FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 20, 2009

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 08-15097

Non-Argument Calendar

 

NLRB Nos. 15-CA-15350

15-CA-15388

WILLIAM A. GREENE,

a.k.a. Arnold Greene,

CYNTHIA D. GREENE,

PetitionersCross-Respondents,

versus

NATIONAL LABOR RELATIONS BOARD,

RespondentCross-Petitioner.

 

Petition for Review of an Order and Cross Application for 

Enforcement of the National Labor Relations Board

 

(March 20, 2009)
Before BIRCH, DUBINA and HULL, Circuit Judges.

PER CURIAM:

This case is before us on petition for review and cross-application for

enforcement of an order of the National Labor Relations Board (“NLRB”). The

only issue pending in this petition is whether the NLRB reasonably determined

that William A. Greene and Cynthia Greene (“the Greenes”) failed to establish that

the NLRB’s associate chief administrative law judge (“ALJ”) abused his

discretion by denying their motion for continuance of an October 30, 2002,

compliance hearing.

We review for abuse of discretion an administrative law judge’s refusal to

grant a hearing continuance. NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d

569, 576 (5th Cir. 1966). 

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After reviewing the record, and reading the parties’ briefs, we conclude that

there is no reversible error. Interestingly, in their petition, the Greenes do not

contest any portion of the second supplemental decision and order in which the

NLRB determined that they were personally liable for their company’s back pay

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted 1

as binding precedent all of the decisions of the former Fifth Circuit handed down prior to October

1, 1981. 

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obligation. Moreover, the exact amounts of those obligations were previously

enforced by the D.C. Circuit Court of Appeals in Carpenters & Millwrights, Local

Union 2471 v. NLRB, 481 F.3d 804 (D.C. Cir. 2007). Hence, the NLRB requests

that if we reject the Greenes’ due process argument, then the NLRB is entitled to

summary enforcement of its order in full. See NLRB v. Dynatron/Bondo Corp.,

176 F.3d 1310, 1313 n.2 (11th Cir. 1999).

On the merits of the Greenes’ motion to continue, the NLRB found that the

Greenes failed to establish that the ALJ abused his discretion by denying their

motion. The Greenes’ motion to continue only claimed that lead counsel had an

unnamed scheduling conflict on the hearing day and that the Greenes had

insufficient time to prepare a defense because the compliance specification was 26

pages long and covered back pay for 118 employees. The ALJ denied the motion,

finding that the Greenes had not established good cause for delaying the case,

which had been actively litigated since 1999. More specifically, the ALJ asserted

that Greenes’ counsel had given no particulars regarding his asserted calendar

conflict, nor had he suggested what issues, if any, complicated his hearing

preparation other than the length of the compliance specification. In a motion for

reconsideration, the Greenes did not cure their earlier deficiencies. Importantly,

the Greenes did appear at the hearing, testified, and put on a defense, represented

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by another lawyer in the same law firm. Consequently, the NLRB found that the

ALJ did not abuse his discretion and that the Greenes’ due process rights were not

violated. We agree.

Moreover, the Greenes have failed to assert - let alone establish - the

requisite “positive showing of prejudice” needed to support a finding that an ALJ

abused his discretion. See Daylight Grocery Co. v. NLRB, 678 F.2d 905, 910

(11th Cir. 1982). Accordingly, we deny the Greenes’ petition for review but grant

the cross-application for enforcement.

PETITION FOR REVIEW DENIED, CROSS-APPLICATION FOR

ENFORCEMENT GRANTED.

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