[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Rules and Regulations]
[Pages 56232-56237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27627]
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[[Page 56233]]
NATIONAL LABOR RELATIONS BOARD
29 CFR Part 102
Procedural Rules
AGENCY: National Labor Relations Board.
ACTION: Final rules.
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SUMMARY: The National Labor Relations Board is revising in several
respects its rules that govern filing and service of papers. The
principal revisions include permitting parties to file unfair labor
practice charges, petitions in representation proceedings, and
objections to elections by facsimile transmission, to permit the Board
to serve certain documents by regular mail, rather than by other more
expensive means, and generally to reorganize and modify certain
portions of the rules pertaining to filing and service. The revisions
are being adopted in order to expand the use of facsimile technology to
the service of charges, representation petitions, and election
objections, to reduce the cost to the agency of the prior requirements
that certain documents be served by certified or registered mail, and
to update certain other procedural aspects of the filing and service
requirements. The intended effect of the revisions is to permit parties
and the Board to take greater advantage of facsimile technology, to
reduce the cost of serving certain documents, and to update the rules
in other respects.
EFFECTIVE DATE: December 8, 1995.
FOR FURTHER INFORMATION CONTACT: John J. Toner, Acting Executive
Secretary, 1099 14th Street, N.W., Room 11602, Washington, D.C. 20570-
0001; Telephone: (202) 273-1934.
SUPPLEMENTARY INFORMATION: In 1990, the National Labor Relations Board
recognized that the use of facsimile systems was becoming more
prevalent in both the private and public sectors by modifying
Sec. 102.114 of its rules to permit certain documents to be served by
facsimile transmission. The Board's approach at that time was to move
cautiously into this new technological arena, taking into account the
limited number of facsimile machines then available throughout the
Agency. Thus, the rule permitted facsimile transmissions of requests
for extensions of time, prohibited facsimile transmissions of most
other formal documents, and permitted facsimile transmissions of all
other documents subject to advance approval, in each instance, by the
receiving office. At that time, the Board contemplated that the subject
of facsimile transmissions would be revisited periodically and
reevaluated based on experience, technological improvements, and
current costs.
Having had several years of experience under this rule, the Board
now has determined that it would be appropriate to permit unfair labor
practice charges, petitions in representation proceedings, and
objections to elections to be filed by facsimile transmission. These
documents tend to be short, usually only one or a few pages in length,
so their permitted transmission would not interfere with the Agency's
use of its machines for its own purposes. Moreover, filing of unfair
labor practice charges sometimes is time-sensitive, particularly in
statutory priority cases since a Region needs to have a charge before
it can begin its investigation. Modifying the rules to permit these
three types of documents to be filed by facsimile transmission will
have the salutary effect of according parties faster means of access to
the Board's processes.
Additionally, the Board recently has been studying means by which
it can reduce the cost of the services it renders without reducing the
quality of those services. One means of accomplishing this objective is
to utilize regular mail, rather than certified or registered mail, in
appropriate circumstances. Sending a piece of correspondence by
certified mail costs $1.00 in addition to the regular first class
postage. The U.S. Postal Service charges $1.10 for a return receipt in
addition to the certified and first class postage costs. In Fiscal Year
1992 the Agency spent approximately $321,304 for the use of certified
mail, of which approximately $145,546 was attributable to return
receipt expenses. In an era of diminishing resources, a reduction in
these costs was quickly identified as a goal to be pursued.
The National Labor Relations Act, 29 U.S.C. 161(4), provides that:
Complaints, orders and other process and papers of the Board,
its member, agent, or agency, may be served either personally or by
registered or certified mail or by telegraph or by leaving a copy
thereof at the principal office or place of business of the person
required to be served.
This section of the Act never has been understood to require that
every piece of paper that the Board issues be served by one of these
methods. Nevertheless, under the Board's present rules certain
documents, such as unfair labor practice charges, traditionally have
been served by certified mail even though the statute does not require
it. The new rules change this by more clearly delineating the
circumstances under which various formal or informal methods of service
are to be utilized.
