04-504. Revisions of Regulations Concerning Applicability of Rules Governing Motions for Summary Judgment or Dismissal to Motions for Default Judgment

AGENCY:

National Labor Relations Board.

ACTION:

Final rule.

SUMMARY:

The Board is revising its Rules and Regulations (Motions), (Duties and Powers of Administrative Law Judges), and (Filing and Service of Papers), to clarify, consistent with longstanding Board policy, that the provisions of those sections applicable to motions for summary judgment or dismissal also generally apply to motions for default judgment.

DATES:

Effective January 12, 2004.

FOR FURTHER INFORMATION CONTACT:

Lester A. Heltzer, Executive Secretary, 202-273-1067.

SUPPLEMENTARY INFORMATION:

Sections 102.24, 102.35, and 102.114 of the Board's Rules and Regulations contain provisions governing the filing of motions for summary judgment or dismissal with the Board prior to the hearing, authorizing administrative law judges to rule on motions for summary judgment or dismissal, and prohibiting the filing of motions for summary judgment or dismissal by facsimile transmission. Historically, the Board has applied those provisions to motions for judgment based on the respondent's failure to file an answer to the complaint or compliance specification, referring to such motions as motions for “summary judgment.” However, the term “default judgment” more accurately describes a judgment issued for failure to file an answer,^[1] and the Board has consistently used that term in its more recent decisions and orders.^[2] Accordingly, the Board is revising the above sections of its rules to incorporate that term and thereby clarify that those sections apply to motions for default judgment.

The revisions to the Board's rules are purely changes of nomenclature and do not effect any substantive or procedural change in the way that the Board processes or resolves motions for summary judgment based on the respondent's failure to file an answer to the complaint. The one exception is that motions for default judgment will not be subject to the requirement in Section 102.24(b) that motions for summary judgment or dismissal be filed no later than 28 days before the hearing. The Board's experience is that this time limitation is unnecessary in situations where the respondent has failed to file an answer to the complaint.

Administrative Procedure Act

Because the change involves rules of agency organization, procedure or practice, no notice of proposed rulemaking is required under Section 553 of the Administrative Procedure Act (5 U.S.C. 553).

Regulatory Flexibility Act

Because no notice of proposed rulemaking is required for procedural rules, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) pertaining to regulatory flexibility analysis do not apply to these rules. However, even if the Regulatory Flexibility Act were to apply, the NLRB certifies that these changes will not have a significant economic impact on small business entities since the changes are purely changes of nomenclature and merely clarify the rules to conform to the actual practice under the existing rules.

Small Business Regulatory Enforcement Fairness Act

Because the rule changes relate to agency procedure and practice and merely clarify the rules to conform to existing practices, the NLRB has determined that the Congressional review provisions of the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801) do not apply.

Paperwork Reduction Act

This part does not impose any reporting or record keeping requirements under the Paperwork Reduction Act of 1995.

List of Subjects in 29 CFR Part 102

• Administrative practice and procedure
• Labor management relations

For the reasons set forth above, the NLRB amends 29 CFR Part 102 as follows:

PART 102—RULES AND REGULATIONS

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 102.24 is revised to read as follows:

§ 102.24

Motions; where to file; contents; service on other parties; promptness in filing and response; default judgment procedures; summary judgment procedures.

