultimately issued a bargaining order.
The controversy arises from the efforts of the Jersey Nurses Economic Security Organization of the New Jersey State Nurses Association to represent the nurses employed by the Kessler Institute for Rehabilitation. A petition for election was filed on November 8, 1977, and balloting took place on January 27, 1978. The employer has insisted from the start that the Association is not a bona fide labor organization because the Board of Directors of its parent entity includes statutory supervisors. Board proceedings began before the election and have continued to the present time.
Because the dispositive issue in this case is procedural, it is not necessary to review any substantive matters. For present purposes, the scenario begins on August 21, 1979, when the Board referred the case to the hearing officer for a supplemental report. The order also provided that "within 10 days from the date of issuance of such report, either party may file with the Board in Washington, D.C., eight copies of exceptions thereto...." The hearing officer mailed his report on December 26, 1979, reiterating the Board's directive that exceptions should be filed "within 10 days from the date of issuance of this report." Kessler's counsel received it on December 28, 1979.
The tenth day fell on Saturday, January 5, 1980. On Tuesday, January 8, the employer mailed its exceptions to the Board in Washington, D.C. where they were received on Thursday, January 10, 1980. On the following day, the Board's Associate Executive Secretary wrote to the employer's counsel stating that the exceptions were late and would not be "entertained by the Board." On February 4, 1980, the Board rejected the employer's appeal to permit filing of the exceptions, and on September 15, 1980 issued a pro forma order adopting the recommendations of the hearing officer. In the order the Board noted that "no timely exceptions to the hearing officer's report were filed by either party...."
Some months later, the Board issued its final decision and order granting General Counsel's motion for summary judgment, and the case became ripe for appeal to this court. Kessler petitioned for review, contending that its exceptions had been timely filed. In the alternative, the employer urges that we address the substantive issues at this time because it is unlikely that the Board will rule favorably on remand. The Board cross-petitioned for enforcement and argues that if we rule against it on the procedural question, the case should be returned to it for a decision on the merits in light of the exceptions.
We first discuss the procedural issue. Although the Board's Associate Executive Secretary initially cited inapplicable rules as authority for his action, there is now agreement as to the appropriate provisions. The controversy has thus been reduced to a narrow one-the construction of the rule providing for the automatic three-day extension of time for mailing.
The applicable Board regulation is found at 29 C.F.R. § 102.114, and provides in pertinent part:
"(a) In computing any period of time prescribed or allowed by these rules, the day ... after which the designated period of time begins to run, is not to be included. The last day of the period so computed is to be included, unless it is a Sunday or a legal holiday, in which event the period runs until the end of the next day, which is neither a Sunday nor a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Sundays and holidays shall be excluded in the computation.... A Saturday ... shall be considered as a holiday.... Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after service of a notice ... and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period...."
The parties advance differing interpretations of this rule. Under the Board's reading, the extension date is determined by adding three days to the number constituting the initial period. According to the Board's formula, 13 days (10 plus 3), was the time within which the exceptions had to be filed, so that the final day was Tuesday, January 8.
The employer, however, adopts a different approach. Since the original time period ended on Saturday, January 5, the holiday provision in the rule must then be computed so that the "prescribed period" of 10 days did not expire until Monday, January 7. It is at that point, says the employer, that "3 days shall be added to the prescribed period," which ...