In drawing distinctions between the types of documents required to
be served by the formal methods required by the statute and documents
that may be served by less formal methods, the Board has been guided by
the dictates of due process. Accordingly, the rules will continue to
require use of the statutorily prescribed methods to serve: complaints
and accompanying notices of hearing, compliance specifications, and
amendments to either complaints or to compliance specifications, upon
all parties (Sec. 102.113(a)); final orders of the Board in unfair
labor practice cases, and administrative law judges' decisions, upon
all parties (Sec. 102.113(b)); and subpoenas upon the recipient
(Sec. 102.113(c)). All other documents, including unfair labor practice
charges (see Sec. 102.14), may be served by other methods, including
regular mail (Sec. 102.113(d)).
Finally, during the course of preparing the foregoing revisions,
the Board identified several other areas in which the filing and
service requirements should be updated. These are discussed under the
specific sections in which the changes are included.
Section 102.14, dealing with service of unfair labor practice
charges, is being divided into three subsections. New Sec. 102.14(a)
continues, without change, the requirement that it is the
responsibility of the charging party to timely serve a copy of the
charge upon the person against whom the charge is made. To this
provision is added a sentence detailing the means by which a charge can
be served. This provision, formerly contained in Sec. 102.114(a), is
moved here in an effort to keep provisions relating to the service of
charges in a single section. At the same time, the means by which a
charge may be served are expanded to include regular mail and, with the
permission of the charged party, facsimile transmission or any other
means.
New Sec. 102.14(b) is taken from the second sentence in former
Sec. 102.14. That provision is modified to make perfectly clear that
service of a copy of the unfair labor practice charge by the Regional
Director is a matter of courtesy, rather than of right, and to add a
provision allowing the Regional Director to serve this copy of the
charge by facsimile transmission.
New Sec. 102.14(c) incorporates provisions from Sec. 102.112 with
respect to the date of service of a document. Like the new
Sec. 102.112, this provision addresses the use of private delivery
[[Page 56234]]
services or facsimile transmission, as well as personal service or
service by mail.
Section 102.112, dealing with dates of service and dates of filing,
is modified to include references to service by private delivery
service or facsimile transmission. When documents are served by private
delivery service the date of service is, like with the use of United
States mail, the date of deposit with the delivery service. When
service is by facsimile transmission, the date of service is the date
on which the transmission is received.
Section 102.113 is modified in several respects. Former
Sec. 102.113(a) is divided into five parts, renumbered as
Secs. 102.113(a) through 102.113(e). The new Secs. 102.113(a) through
102.113(d) demarcate the situations in which service is or is not
required to be made by registered or certified mail, telegraph, or
personal service. While the former Sec. 102.113(a) set forth the means
by which the Agency would serve unfair labor practice charges, that
provision now has been moved to Sec. 102.14, where other provisions
relating to service of unfair labor practice charges were and still are
contained. Further, as noted above, that provision is modified so that
unfair labor practice charges may be served by various means, including
regular mail.
The new Sec. 102.113(e) carries forward provisions formerly
contained in Sec. 102.113(a) relating to methods for proving service.
In addition, this new subsection now makes clear that these methods are
not exclusive, and that ``any sufficient proof may be relied upon to
establish service.''
The new Sec. 102.113(f) carries forward the provisions of former
Sec. 102.113(b) regarding service by the Agency upon the attorneys or
other representatives of a party. The language is revised to make clear
that service by the Board on such attorneys or other representatives
``may be accomplished by any means of service permitted by these rules,
including regular mail.''
Section 102.114 is modified in several respects. Subsection
102.114(a) is modified to delete the provision for other means of
service provided for ``in a civil action by the law of the State . .