(a) All motions under §§ 102.22 and 102.29 made prior to the hearing shall be filed in writing with the Regional Director issuing the complaint. All motions for default judgment, summary judgment, or dismissal made prior to the hearing shall be filed in writing with the Board pursuant to the provisions of § 102.50. All other motions made prior to the hearing, including motions to reschedule the hearing under circumstances other than those set forth in § 102.16(a), shall be filed in writing with the chief administrative law judge in Washington, DC, with the associate chief judge in San Francisco, California, with the associate chief judge in New York, New York, or with the associate chief judge in Atlanta, Georgia, as the case may be. All motions made at the hearing shall be made in writing to the administrative law judge or stated orally on the record. All motions filed subsequent to the hearing, but before the transfer of the case to the Board pursuant to § 102.45, shall be filed with the administrative law judge, care of the chief administrative law judge in Washington, DC, the deputy chief judge in San Francisco, California, the associate chief judge in New York, New York, or the associate chief judge in Atlanta, Georgia, as the case may be. Motions shall briefly state the order or relief applied for and the grounds therefor. All motions filed with a Regional Director or an administrative law judge as set forth in this paragraph shall be filed therewith by transmitting three copies thereof together with an affidavit of service on the parties. All motions filed with the Board, including motions for default judgment, summary judgment, or dismissal, shall be filed with the Executive Secretary of the Board in Washington, DC, by transmitting eight copies thereof together with an affidavit of service on the parties. Unless otherwise provided in 29 CFR part 102, motions and responses thereto shall be filed promptly and within such time as not to delay the proceeding.

(b) All motions for summary judgment or dismissal shall be filed with the Board no later than 28 days prior to the scheduled hearing. Where no hearing is scheduled, or where the hearing is scheduled less than 28 days after the date for filing an answer to the complaint or compliance specification, whichever is applicable, the motion shall be filed promptly. Upon receipt of a motion for default judgment, summary judgment, or dismissal, the Board may deny the motion or issue a notice to show cause why the motion should not be granted. If a notice to show cause is issued, the hearing, if scheduled, will normally be postponed indefinitely. If a party desires to file an opposition to the motion prior to issuance of the notice to show cause in order to prevent postponement of the hearing, it may do so; Provided however, That any such opposition shall be filed no later than 21 days prior to the hearing. If a notice to show cause is issued, an opposing party may file a response thereto notwithstanding any opposition it may have filed prior to issuance of the notice. The time for filing the response shall be fixed in the notice to show cause. It is not required that either the opposition or the response be supported by affidavits or other documentary evidence showing that there is a genuine issue for hearing. The Board in its discretion may deny the motion where the motion itself fails to establish the absence of a genuine issue, or where the opposing party's pleadings, opposition and/or response indicate on their face that a genuine issue may exist. If the opposing party files no opposition or response, the Board may treat the motion as conceded, and default judgment, summary judgment, or dismissal, if appropriate, shall be entered.

3. In § 102.35 paragraph (a) introductory text is republished and (a)(8) is revised to read as follows:

§ 102.35

Duties and powers of administrative law judges; stipulations of cases to administrative law judges or to the Board; 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:

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(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 default judgment, 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;

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4. Section 102.114(g) is revised to read as follows:

§ 102.114

Filing and service of papers by parties; form of papers; manner and proof of filing or service; electronic filings.

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(g) Facsimile transmissions of the following documents will not be accepted for filing: Showing of Interest in Support of Representation Petitions, including Decertification Petitions; Answers to Complaints; Exceptions or Cross-Exceptions; Briefs; Requests for Review of Regional Director Decisions; Administrative Appeals from Dismissal of Petitions or Unfair Labor Practice Charges; Objections to Settlements; EAJA Applications; Motions for Default Judgment; Motions for Summary Judgment; Motions to Dismiss; Motions for Reconsideration; Motions to Clarify; Motions to Reopen the Record; Motions to Intervene; Motions to Transfer, Consolidate or Sever; or Petitions for Advisory Opinions. Facsimile transmissions in contravention of this rule will not be filed.

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Dated: January 6, 2004.

By direction of the Board.

Lester A. Heltzer,

Executive Secretary.

Footnotes

1.  See NLRB v. Aaron Convalescent Home, 479 F.2d 736, 739 (6th Cir. 193).

2.  See, e.g., Rosedale Fabricators, LLC, 340 NLRB No. 67 (2003); Hawk One Security, 339 NLRB No. 65 (2003); and Malik Roofing Corp., 338 NLRB No. 141 (2003).