[Federal Register Volume 61, Number 37 (Friday, February 23, 1996)]
[Rules and Regulations]
[Pages 6940-6942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4155]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Part 102
Modifications to Role of National Labor Relations Board's
Administrative Law Judges Including: Assignment of Administrative Law
Judges as Settlement Judges; Discretion of Administrative Law Judges to
Dispense With Briefs, to Hear Oral Argument in Lieu of Briefs, and to
Issue Bench Decisions
AGENCY: National Labor Relations Board.
ACTION: Final rule.
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SUMMARY: The National Labor Relations Board (NLRB) issues a final rule
permanently implementing its recent experimental modification to its
rules authorizing the use of settlement judges and providing
administrative law judges (ALJs) with the discretion to dispense with
briefs, to hear oral argument in lieu of briefs, and to issue bench
decisions.
EFFECTIVE DATE: March 1, 1996.
FOR FURTHER INFORMATION CONTACT: John J. Toner, Executive Secretary,
National Labor Relations Board, 1099 14th Street, NW., Room 11600,
Washington, D.C. 20570. Telephone: (202) 273-1940.
SUPPLEMENTARY INFORMATION: On September 8, 1994, the Board issued a
Notice of Proposed Rulemaking (NPR) which proposed certain
modifications to the Board's rules to permit the assignment of ALJs to
serve as settlement judges, and to provide ALJs with the discretion to
dispense with briefs, to hear oral argument in lieu of briefs, and to
issue bench decisions (59 FR 46375). The NPR provided for a comment
period ending October 7, 1994.
On December 22, 1994, following consideration of the comments
received to the NPR, the Board 1 issued a notice implementing, on
a one-year experimental basis, the proposed modifications (59 FR
65942). The notice provided that the modifications would become
effective on February 1, 1995, and would expire at the end of the one-
year experimental period on January 31, 1996, absent renewal by the
Board.
\1\ Chairman Gould and Members Devaney and Browning; Members
Stephens and Cohen dissenting in part.
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On December 1, 1995, following a review of the experience to date
with the modifications and the views of the NLRB's Advisory Committee
on Agency Procedure, the Board issued a notice proposing to make the
modifications permanent upon expiration of the one-year experimental
period on January 31, 1996 (60 FR 61679). The notice provided for a
period of public comment on this proposal, until December 29, 1995.
Thereafter, in light of the shutdown of Agency operations due to
the lack of appropriated funds, on January 19, 1996, the Board extended
from December 29, 1995, until January 25, 1996, the deadline for filing
comments (61 FR 1314). The same day, the Board also extended the
experimental period from January 31, 1996, until March 1, 1996, to
provide the Board time to consider any comments that were filed (61 FR
1281).
The Board received only one comment in response to its December 1,
1995 notice, from William K. Harvey of Jackson, Shields, Yeiser &
Cantrell, Cordova, Tennessee. The comment recommended that the Board
make the modification regarding settlement judges permanent and that
settlement judges be used in more cases. The comment recommended,
however, that the Board modify the requirement that all parties consent
to the procedure by requiring any party who objects to the appointment
of a settlement judge to show good cause for such objection and
allowing the chief or associate chief
[[Page 6941]]
judge to consider the reasons stated and grant or deny the motion
notwithstanding the stated opposition. The comment also recommended
that the settlement judge be given the authority and discretion to
postpone the scheduled hearing where the settlement judge determines
that a brief postponement would serve the purposes of settlement.
With respect to the modification permitting bench decisions, the
comment urged that this modification be abolished, citing in support
two ALJ bench decisions which the comment asserts were terse and
confusing.\2\ Alternatively, the comment recommended that the Board
adopt a rule that such decisions will never be published in Board
reports.
\2\The Riverboat Hotel, 319 NLRB No. 30 (Sept. 29, 1995); and
Kinco, Ltd., 319 NLRB No. 56 (Oct. 23, 1995) (Member Cohen
dissenting in relevant part).
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Having carefully considered the foregoing comment, we have decided,
consistent with and for the reasons stated in the December 1, 1995
notice, to implement, on a permanent basis and without change, the
experimental modification to the Board's rules with respect to both
settlement judges and bench decisions. As indicated in the December 1,
1995 notice, many of the issues raised by the comment were considered
by the NLRB Advisory Committee on Agency Procedure, and either the
Management or the Union-side Panel of the Advisory Committee indicated
strong opposition to the modifications to the settlement judge
procedure proposed in the comment. Thus, as indicated in that notice,
the Management-side Panel indicated strong opposition to modifying the
current consensual aspect of the settlement judge procedure, and the
Union-side Panel indicated strong opposition to providing the
settlement judge with the authority to postpone the trial date. In
light of the views of the Advisory Committee, we do not believe the
procedure should be modified as recommended by the comment at this
time.
With respect to the bench decision procedure, as indicated in the
December 1, 1995 notice, in the vast majority of cases during the
experimental period involving a bench decision either no exceptions
were filed to the ALJ's bench decision or the Board short-form adopted
the decision. In those cases where no exceptions were filed to the
ALJ's bench decision, the decision was not published in Board reports
consistent with the Board's historical practice where no exceptions are
filed. The other decisions were published pursuant to the Board's usual
procedure, and we believe that publishing such decisions, on balance,
is generally beneficial to the public and should be continued where
appropriate.