.'' In its place, the new rule provides for service by regular mail or
private delivery service and, with the permission of the person
receiving the service, any other means including facsimile
transmission. With regard to the methods of service when filing is done
by hand, the new rule omits the provision that service be by mail or
telegraph and substitutes a requirement that service be by a means that
would ensure receipt by the next business day. Finally, the new rule
makes clear that once a complaint issues the General Counsel, as a
party to the proceeding, is subject to the same service requirements as
any other party, except to the extent that Secs. 102.113(a) and
102.113(c) provide otherwise. As noted under the discussion of
Sec. 102.113, above, the Agency is required, in certain circumstances,
to utilize more formal means of service than is permitted for other
parties.
The new Sec. 102.114(b) carries forward provisions from the former
Sec. 102.114(a) with respect to means for proving service, modified in
light of changes in the methods of service that are permitted under the
new rules. In addition, this new subsection now makes clear that these
methods are not exclusive, and that ``any sufficient proof may be
relied upon to establish service.''
The new Sec. 102.114(c) was formerly part of Sec. 102.114(a). It is
now moved to its own subsection, but without any substantive changes.
Former Secs. 102.114(b) and 102.114(c) are renumbered to become new
Secs. 102.114(d) and 102.114(e), respectively. They are not changed in
any other respect.
Former Sec. 102.114(d) is renumbered to become new Sec. 102.114(f).
This subsection is amended to provide that unfair labor practice
charges, petitions in representation cases, and objections to elections
may be filed by facsimile transmission as a matter of right. Formerly,
facsimile filings of these documents were prohibited. The section
further provides that filing of these documents by facsimile is
effective on the date of receipt by the agency. Finally, a provision is
added admonishing persons attempting to file by facsimile transmission
that a ``failure to timely file or serve a document will not be excused
on the basis of a claim that transmission could not be accomplished
because the receiving machine was off-line or busy or unavailable for
any other reason.''
Former Sec. 102.114(e) is renumbered to become new Sec. 102.114(g).
This subsection is amended to delete the current prohibition on filing
unfair labor practice charges, representation petitions, or objections
to elections by facsimile transmission.
Former Sec. 102.114(f) is renumbered to become new Sec. 102.114(h).
This subsection is amended to conform to the new provisions in
Sec. 102.114(a) under which parties may, under certain circumstances,
refuse to accept facsimile transmissions.
Further changes related to the filing by facsimile of charges,
representation petitions, and election objections are being made to
Secs. 102.11, 102.60, and 102.69. These sections currently require that
unfair labor practice charges, representation petitions, and election
objections, respectively, must be in writing and signed, and that an
original and four copies be filed (five copies in the case of election
objections under Sec. 102.69). These sections are being modified so
that when someone files an unfair labor practice charge, a
representation petition, or election objections by facsimile
transmission, they ``shall also file an original for the Agency's
records, but failure to do so shall not affect the validity of the
filing by facsimile, if otherwise proper.'' The extra copies, still
required when filing is accomplished by other means, need not be filed
when filing is by facsimile transmission. Sections 102.11 and 102.60
also are being amended to delete the general reference to declarations
made ``under the penalties of the Criminal Code,'' and to substitute
therefor a specific reference to declarations pursuant to 28 U.S.C.
1746.
Pursuant to section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), the NLRB certifies that this rule will not have a
significant impact on a substantial number of small businesses.
List of Subjects in 29 CFR Part 102
Administrative practice and procedure, Labor management relations.
Accordingly, 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: Sec. 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 102.11 is revised to read as follows:
Sec. 102.11 Forms; jurat; or declaration.
Such charges shall be in writing and signed, and either shall be
sworn to before a notary public, Board agent, or other person duly
authorized by law to administer oaths and take acknowledgments or shall
contain a declaration by the person signing it, under the penalty of
perjury that its contents are true and correct (see 28
[[Page 56235]]
U.S.C. 1746). An original and four copies of such charge shall be filed
together with one copy for each additional charged party named. A party
filing a charge by facsimile pursuant to Sec. 102.114(f) shall also
file an original for the Agency's records, but failure to do so shall
not affect the validity of the filing by facsimile, if otherwise
proper. In addition, extra copies need not be filed if the filing is by
facsimile pursuant to Sec. 102.114(f).
