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Local Union 36, International Brotherhood of Electrical Workers, Afl-Cio v. National Labor Relations Board

November 12, 2010

LOCAL UNION 36, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, PETITIONER,
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT.



The opinion of the court was delivered by: Gerard E. Lynch, Circuit Judge:

10-3448-ag

Local Union 36 Int'l v. Nat'l Labor Relations Board

Submitted on: October 19, 2010

Before: NEWMAN, WINTER, and LYNCH, Circuit Judges.

31 Respondent National Labor Relations Board moves to transfer this case to the 32 District of Columbia Circuit. It argues that, because it did not receive from either party a 33 petition for review "stamped by the court with the date of filing," 28 U.S.C. § 2112(a)(2), 34 the case should be heard in that Circuit, where proceedings in this matter were first 35 instituted pursuant to 28 U.S.C. § 2112(a). We conclude that, where a party files a 1 petition for review in the Second Circuit and then serves the agency with the petition 2 accompanied by the email, bearing the date and time of filing, by which the petition was 3 filed, the party has satisfied the requirements of 28 U.S.C. § 2112(a)(2).

DENIED.

18 Respondent National Labor Relations Board ("NLRB") moves to transfer this 19 case to the District of Columbia Circuit. It argues that, because it did not receive a 20 petition for review "stamped by the court with the date of filing," 28 U.S.C. § 2112(a)(2), 21 from either party seeking review of its decision, the case should be heard where 22 proceedings were first instituted, in the D.C. Circuit, pursuant to 28 U.S.C. § 2112(a).

23 We conclude that, where a party files a petition for review in the Second Circuit and then 24 serves the agency with the petition accompanied by the email, bearing the date and time 25 of filing, by which the petition was filed, the party has satisfied the requirements of 1 U.S.C. § 2112(a)(2). We therefore deny the motion.

BACKGROUND

On August 16, 2010, the NLRB issued a Decision and Order requiring Rochester 4 Gas & Electric Corporation ("Rochester Gas") to bargain with Local Union 36, 5 International Brotherhood of Electrical Workers, AFL-CIO ("Local Union 36"), 6 regarding the effects of Rochester Gas's decision to discontinue the practice of allowing 7 company employees to take their service vehicles home at the end of their shifts. On 8 August 20, 2010, Rochester Gas filed a petition for review of the NLRB's order in the 9 District of Columbia Circuit. Rochester Gas also served a copy of the petition, via 10 Federal Express, upon the NLRB. The D.C. Circuit court date-stamped Rochester Gas's 11 petition for review as "filed" on August 20, 2010, but the copy of the petition sent to the 12 NLRB was not date-stamped. On August 26, 2010, Local Union 36 electronically filed a 13 petition for review of the NLRB's order in this Court, and emailed a copy of the petition, 14 accompanied by a copy of the electronic filing message sent to this Court, to the NLRB. 15 The emailed copy of the petition was not date-stamped directly by the Court with the date 16 of filing, but the copy of the electronic filing message forwarded along with the petition 17 did contain the date and time the petition for review was filed. 18 The NLRB now moves to transfer this case to the D.C. Circuit pursuant to 28 19 U.S.C. § 2112. Separately, Rochester Gas moves to intervene as of right pursuant to Fed. 20 R. App. P. 15(d). It does not address the NLRB's motion to transfer venue.

DISCUSSION

Pursuant to 28 U.S.C. § 2112(a)(1), if, within ten days after the issuance of an 3 order, the NLRB receives only one "petition for review" filed in a court of appeals, then it 4 must file the relevant record in that court of appeals, "notwithstanding the institution in 5 any other court of appeals of proceedings for review of that order." Id. If, however, the 6 NLRB receives, within ten days, two "petitions for review" filed in separate courts of 7 appeals, then it must notify the judicial panel on multidistrict litigation, which "shall, by 8 means of random selection, designate one court of appeals in . . . which petitions for 9 review have been filed and received within the ten-day period . . . and shall issue an order 10 consolidating the petitions for review in that court of appeals." Id. § 2112(a)(3). In any 11 other case, where proceedings respecting the same order were instituted in two or more 12 courts of appeals, but no "petition for review" is filed within ten days of the order, the 13 board "shall file the record in the court in which proceedings with respect to the order 14 were first instituted." Id. § 2112(a)(1). All courts where proceedings have been instituted 15 regarding the same order must transfer the proceedings to the court where the record is 16 properly filed. Id. § 2112(a)(5).

At issue in the instant motion is what constitutes a "petition for review" for 18 purposes of section 2112(a), which in this case turns on the meaning of the seemingly 19 straightforward phrase "stamped with the date of filing." The statute states that "a copy 20 of the petition or other pleading which institutes proceedings in a court of appeals and 4 1 which is stamped by the court with the date of filing shall constitute the petition for 2 review." Id. § 2112(a)(2) (emphasis added).

The NLRB acknowledges that it received two copies of petitions instituting 4 proceedings within ten days of its order and that, if it receives two qualifying "petitions 5 for review" filed in two different courts of appeals within ten days of an order, then the 6 court of appeals that will hear the case is determined randomly. Id. § 2112(a)(3). 7 However, it argues that, because neither of the copies of the petitions it received were 8 "stamped by the court with the date of filing," id. § 2112(a)(2), they did not constitute 9 "petition[s] for review" for purposes of the statute, and, therefore, it received no 10 "petitions for review" within ten days of the order. ...


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