# National Labor Relations Board v. Southwest Security Equipment Corp. > Court of Appeals for the Ninth Circuit · July 3, 1984 · 736 F.2d 1332 URL: https://www.frixlaw.com/law-library/cases/8922649 ## Case - **Full name:** NATIONAL LABOR RELATIONS BOARD, and International Association of Bridge, Structural, Reinforcing, and Ornamental Iron Workers, AFL-CIO, Local 75, Intervenor v. SOUTHWEST SECURITY EQUIPMENT CORPORATION - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** July 3, 1984 - **Citations:** 736 F.2d 1332 - **Precedential status:** Published - **Opinion:** Dissent by Norris - **Judges:** Norris, Pregerson - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8922649 ## Opinion text NORRIS, Circuit Judge, dissenting: I cannot agree with the majority’s analysis of the issue presented by Southwest Security’s failure to comply with Board regulations governing the degree of specificity with which parties must make exceptions to an AU’s findings. As the majority recognizes, we should overturn the Board’s decision that these regulations bar Southwest Securities from attacking the merits of the ALJ’s decision only if the *1339 Board acted arbitrarily. See supra slip op. at p. 2872, at 1336. Because the Board applied the plain language of the regulations to the facts of this case, I cannot conclude that the Board’s decision was arbitrary. The exceptions that Southwest Security filed on August 20th — the only exceptions filed before the deadline passed— plainly did not meet the requirements of regulation 102.46(b)(4). Although Southwest Security’s exceptions refer obliquely to the hiring hall issue, they do not “include citation of authorities” or set forth “the grounds for the exceptions,” as required by the regulation. See id. I am not persuaded by the reasons offered by the majority to support its conclusion that the Board’s conduct was arbitrary. The majority takes the position that any defects in the exceptions of August 20th were cured by a brief filed on September 4th. But the brief filed on September 4th was late; it was filed after the twenty-day deadline prescribed by regulation 120.-46(a). If I were a member of the Board, I might well allow a late brief to be included in the record so long as no party was prejudiced by the addition. As a judge reviewing the Board’s decision, however, I cannot say that the Board was being arbitrary when it refused to consider a brief filed after a deadline explicitly set forth in the governing regulations. Accordingly, we should consider the August 20th filing only. Southwest Security’s exceptions in that filing are no less sketchy than those in other cases where the Board’s decision to disregard exceptions was upheld on appeal. See e.g., NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 350 , 73 S.Ct. 287, 290 , 97 L.Ed. 377 (1953) (exception alleging only that decision was contrary to law); NLRB v. International Association of Bridge Workers, 473 F.2d 816, 817 (9th Cir.1973) (per curiam) (exception of insufficient particularity). The majority further maintains that Southwest Security’s exceptions meet our Circuit’s test for determining sufficiency of notice. But the majority inaccurately formulates that test by citing a case, Giustina Brothers v. NLRB, 253 F.2d 371 (9th Cir.1958), which is inapposite. Giustina Brothers held that the Board did not act arbitrarily in disregarding exceptions that were “so ambiguous as to be totally ineffective.” Id. at 374 . The case thus cannot be used as authority for the majority’s decision that the Board did act arbitrarily in disregarding these exceptions. The holding in Giustina Brothers is, rather, the converse of the holding the majority is fashioning in this case. Moreover, even though Southwest Security exceptions may not be “totally ineffective,” as were the exceptions in Giustina Brothers , the exceptions here are admittedly deficient nonetheless. And nothing in Giustina Brothers stands for the contrary. Finally, the majority reasons that the Board’s enforcement of regulation 102.46 violates regulation 102.121, which states that all regulations should be “liberally construed to effectuate the purposes and provisions of the Act.” I fail to see how this general provision supports a decision that the Board’s application of regulation 102.46 to the specific facts of this case was arbitrary. After all, Rule 1 of the Federal Rules of Civil Procedure states that courts shall construe those rules “to secure the just, speedy and inexpensive determination of every action.” If a district court refused to consider an item filed after a deadline set forth in the local rules of court, however, I doubt we would employ Rule 1 to find that the district court abused its discretion — absent unusual circumstances not present in this case — if the party who filed the item, like Southwest Security, failed to show good cause for missing the deadline. The majority’s reliance on the general language of regulation 102.121 is thus simply makeweight. In sum, I see no basis for reaching the merits of the hiring hall issue without intruding upon the Board’s discretion to regulate its internal process of administrative appeals. In this case, the Board did neither more nor less than enforce the text of regulation 102.46. Nevertheless,'the majority concludes that the Board acted arbi *1340 trarily in treating the regulation as if it meant what it said. The majority is thus fashioning a precedent that will frustrate the Board in its legitimate efforts to induce parties to fairly state at least the substance of their legal arguments in a timely manner. I believe the Board has a tough enough job in managing its considerable caseload without being faced with the new obstacle created by today’s decision. Accordingly, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8922649. Public record. Not legal advice.