Unpublished Disposition, 902 F.2d 41 (9th Cir. 1989)

MEMORANDUM^* 

Superior Industries International asks us to overturn the National Labor Relations Board's entry of summary judgment against it after Superior filed an untimely answer to an unfair labor practice complaint. United Automobile, Aerospace and Agricultural Implement Workers of America, Amalgamated Local No. 645 ("UAW") petitions for review of the remedial portion of the Board's order.

The UAW won a representation election at Superior's Van Nuys, California facility on August 30, 1984. On May 21, 1987, the Board dismissed Superior's objections to the election and certified the UAW as the exclusive bargaining representative of Superior's employees. Superior refused to recognize or bargain with the UAW. On July 16, 1987, the UAW filed an unfair labor practice charge against Superior, alleging a violation of sections 8(a) (5) and (1) of the National Labor Relations Act. 29 U.S.C. §§ 158(a) (5) and (1).

The complaint was served by certified mail upon both Superior and its attorney, Michael Schmier. Superior failed to file an answer within the required fourteen-day period. It filed an informal and untimely answer on its own behalf, stating its counsel was unavailable until after Labor Day. Its counsel did not file any response to the complaint and the General Counsel filed a motion for summary judgment with the Board in late September.

The Board granted the General Counsel's motion. It found that good cause did not exist for excusing Superior's late filing of its answer. The Board found that contrary to Superior's allegation, its attorney had received a copy of the complaint as indicated by signed postal receipts. Accordingly, the Board deemed the allegations of the complaint admitted and ordered Superior to cease and desist from refusing to bargain with the UAW and to provide the UAW with requested information. The Board also denied the UAW's request for litigation expenses as well as refused to enter a make whole remedy.

SUPERIOR'S CONTENTIONS

Turning first to Superior's contentions on appeal, we find that the Board did not err in entering summary judgment against Superior. First, we agree with the Board that Superior failed to establish good cause under 29 C.F.R. Sec. 102.20 for excusing the untimely filing of its answer. Superior argues that its attorney did not receive a copy of the unfair labor practice complaint. The record, however, supports the Board's finding to the contrary. See N.L.R.B. v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir. 1989). The complaint was served upon the attorney by certified mail and the region received a signed postal receipt from the attorney's office. In response to this rather conclusive evidence of receipt, Superior lamely asserts that its attorney was at another location due to office renovation. We need not even entertain this belated assertion. See N.L.R.B. v. Marin Operating, Inc., 822 F.2d 890, 895 (9th Cir. 1987). The record in this case shows a pattern of delay on the part of Superior.

Superior next contends that the Board erred in entering summary judgment against it because the General Counsel neglected to warn Superior when the time for filing a timely answer had elapsed. It relies on section 10280.3 of the Board's Casehandling Manual ("Manual"). We agree with the Board that any failure by the General Counsel to abide by the Guidelines did not estop pursuit of summary judgment. The Manual merely serves as a handbook for internal use. It provides guidance, not rules and therefore, does not bind the General Counsel. Cf. Schweiker v. Hansen, 450 U.S. 785, 786 (Social Security Administration not bound by its Claims Manual), rehg. denied 451 U.S. 1032 (1981); United States v. Caceres, 440 U.S. 741 (1979) (failure of an IRS agent to follow internal IRS electronic surveillance regulations did not require the suppression of tape recordings procured in violation of such regulations); Jacobo v. United States, 853 F.2d 640, 641 (9th Cir. 1988) (Naval Ship's Technical Manual does not have the force of law). The Manual expressly states that its provisions merely provide "procedural and operational guidance for the Agency's staff ... and ... are not a form of authority binding upon the General Counsel or upon the Board." In United States v. Busher, 817 F.2d 1409, 1411 (9th Cir. 1987), we held that a defendant could not rely on guidelines set forth in the U.S. Attorney's Manual, where the Attorney's Manual specifically stated that it did not create any rights enforceable at law nor limit the litigative prerogatives of the Department of Justice. The Board's Casehandling Manual contains virtually identical language, and similarly the Manual cannot be reasonably relied upon by respondents in unfair labor practice cases.

