In re Grievance of Edward Von Turkovich
In re Grievance of Edward Von Turkovich
Opinion
¶ 1. Grievant Edward von Turkovich appeals the decision of the Vermont Labor Relations Board denying his motion to enlarge the time for him to file a notice of appeal. We affirm.
¶ 2. Grievant filed an employment grievance with the Board in January 2017. Grievant's employer filed an answer and a motion to dismiss the next month. Grievant filed a memorandum in opposition to the motion to dismiss in late March 2017. On the same day, the attorney representing grievant (attorney) moved offices. Prior to the move, attorney's law firm notified the United States Postal Service (USPS) that it should forward the firm's mail to the new address. Attorney did not update the firm's address with the Board, as required by Board rule. Vermont Labor Relations *976 Board Rules of Practice § 12.4 [hereinafter Rules of Practice], http://vlrb.vcms.vt.dev.cdc.nicusa.com/sites/vlrb/files/documents/Rules%20of%20Practice/Part%201/part1.htm (requiring attorney to notify Board if address changes while matter is pending). On June 13, 2017, the Board dismissed the grievance. That same day, the Board mailed the order dismissing the grievance to the address attorney had provided, which was attorney's former address. The Board's envelope read "return service requested," which led the USPS to return the order to the Board rather than forwarding it to attorney. The USPS took thirty-four days to do so, returning the mail on July 17, 2017. It is unknown what caused the delay in returning the mail. When returning the mail, the USPS provided the Board with attorney's forwarding address. The Board mailed the order to attorney a second time on July 18, 2017, this time to the current address, as provided by the USPS, and attorney received it on July 20, 2017. The Board also posted the decision on its website three days after it issued the order.
¶ 3. Grievant moved the Board for more time to appeal the dismissal. The Board follows the Vermont Rules of Appellate Procedure in reviewing appeals. V.R.A.P. 1 (stating Vermont Rules of Appellate Procedure apply to appeals of administrative decisions). According to the rules, a party must file an appeal within thirty days of the date the order being appealed was entered. V.R.A.P. 4(a). If a party fails to timely file, the party may request an extension of time in which to appeal. V.R.A.P. 4(d). To qualify for an extension, the party must file within thirty days of the initial appeal period, and he or she must show that the failure to file within the initial appeal period was due to "excusable neglect or good cause." V.R.A.P. 4(d)(1). In this case, the Board's order did not reach attorney until after the initial appeals period had passed. Attorney therefore requested the Board to extend the time in which to appeal. The Board denied the request, concluding there was no showing of excusable neglect or good cause, and therefore there was no basis to permit an extension of time. This appeal followed.
¶ 4. Attorney concedes that he made a mistake and cannot show good cause. Therefore, the only issue on appeal is whether the Board erred in finding the failure to file was not due to excusable neglect. We review the Board's decision for an abuse of discretion.
In re Stowe Cady Hill Solar, LLC
,
¶ 5. Any discussion of our approach to this standard must begin with
In re Town of Killington
, 2003 VT 87A,
¶ 6. In this case, attorney failed to update his mailing address with the Board in a timely manner, as required by Board rules. Rules of Practice § 12.4. As a result, grievant did not receive notice of the Board's order within the thirty-day appeals window. Applying the
Pioneer
test articulated by the United States Supreme Court, we agree with the Board that the factors of delay, prejudice, and good faith weigh in favor of grievant. But our primary focus must be the reason for the delay. The delayed notice was within attorney's control and is analogous to a breakdown in internal office procedures, which we repeatedly have found is not excusable neglect. See
Coles v. Coles
,
¶ 7. Grievant argues that although attorney had control over updating contact information and mail forwarding, he did not have control over the Board's decision to request "return service," which prevented mail forwarding to his new address, or the thirty-four days the USPS took to return the mail. Nor could have attorney foreseen the delay in receiving the order. Given that those factors outside of attorney's control contributed significantly to the delay in filing, attorney argues the failure was excusable. We disagree. Attorney could have avoided the present result simply by updating his mailing address with the Board between March 2017, when he moved, and June 2017, when the Board mailed the order.
¶ 8. Grievant also argues that when the Board emphasized attorney's mistake in its analysis, it conflated the "good cause" and "excusable neglect" standards and ruled that "any mistake is per se inexcusable." We do not understand the Board as saying that any mistake precludes excusable neglect, and we do not hold so here. By definition, excusable neglect is relevant only when there is a mistake, and heavily weighting the "reason for the delay, including whether it was in the reasonable control of the movant" does not render all mistakes per se inexcusable.
Clark
,
¶ 9. Accordingly, we conclude the Board did not abuse its discretion in holding that grievant's failure to file was not due to excusable neglect.
Affirmed .
Reference
- Full Case Name
- In RE Grievance of Edward VON TURKOVICH
- Cited By
- 7 cases
- Status
- Published