3. Section 102.14 is revised to read as follows:
Sec. 102.14 Service of charge.
(a) Charging party's obligation to serve; methods of service. Upon
the filing of a charge, the charging party shall be responsible for the
timely and proper service of a copy thereof upon the person against
whom such charge is made. Service may be made personally, or by
registered mail, certified mail, regular mail, or private delivery
service. With the permission of the person receiving the charge,
service may be made by facsimile transmission or by any other agreed-
upon method.
(b) Service as courtesy by Regional Director. The Regional Director
will, as a matter of courtesy, cause a copy of such charge to be served
by regular mail on the person against whom the charge is made. Such
charges may, with the permission of the person receiving the charge, be
served by the Regional Director by facsimile transmission. In this
event the receipt printed upon the Agency's copy by the Agency's own
facsimile machine, showing the phone number to which the charge was
transmitted and the date and time of receipt shall be proof of service
of the same. However, whether serving by facsimile, by regular mail, or
otherwise, the Regional Director shall not be deemed to assume
responsibility for such service.
(c) Date of service of charge. In the case of service of a charge
by mail or private delivery service, the date of service is the date of
deposit with the post office or other carrier. In the case of service
by other methods, including hand delivery or facsimile transmission,
the date of service is the date of receipt.
4. In Sec. 102.60, paragraph (a) is revised to read as follows:
Sec. 102.60 Petitions.
(a) Petition for certification or decertification; who may file;
where to file; withdrawal. A petition for investigation of a question
concerning representation of employees under paragraphs (1)(A)(i) and
(1)(B) of section 9(c) of the Act (hereinafter called a petition for
certification) may be filed by an employee or group of employees or any
individual or labor organization acting in their behalf or by an
employer. A petition under paragraph (1)(A)(ii) of section 9(c) of the
Act, alleging that the individual or labor organization which has been
certified or is being currently recognized as the bargaining
representative is no longer such representative (hereinafter called a
petition for decertification), may be filed by any employee or group of
employees or any individual or labor organization acting in their
behalf. Petitions under this section shall be in writing and signed,
and either shall be sworn to before a notary public, Board agent, or
other person duly authorized by law to administer oaths and take
acknowledgments or shall contain a declaration by the person signing
it, under the penalty of perjury, that its contents are true and
correct (see 28 U.S.C. 1746). An original and four copies of the
petition shall be filed. A person filing a petition by facsimile
pursuant to Sec. 102.114(f) shall also file an original for the
Agency's records, but failure to do so shall not affect the validity of
the filing by facsimile, if otherwise proper. In addition, extra copies
need not be filed if the filing is by facsimile pursuant to
Sec. 102.114(f). Except as provided in Sec. 102.72, such petitions
shall be filed with the Regional Director for the Region wherein the
bargaining unit exists, or, if the bargaining unit exists in two or
more Regions, with the Regional Director for any of such Regions. Prior
to the transfer of the case to the Board, pursuant to Sec. 102.67, the
petition may be withdrawn only with the consent of the Regional
Director with whom such petition was filed. After the transfer of the
case to the Board, the petition may be withdrawn only with the consent
of the Board. Whenever the Regional Director or the Board, as the case
may be, approves the withdrawal of any petition, the case shall be
closed.
* * * * *
5. In Sec. 102.69, paragraph (a) is revised to read as follows:
Sec. 102.69 Election procedure; tally of ballots; objections;
certification by the regional director; report on challenged ballots;
report on objections; exceptions; action of the Board; hearing.