Accordingly, we conclude that the experimental modifications should
be permanently implemented without change.
As required by the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the NLRB certifies that these rules will not have a significant
impact on small business entities.
List of Subjects in 29 CFR Part 102
Administrative practice and procedure, Labor management relations.
29 CFR Part 102 is amended as follows:
PART 102--RULES AND REGULATIONS, SERIES 8
1. The authority citation for 29 CFR Part 102 continues to read as
follows:
Authority: Section 6, National Labor Relations Act, as amended
(29 U.S.C. 151, 156). Section 102.117(c) also issued under Section
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C.
552(a)(4)(A)). Sections 102.143 through 102.155 also issued under
Section 504(c)(1) of the Equal Access to Justice Act, as amended (5
U.S.C. 504(c)(1)).
2. Section 102.35 is revised to read as follows:
Sec. 102.35 Duties and powers of administrative law judges; assignment
and powers of settlement judges.
(a) It shall be the duty of the administrative law judge to inquire
fully into the facts as to whether the respondent has engaged in or is
engaging in an unfair labor practice affecting commerce as set forth in
the complaint or amended complaint. The administrative law judge shall
have authority, with respect to cases assigned to him, between the time
he is designated and transfer of the case to the Board, subject to the
Rules and Regulations of the Board and within its powers:
(1) To administer oaths and affirmations;
(2) To grant applications for subpoenas;
(3) To rule upon petitions to revoke subpoenas;
(4) To rule upon offers of proof and receive relevant evidence;
(5) To take or cause depositions to be taken whenever the ends of
justice would be served thereby;
(6) To regulate the course of the hearing and, if appropriate or
necessary, to exclude persons or counsel from the hearing for
contemptuous conduct and to strike all related testimony of witnesses
refusing to answer any proper question;
(7) To hold conferences for the settlement or simplification of the
issues by consent of the parties, but not to adjust cases;
(8) To dispose of procedural requests, motions, or similar matters,
including motions referred to the administrative law judge by the
Regional Director and motions for summary judgment or to amend
pleadings; also to dismiss complaints or portions thereof; to order
hearings reopened; and upon motion order proceedings consolidated or
severed prior to issuance of administrative law judge decisions;
(9) To approve a stipulation voluntarily entered into by all
parties to the case which will dispense with a verbatim written
transcript of record of the oral testimony adduced at the hearing, and
which will also provide for the waiver by the respective parties of
their right to file with the Board exceptions to the findings of fact
(but not to conclusions of law or recommended orders) which the
administrative law judge shall make in his decisions;
(10) To make and file decisions, including bench decisions
delivered within 72 hours after conclusion of oral argument, in
conformity with Public Law 89-554, 5 U.S.C. 557;
(11) To call, examine, and cross-examine witnesses and to introduce
into the record documentary or other evidence;
(12) To request the parties at any time during the hearing to state
their respective positions concerning any issue in the case or theory
in support thereof;
(13) To take any other action necessary under the foregoing and
authorized by the published Rules and Regulations of the Board.
(b) Upon the request of any party or the judge assigned to hear a
case, or on his or her own motion, the chief administrative law judge
in Washington, D.C., the deputy chief judge in San Francisco, the
associate chief judge in Atlanta, or the associate chief judge in New
York may assign a judge who shall be other than the trial judge to
conduct settlement negotiations. In exercising his or her discretion,
the chief, deputy chief, or associate chief judge making the assignment
will consider, among other factors, whether there is reason to believe
that resolution of the dispute is likely, the request for assignment of
a settlement judge is made in good faith, and the assignment is
otherwise feasible. Provided, however, that no such assignment shall be
made absent
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the agreement of all parties to the use of this procedure.
(1) The settlement judge shall convene and preside over conferences
and settlement negotiations between the parties, assess the
practicalities of a potential settlement, and report to the chief,
deputy, or associate the status of settlement negotiations,
recommending continuation or termination of the settlement
negotiations. Where feasible settlement conferences shall be held in
person.
(2) The settlement judge may require that the attorney or other
representative for each party be present at settlement conferences and
that the parties or agents with full settlement authority also be
present or available by telephone.
(3) Participation of the settlement judge shall terminate upon the
order of the chief, deputy, or associates issued after consultation
with the settlement judge. The conduct of settlement negotiations shall
not unduly delay the hearing.
(4) All discussions between the parties and the settlement judge
shall be confidential. The settlement judge shall not discuss any
aspect of the case with the trial judge, and no evidence regarding
statements, conduct, offers of settlement, and concessions of the
parties made in proceedings before the settlement judge shall be
admissible in any proceeding before the Board, except by stipulation of
the parties. Documents disclosed in the settlement process may not be
used in litigation unless voluntarily produced or obtained pursuant to
subpoena.
(5) No decision of a chief, deputy, or associate concerning the
assignment of a settlement judge or the termination of a settlement
judge's assignment shall be appealable to the Board.
