Unpublished Disposition, 878 F.2d 386 (9th Cir. 1988)

MEMORANDUM^* 

Petitioner, the International Union of Operating Engineers, Local 501 ("Local 501"), appeals the National Labor Relations Board's ("NLRB") order affirming an administrative law judge's ("ALJ") dismissal of its complaint of unfair labor practices. We affirm.

* Local 501's members work as "stationary operating engineers," performing maintenance and repair work in hotels, shopping malls, and other facilities throughout southern California and southern Nevada. On March 31, 1987, Local 501 filed a charge with the NLRB alleging that an employer, Holiday Gifts, Inc., had committed unfair labor practices by failing to bargain collectively with Local 501, in violation of 29 U.S.C. § 158(a) (1), (5) (1982). The NLRB issued a complaint on November 27, 1987, and the case was assigned for hearing before an ALJ. After three continuances, the hearing was held on February 23, 1988, in Las Vegas, Nevada. A representative of the General Counsel of the NLRB ("general counsel") was present to prosecute the complaint. Counsel for the charging party, Local 501, arrived after the hearing had commenced.

The general counsel introduced the formal documents into evidence. He then informed the ALJ that his case in chief would be based "to a substantial amount" upon the testimony of Michael Gritzer, general manager of Holiday Gifts' facility at issue, the Viscount Hotel. He admitted that there was "a problem with subpoenas in general"; in particular, a question as to whether Gritzer had been properly served with a subpoena. The general counsel stated: "Unless Holiday Gifts is willing to voluntarily produce Mr. Gritzer at this time, then general counsel in all candor must state that I'm unable to proceed at this time."

Holiday Gifts moved to dismiss the complaint. The general counsel requested a continuance "for the possible enforcement of subpoena." Local 501 argued that the continuance should be granted because several continuances had previously been granted to Holiday Gifts.

The ALJ responded that the general counsel had had several months to get his case together, but was unable even to inform the ALJ whether a subpoena had been served on Gritzer. He granted the motion to dismiss, subject to reopening if the general counsel showed proof of service before the hearing. No such proof was forthcoming. The subpoena in fact was served on Gritzer on February 26, 1988, the day after the hearing. The ALJ finalized the dismissal.

The general counsel appealed the case to the NLRB. The NLRB affirmed the ALJ's rulings, findings, and conclusions, and adopted his recommended order of dismissal. Local 501 petitions us for reversal of the NLRB's Decision and Order upholding the ALJ.

We have jurisdiction over this final order of the NLRB. 29 U.S.C. § 160(f) (1982). We review the NLRB's actions for abuse of discretion. J.M. Tanaka Constr., Inc. v. NLRB, 675 F.2d 1029, 1035 (9th Cir. 1982). As a party aggrieved by the NLRB's final action, Local 501 has standing to petition the court. 29 U.S.C. § 160(f); see International Union, United Automobile, Aerospace and Agricultural Implement Workers, Local 283 v. Scofield, 382 U.S. 205, 210 (1965). We granted Holiday Gifts' motion to intervene. See Scofield, 382 U.S. at 208.

II

The adjudicative scheme set up by the NLRB under authority of the relevant labor statutes gives the ALJ broad discretion in conducting a hearing, including the power to dismiss complaints. See, e.g., 29 C.F.R. Sec. 102.35(h) (1988). "Only when the [ALJ] makes a ruling which is demonstrated to clearly prejudice the appealing party, will a reviewing court find an abuse of discretion." Electromec Design and Development Co. v. NLRB, 409 F.2d 631, 635 (9th Cir. 1969). Local 501 contends that the dismissal clearly prejudiced it for two reasons: 1) it was denied a hearing on the merits of its complaint; and 2) because the applicable statute of limitations had expired, it was deprived of any remedy for Holiday Gifts' unlawful conduct because it could not refile its complaint. See 29 U.S.C. § 160(b).

Under Local 501's broad definition of clear prejudice, we would be required to reverse any dismissal of a complaint prior to a full hearing on the merits. Our case law does not define prejudice so broadly. We have uniformly upheld the discretionary decisions of ALJs to deny continuances. In so doing, we have considered whether the events leading to the denial were at all foreseeable or preventable. See, e.g., J.M. Tanaka, 675 F.2d at 1035-36; NLRB v. Donkin's Inn, Inc., 532 F.2d 138, 142 (9th Cir.), cert. denied, 429 U.S. 895 (1976); NLRB v. Glacier Packing Co., 507 F.2d 415, 416 (9th Cir. 1974) (per curiam).

Here, Local 501 makes no showing that it could not have kept abreast of the case, and made sure that the general counsel was ready to proceed on February 25, 1988. Neither Local 501 nor the general counsel offered any other evidence in support of their case at the hearing, although they had the opportunity to do so. Denial of a continuance was not unfairly prejudicial, even when dismissal resulted from the denial.

Local 501 argues, not unreasonably, that the statutory scheme places the prosecution of unfair labor practices entirely into the usually capable hands of the general counsel, and therefore that the charging party should not suffer because of the general counsel's errors, especially in light of the mission of the NLRB to correct improper labor practices. See 29 U.S.C. § 153(d) (1982); Baker v. International Alliance of Theatrical Stage Employees, 691 F.2d 1291, 1293-95 (9th Cir. 1982). Dismissal of the complaint was an unfortunate result of the general counsel's failure to prepare this case in a timely fashion. We note, however, that the general counsel could have refused to file the complaint at all, or withdrawn it at any time prior to the taking of evidence on the merits, and Local 501 would have found no remedy in this court. See, e.g., Baker, 691 F.2d at 1293; 29 C.F.R. Sec. 102.18 (1988).

The ALJ had no duty to grant further continuances to unprepared parties, and he had to be fair to Holiday Gifts, who was prepared to proceed. We cannot find in the NLRB's affirmance of the ALJ's order of dismissal the type of clear, unrelieved prejudice that would require us to find an abuse of discretion.

III

Holiday Gifts requests double costs and attorneys' fees on the grounds that Local 501's appeal is frivolous. Holiday Gifts relies upon Fed. R. App. P. 38 and 28 U.S.C. §§ 1912, 1927 (1982). We do not consider the appeal to be frivolous, and exercise our discretion not to award fees and costs. Holiday Gifts also requests sanctions under Fed. R. Civ. P. 11. This request is itself frivolous. Proceedings in this court are guided by the Rules of Appellate Procedure; the Rules of Civil Procedure do not apply. Scofield, 382 U.S. at 217 n. 10; Fed. R. App. P. 1; Fed. R. Civ. P. 1.

AFFIRMED.