(a) Unless otherwise directed by the Board, all elections shall be
conducted under the supervision of the Regional Director in whose
Region the proceeding is pending. All elections shall be by secret
ballot. Whenever two or more labor organizations are included as
choices in an election, either participant may, upon its prompt request
to and approval thereof by the Regional Director, whose decision shall
be final, have its name removed from the ballot: Provided, however,
That in a proceeding involving an employer-filed petition or a petition
for decertification the labor organization certified, currently
recognized, or found to be seeking recognition may not have its name
removed from the ballot without giving timely notice in writing to all
parties and the Regional Director, disclaiming any representation
interest among the employees in the unit. Any party may be represented
by observers of its own selection, subject to such limitations as the
Regional Director may prescribe. Any party and Board agents may
challenge, for good cause, the eligibility of any person to participate
in the election. The ballots of such challenged persons shall be
impounded. Upon the conclusion of the election the ballots will be
counted and a tally of ballots prepared and immediately made available
to the parties. Within 7 days after the tally of ballots has been
prepared, any party may file with the Regional Director an original and
five copies of objections to the conduct of the election or to conduct
affecting the results of the election, which shall contain a short
statement of the reasons therefor. Such filing must be timely whether
or not the challenged ballots are sufficient in number to affect the
results of the election. A person filing objections by facsimile
pursuant to Sec. 102.114(f) shall also file an original for the
Agency's records, but failure to do so shall not affect the validity of
the filing by facsimile, if otherwise proper. In addition, extra copies
need not be filed if the filing is by facsimile pursuant to
Sec. 102.114(f). The Regional Director will cause a copy of the
objections to be served on each of the other parties to the proceeding.
Within 7 days after the filing of objections, or such additional time
as the Regional Director may allow, the party filing objections shall
furnish to the Regional Director the evidence available to it to
support the objections.
* * * * *
6. Section 102.112 is revised to read as follows:
Sec. 102.112 Date of service; date of filing.
The date of service shall be the day when the matter served is
deposited in the United States mail, or is deposited with a private
delivery service that will provide a record showing the date the
document was tendered to the delivery service, or is delivered in
person, as the case may be. Where service is made by facsimile
transmission, the date of service shall be the date on which
[[Page 56236]]
transmission is received. The date of filing shall be the day when the
matter is required to be received by the Board as provided by
Sec. 102.111.
7. Section 102.113 is revised to read as follows:
Sec. 102.113 Methods of service of process and papers by the Agency;
proof of service.
(a) Service of complaints and compliance specifications. Complaints
and accompanying notices of hearing, compliance specifications, and
amendments to either complaints or to compliance specifications, shall
be served upon all parties either personally or by registered or
certified mail or by telegraph, or by leaving a copy thereof at the
principal office or place of business of the person required to be
served.
(b) Service of final orders and decisions. Final orders of the
Board in unfair labor practice cases and administrative law judges'
decisions shall be served upon all parties either personally or by
registered or certified mail or by telegraph, or by leaving a copy
thereof at the principal office or place of business of the person
required to be served.
(c) Service of subpoenas. Subpoenas shall be served upon the
recipient either personally or by registered or certified mail or by
telegraph, or by leaving a copy thereof at the principal office or
place of business of the person required to be served.
(d) Service of other documents. Other documents may be served by
the Agency by any of the foregoing methods as well as regular mail or
private delivery service. Such other documents may be served by
facsimile transmission with the permission of the person receiving the
document.
(e) Proof of service. In the case of personal service, or delivery
to a principal office or place of business, the verified return by the
individual so serving the same, setting forth the manner of such
service, shall be proof of the same. In the case of service by mail or
telegraph, the return post office receipt or telegraph receipt therefor
when registered or certified and mailed or when telegraphed shall be
proof of service of the same. However, these methods of proof of
service are not exclusive; any sufficient proof may be relied upon to
establish service.
(f) Service upon representatives of parties. Whenever these rules
require or permit the service of pleadings or other papers upon a
party, a copy shall also be served on any attorney or other
representative of the party who has entered a written appearance in the
proceeding on behalf of the party. If a party is represented by more
than one attorney or representative, service upon any one of such
persons in addition to the party shall satisfy this requirement.
Service by the Board or its agents of any documents upon any such
attorney or other representative may be accomplished by any means of
service permitted by these rules, including regular mail.
8. Section 102.114 is revised to read as follows:
Sec. 102.114 Filing and service of papers by parties; form of papers;
manner and proof of filing or service.
