                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1149



B&G BUILDING MAINTENANCE, INCORPORATED,

                                                          Petitioner,

           versus


NATIONAL LABOR RELATIONS BOARD,

                                                          Respondent.



                             No. 04-1238



NATIONAL LABOR RELATIONS BOARD,

                                                          Petitioner,

           versus


B&G BUILDING MAINTENANCE, INCORPORATED,

                                                          Respondent.



On Petition for Review and Cross-petition for Enforcement of an
Order of the National Labor Relations Board. (5-CA-29225)


Argued:   October 27, 2004                 Decided:   January 6, 2005


Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.
Petition for review denied and cross-petition for enforcement
granted by unpublished per curiam opinion.


ARGUED: Douglas Michael Topolski, MCGUIREWOODS, L.L.P., Baltimore,
Maryland, for B&G Building Maintenance, Incorporated.       Fred B.
Jacob, Appellate Court Branch, Office of General Counsel, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for the Board. ON BRIEF:
Elena D. Marcuss, MCGUIREWOODS, L.L.P., Baltimore, Maryland, for
B&G Building Maintenance, Incorporated.      Arthur F. Rosenfeld,
General Counsel, John E. Higgins, Jr., Deputy General Counsel, John
H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, Margaret A. Gaines, Settlement Director,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

            B&G Building Maintenance, Inc. (B&G) petitions for review

of an order of the National Labor Relations Board (the Board).             The

order granted summary judgment against B&G and included Board

findings that the company had engaged in unfair labor practices

against its employees in violation of section 8(a)(1) and (3) of

the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3).

The case involves a March 2001 settlement between B&G, a small

cleaning contractor, and the Board.           The settlement related to

charges     that   B&G   attempted    to   prevent    its    employees     from

unionizing.        B&G agreed to pay a total of $28,000 to eight

aggrieved    employees    in   four   installments.         To   ensure   B&G’s

performance, the settlement provided that if B&G failed to meet its

obligations, the Board could find the allegations of the General

Counsel’s complaint to be true and enter an appropriate order

against B&G.

            On July 23, 2001, the Board’s General Counsel filed a

motion for summary judgment with the Board on the ground that B&G

was in substantial breach of the settlement agreement.              The Board

issued B&G a notice to show cause why summary judgment should not

be granted against it; however, due to an “inadvertent error,” J.A.

176, the notice was sent to the wrong address.              In the absence of

a response, the Board assumed that B&G had decided not to contest

the motion, awarded summary judgment, and found that B&G had


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committed   the   unfair    labor   practices   alleged   in   the   General

Counsel’s complaint.       On September 3, 2002, the Board filed an

application for enforcement of its order in this court.                   B&G

opposed the motion on the grounds that it had not received notice

of the show cause order in time to defend itself.         After initially

disputing B&G’s account, the Board withdrew its application for

enforcement on October 1, 2002.

            On March 5, 2003, the Board issued B&G a second notice to

show cause, this time mailing it to the correct address.                  The

deadline for B&G’s response was March 20, 2003. B&G’s lead counsel

was on vacation the week of March 17, 2003, and, before leaving, he

had asked an associate to oversee the filing of the response.             Due

to a miscommunication between lead counsel and the associate, the

associate believed the deadline was Friday, March 21, 2003, and she

filed the response on that date.           On April 4, 2003, the Board

notified B&G by telephone that the response was one day late.             B&G

promptly filed a motion asking the Board to accept the late

response.    The motion was supported by the associate’s affidavit,

which   stated    that    the   day-late   filing   was   caused     by   the

miscommunication.        On May 21, 2003, the Board issued an order

denying B&G’s motion to accept its response.              The Board then

treated the General Counsel’s motion for summary judgment as

uncontroverted, found that B&G had engaged in the unfair labor

practices alleged in the complaint, and on May 30, 2003, ordered


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remedies accordingly.     Later, the Board filed an application in

this court seeking summary enforcement of its May 30, 2003, order.

B&G argued in response that the Board abused its discretion by

refusing to accept B&G’s late filing.            We denied the Board’s

summary enforcement application, and the Board filed a cross-

petition for enforcement.

           The Board’s regulations provide that pleadings filed late

will be accepted “only upon good cause shown based on excusable

neglect and when no undue prejudice would result.”                29 C.F.R.

§ 102.111(c).    A determination of excusable neglect is based on

several   factors,   including   “the   danger   of   prejudice    [to     the

opposing side], the length of the delay and its potential impact on

judicial proceedings, the reason for the delay, including whether

it was within the reasonable control of the movant, and whether the

movant acted in good faith.”      Pioneer Investment Services Co. v.

Brunswick Assoc., 507 U.S. 380, 395 (1993).       The most important of

these factors is the untimely party’s reason for delay.            Thompson

v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir. 1996).

Even if all of the other factors weigh in favor of the untimely

party, neglect is not excusable “when there is no proffered reason

that would justify, or . . . plausibly explain, [the] misreading of

the rules.”   Hospital Del Maestro v. NLRB, 263 F.3d 173, 175 (1st

Cir. 2001).   The Board has held that “a late document will not be

excused   when   the   reason    for    the   tardiness   is      solely    a


                                   5
miscalculation of the filing date.”                Int’l Union of Elevator

Constructors, Local No. 2, 337 N.L.R.B. 426, 428 (2002). Here, the

Board denied B&G’s motion to accept its late filing on the ground

that the reason for the delay -- miscommunication between B&G’s

counsel as to the due date -- “do[es] not rise to the level of

excusable neglect.”        J.A. 203.

             B&G argues that the Board abused its discretion by

declining to find excusable neglect.            It emphasizes that a one-day

delay is the shortest possible, that it acted in good faith, and

that   a   finding    of   excusable   neglect    would    not   prejudice   the

opposing side.       It also notes that neither the General Counsel nor

the charging party opposed the motion to file out of time and that

B&G cooperated fully with the General Counsel when the Board

mistakenly sent the original order to show cause to the wrong

address.

             A showing of excusable neglect requires at least some

“pardonable reason” for failure to meet the deadline. Del Maestro,

263 F.3d at 175.        The only reason given by B&G is that its lead

counsel was on vacation, and there was a miscommunication about the

filing deadline between lead counsel and the associate who was to

take care of the filing.            B&G argues that a miscommunication,

unlike     carelessness    or   a   miscalculation    of   the   deadline,   is

sufficient to find excusable neglect when all of the other factors

weigh in the late party’s favor.            Pioneer, however, cautioned that


                                        6
excuses such as “upheaval in [an attorney’s] law practice” should

be given little weight “[i]n assessing the culpability of . . .

counsel.”     Pioneer, 507 U.S. at 398.      This suggests that the Board

did not err in concluding that the explanation offered here --

miscommunication among counsel about a filing deadline as lead

counsel was leaving for vacation -- does not amount to excusable

neglect.     Although we are sympathetic to B&G’s position, we cannot

say   that   the   Board   abused   its   discretion   by   rejecting   B&G’s

untimely response.     Accordingly, we deny B&G’s petition for review

and grant the Board’s cross-petition for enforcement of its order.

                                        PETITION FOR REVIEW DENIED AND
                                CROSS-PETITION FOR ENFORCEMENT GRANTED




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