Finally, Superior argues that the Board's failure to act as a whole on Superior's motion to disqualify Board Member Johansen renders its bargaining order unenforceable. We lack jurisdiction to adjudicate this issue. Superior sought Member Johansen's disqualification during the representation/certification proceeding. Because election certifications are not final orders subject to appellate review, Superior had to raise its objections to certification, including that of Member Johansen's bias, during the unfair labor practice proceeding. Wisconsin Department of Industry v. Gould, Inc., 475 U.S. 282, 288 n. 5 (1986); N.L.R.B. v. Children's Baptist Home of Southern California, 576 F.2d 256, 261 (9th Cir. 1978); see, e.g., N.L.R.B. v. Best Products Co., Inc., 765 F.2d 903, 909 (9th Cir. 1985). When Superior failed to file a timely answer in the unfair labor practice case, the Board properly treated the proceeding as one in the nature of a default. Any defenses, including the challenge to Member Johansen's participation in the case, were never before the Board and are not before us.

THE UAW'S CONTENTIONS

We now turn to the UAW's request for modification of the remedial portion of the Board's order. We find that the Board did not err in denying the UAW's request for litigation expenses. We have upheld the Board's policy "of awarding litigation expenses only where the defenses asserted by the employer in refusing to bargain are totally without merit or frivolous." East Bay Chevrolet v. N.L.R.B., 659 F.2d 1006, 1011 (9th Cir. 1981). The record supports the Board's determination that Superior's conduct, while aggravated, was not frivolous.

The UAW also appeals the Board's denial of its request for a make whole remedy. The Board has broad discretion to fashion remedies in light of the circumstances of each case. N.L.R.B. v. Joseph Magnin Co., 704 F.2d 1457, 1461 (9th Cir. 1983), cert. denied, 465 U.S. 1012 (1984); East Bay Chevrolet, 659 F.2d at 1011. Assuming arguendo such a remedy would be available in an egregious case, see Culinary Alliance and Bartenders Union, Local 703 v. N.L.R.B., 488 F.2d 664, 666 (9th Cir. 1973), cert. denied, 417 U.S. 946 (1974), the record in this summary judgment proceeding tantamount to a default would not support imposition of such a remedy.

SANCTIONS

Both the Board and the UAW moved for sanctions against Superior Industries and its attorney for failure to comply with this court's orders and rules. Superior submitted a brief which violated FRAP 32(a) as well as the 25-page limit set forth in our March 7, 1989 order. In addition, Superior's excerpts of record violated Circuit Rule 17-2. The excerpts failed to include the order to be reviewed and contained unnecessary items.

Superior's counsel thrice moved for a modification of our March 7, 1989 order limiting the opening brief to 25 pages. We denied all three motions and on June 21, 1989, we warned Schmier that we would not "entertain any further motions for reconsideration of ... the March 7, 1989 scheduling order."

In blatant disregard of our orders and our rules, attorney Schmier filed a brief using one and one-half line spacing as opposed to double spacing as required by FRAP Rule 32(a) and filed excerpts of record which violated Circuit Rule 17-2. Consequently, Superior's brief and its excerpts had to be stricken, resulting in a delay of three weeks. The judge who entered that order referred the issue of sanctions to this panel.

18 U.S.C. § 1927 provides:

Any attorney ... admitted to conduct cases in any court of the United States ... who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorney's fees reasonably incurred because of such conduct.

We have imposed sanctions under 18 U.S.C. § 1927 for an attorney's failure to comply with our rules governing the form of briefs. See Hamblen v. County of Los Angeles, 803 F.2d 462, 464-65 (9th Cir. 1986); cf. Mitchel v. General Electric Co., 689 F.2d 877 (9th Cir. 1982) (appeal dismissed for failure to comply with Federal Rules of Appellate Procedure's requirements regarding the contents of briefs). We have also upheld a district court award of monetary sanctions against a party's counsel for failure to comply with local rules governing the filing of briefs. See Toombs v. Leone, 777 F.2d 465, 471 (9th Cir. 1985). In addition, Circuit Rule 17-3 calls for sanctions against "any attorney who vexatiously and unreasonably increases the cost of litigation by inclusion of unnecessary material in the Excerpts of Record."

We have reviewed attorney Michael Schmier's opposition to the motions to impose sanctions and find no credible explanation for Schmier's flagrant disregard of our rules and orders. We therefore grant the Board's and UAW's request for sanctions against Schmier. We order Schmier to pay the Board and the UAW each $500, a sum representing a reasonable estimate of the excess costs incurred by the parties in filing motions to strike Superior's noncomplying brief and excerpts as well as serving as a sanction under Circuit Rule 17-3. Counsel is ordered not to look to his client for reimbursement for payment of these sanctions. See Kalombo v. Hughes Market, Inc., 886 F.2d 258, 260 (9th Cir. 1989) (imposing sanctions against counsel for failure to comply with circuit rules regarding contents of briefs and excerpts of record).

The Order of the Board is ENFORCED. The UAW's request for modification of the Order is DENIED.