(a) Service of papers by a party on other parties may be made
personally, or by registered mail, certified mail, regular mail, or
private delivery service. Service of papers by a party on other parties
by any other means, including facsimile transmission, is permitted only
with the consent of the party being served. Unless otherwise specified
elsewhere in these rules, service on all parties shall be made in the
same manner as that utilized in filing the paper with the Board, or in
a more expeditious manner; however, when filing with the Board is done
by hand, the other parties shall be promptly notified of such action by
telephone, followed by service of a copy in a manner designed to insure
receipt by them by the close of the next business day. The provisions
of this section apply to the General Counsel after a complaint has
issued, just as they do to any other party, except to the extent that
the provisions of Secs. 102.113(a) or 102.113(c) provide otherwise.
(b) When service is made by registered mail, or by certified mail,
the return post office receipt shall be proof of service. When service
is made by a private delivery service, the receipt from that service
showing delivery shall be proof of service. However, these methods of
proof of service are not exclusive; any sufficient proof may be relied
upon to establish service.
(c) Failure to comply with the requirements of this section
relating to timeliness of service on other parties shall be a basis for
either:
(1) A rejection of the document; or
(2) Withholding or reconsidering any ruling on the subject matter
raised by the document until after service has been made and the served
party has had reasonable opportunity to respond.
(d) Papers filed with the Board, General Counsel, Regional
Director, Administrative Law Judge, or Hearing Officer shall be
typewritten or otherwise legibly duplicated on 8\1/2\ by 11-inch plain
white paper, shall have margins no less than one inch on each side,
shall be in a typeface no smaller than 12 characters-per-inch (elite or
the equivalent), and shall be double spaced (except that quotations and
footnotes may be single spaced). Carbon copies shall not be filed and
will not be accepted. Nonconforming papers may, at the Agency's
discretion, be rejected.
(e) The person or party serving the papers or process on other
parties in conformance with Sec. 102.113 and paragraph (a) of this
section shall submit a written statement of service thereof to the
Board stating the names of the parties served and the date and manner
of service. Proof of service as defined in paragraph (a) of this
section shall be required by the Board only if subsequent to the
receipt of the statement of service a question is raised with respect
to proper service. Failure to make proof of service does not affect the
validity of the service.
(f) Unfair labor practice charges, petitions in representation
proceedings, objections to elections, and requests for extensions of
time for filing documents will be accepted by the Agency if transmitted
to the facsimile machine of the appropriate office. Other documents,
except those specifically prohibited in paragraph (g) of this section,
will be accepted by the Agency if transmitted to the facsimile machine
of the office designated to receive them only with advance permission
from the receiving office which may be obtained by telephone. Advance
permission must be obtained for each such filing. At the discretion of
the receiving office, the person submitting a document by facsimile may
be required simultaneously to serve the original and any required
copies on the office by overnight delivery service. When filing a
charge, a petition in a representation proceeding, or election
objections by facsimile transmission pursuant to this section, receipt
of the transmitted document by the Agency constitutes filing with the
Agency. A failure to timely file or serve a document will not be
excused on the basis of a claim that transmission could not be
accomplished because the receiving machine was off-line or busy or
unavailable for any other reason.
(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
[[Page 56237]]
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.
(h) Documents and other papers filed through facsimile transmission
shall be served on all parties in the same way as used to serve the
office where filed, or in a more expeditious manner, in conformance
with paragraph (a) of this section. Thus, facsimile transmission shall
be used for this purpose whenever possible. When a party cannot be
served by this method, or chooses not to accept service by facsimile as
provided for in paragraph (a) of this section, the party shall be
notified personally or by telephone of the substance of the transmitted
document and a copy of the document shall be served by personal service
or overnight delivery service.
Dated, Washington, DC, November 2, 1995.
By direction of the Board.
John J. Toner,
Acting Executive Secretary, National Labor Relations Board.
[FR Doc. 95-27627 Filed 11-7-95; 8:45 am]
BILLING CODE 7545-01-P