(6) Any settlement reached under the auspices of a settlement judge
shall be subject to approval in accordance with the provisions of
Sec. 101.9 of the Board's Statements of Procedure.
3. Section 102.42 is revised to read as follows:
Sec. 102.42 Filings of briefs and proposed findings with the
administrative law judge and oral argument at the hearing.
Any party shall be entitled, upon request, to a reasonable period
at the close of the hearing for oral argument, which may include
presentation of proposed findings and conclusions, and shall be
included in the stenographic report of the hearing. In the discretion
of the administrative law judge, any party may, upon request made
before the close of the hearing, file a brief or proposed findings and
conclusions, or both, with the administrative law judge, who may fix a
reasonable time for such filing, but not in excess of 35 days from the
close of the hearing. Requests for further extensions of time shall be
made to the chief administrative law judge in Washington, D.C., to the
deputy chief judge in San Francisco, California, to the associate chief
judge in New York, New York, or to the associate chief judge in
Atlanta, Georgia, as the case may be. Notice of the request for any
extension shall be immediately served on all other parties, and proof
of service shall be furnished. Three copies of the brief or proposed
findings and conclusions shall be filed with the administrative law
judge, and copies shall be served on the other parties, and a statement
of such service shall be furnished. In any case in which the
administrative law judge believes that written briefs or proposed
findings of fact and conclusions may not be necessary, he or she shall
notify the parties at the opening of the hearing or as soon thereafter
as practicable that he or she may wish to hear oral argument in lieu of
briefs.
4. In Sec. 102.45, paragraph (a) is revised to read as follows:
Sec. 102.45 Administrative law judge's decision; contents; service;
transfer of case to the Board; contents of record in case.
(a) After hearing for the purpose of taking evidence upon a
complaint, the administrative law judge shall prepare a decision. Such
decision shall contain findings of fact, conclusions, and the reasons
or basis therefor, upon all material issues of fact, law, or discretion
presented on the record, and shall contain recommendations as to what
disposition of the case should be made, which may include, if it be
found that the respondent has engaged in or is engaging in the alleged
unfair labor practices, a recommendation for such affirmative action by
the respondent as will effectuate the policies of the Act. The
administrative law judge shall file the original of his decision with
the Board and cause a copy thereof to be served on each of the parties.
If the administrative law judge delivers a bench decision, promptly
upon receiving the transcript the judge shall certify the accuracy of
the pages of the transcript containing the decision; file with the
Board a certified copy of those pages, together with any supplementary
matter the judge may deem necessary to complete the decision; and cause
a copy thereof to be served on each of the parties. Upon the filing of
the decision, the Board shall enter an order transferring the case to
the Board and shall serve copies of the order, setting forth the date
of such transfer, on all the parties. Service of the administrative law
judge's decision and of the order transferring the case to the Board
shall be complete upon mailing.
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Dated, Washington, D.C., February 16, 1996.
By direction of the Board: \3\
\3\ Chairman Gould and Members Browning and Fox; Member Cohen
dissenting in part. Member Cohen's partial dissent is attached.
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John J. Toner,
Executive Secretary.
Dissenting Opinion of Member Cohen
I agree with the rule concerning settlement judges. However, I
do not agree with the rule which gives judges the power to issue
bench decisions and the related power to preclude written briefs.
In my dissent from the promulgation of the experimental rule (a
dissent joined by former Member Stephens), I set forth Board law
which holds that bench decisions are contrary to the provisions of
Section 10(c) of the Act.\4\ My colleagues, in apparent recognition
of this fact, chose to summarily overrule that Board law. However,
as I noted in my dissent, if Section 10(c) forbids bench decisions,
the Board is without statutory power to establish a rule which
permits such decisions.\5\
\4\ Plastic Film Products Corp., 232 NLRB 722 (1977); Local
Union No. 195, 237 NLRB 931 (1978).
\5\ See Chevron U.S.A. v. Natural Resources Defense Council, 467
U.S. 837, 842, 843 (1984).
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My colleagues have not answered this threshold problem. Further,
even if they were to do so (to their satisfaction), that does not
end the matter. The issue will undoubtedly be the subject of
litigation in the federal courts, delaying the prompt enforcement of
Board orders. Thus, the rule is at cross-purposes with its stated
goal--the prompt resolution of unfair labor practice cases. Further,
in my prior dissent, I set forth other concerns about the rule. At
this juncture, I cannot say with certainty whether these concerns
have been borne out by experience. During the experimental time
frame, there have been only 10 bench decisions out of the 400
decisions issued (2.5%). However, that very paucity of decisions
bespeaks an important point. Our judges, to their credit, have
exercised prudent restraint in exercising the power to issue bench
decisions. Accordingly, for the most part, problems have not
surfaced.\6\ As long as such restraint is exercised, my concerns may
well be allayed. I am hopeful, and cautiously optimistic, that this
will be the case.
\6\ However, there was a substantial problem, in my view, in
Kinco, 319 NLRB No. 56.
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[FR Doc. 96-4155 Filed 2-22-96; 8:45 am]
BILLING CODE 7545-01-P
