[Federal Register Volume 60, Number 231 (Friday, December 1, 1995)]
[Proposed Rules]
[Pages 61679-61681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29297]
=======================================================================
-----------------------------------------------------------------------
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: Proposed permanent modification of rules upon expiration of
one-year experiment.
-----------------------------------------------------------------------
SUMMARY: The National Labor Relations Board (NLRB) issues a document
proposing to make permanent, following expiration of the one-year
experimental period on January 31, 1996, the 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.
DATES: Comments must be received on or before December 29, 1995.
ADDRESSES: Comments should be sent to: Office of the Executive
Secretary, National Labor Relations Board, 1099 14th Street NW., Room
11600, Washington, D.C. 20570. Telephone: (202) 273-1940.
FOR FURTHER INFORMATION CONTACT: John J. Toner, Acting Executive
Secretary, 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.
Thereafter, 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.
---------------------------------------------------------------------------
Recently, on November 6 and 8, 1995, the Board met with the
Management and Union-side Panels of the NLRB Advisory Committee on
Agency Procedure to discuss, among other matters, the experience to
date with the experimental modifications and whether the modifications
should be extended or made permanent following expiration of the one-
year experimental period.\2\ The following is a summary of the
information that the Board provided to the members of the Advisory
Committee Panels on this question.
\2\ A notice of these meetings was issued on October 19, 1995,
advising the public of the agenda and of the right to attend and
file written comments on the matters discussed within 30 days
thereafter (60 FR 54090). To date, no written public comments have
been received.
---------------------------------------------------------------------------
Settlement Judges
Since February 1, 1995, settlement judges have been assigned in 55
cases. There have been settlements in 35 of the cases. Eighteen cases
did not settle and went to trial. Settlement is still possible in some
of the remaining cases. Some of the cases which settled did so after a
trial judge was assigned and occurred either after conference calls
conducted by the trial judge or at the hearing site. Twenty seven, or
just about half of the cases in which settlement judges were assigned,
were Region 4 (Philadelphia) cases in which the region played an active
role in setting up settlement conferences. In about half a dozen other
cases appointment of a settlement judge was requested by the General
Counsel or a party. In the remaining 22 cases, settlement judges were
assigned at the initiative of the Division of Judges. The Division of
Judges has suggested appointment of settlement judges in other cases,
but not all the parties have agreed. At the end of August 1995, there
were a total of 577 settlements by ALJs compared to 544 at the end of
August 1994. The difference is almost the same as the number of cases
in which settlement judges were assigned and settlements were reached.
Bench Decisions
Ten bench decision have issued since February 1, 1995 (out of
approximately 400 total ALJ decisions). Several of the bench decisions
turned on simple credibility determinations. None of the cases involved
complex legal issues. The average transcript length was 144 pages; the
median length was slightly higher. All of the cases took less than one
day. In six of the 10 cases, no exceptions were filed to the ALJ's
bench decision, and the Board therefore adopted the ALJ's decision in
the absence of exceptions. Of the four other bench-decision cases, the
Board short-form adopted the ALJ's decision in three of the cases,\3\
and the other case is still pending before the Board on exceptions.
\3\ Sylvan Industrial Piping, Inc., 317 NLRB 772 (1995); The
Riverboat Hotel, 319 NLRB No. 30 (Sept. 29, 1995); and Kinco, Ltd.,
319 NLRB No. 56 (Oct. 23, 1995) (Member Cohen dissenting in part).
---------------------------------------------------------------------------
The response of both the Management and the Union-side Panel of the
Advisory Committee generally favored a continuation of the
modifications, with the exception of the modification authorizing bench
decisions, which received a mixed response from the Management-side
Panel. The response of the Management-side Panel of the Advisory
Committee generally favored a continuation of the modification
authorizing the use of settlement judges. Several members of the Panel
stated that they favored extending the settlement judge procedure,
provided that the use of settlement judges continued to be consensual
as currently provided. One member, however, stated the view that the
emphasis with respect to settlement should be on the trial judges
themselves and the Regional Office staff rather than on settlement
judges. With respect to bench decisions, one member of the Management-
side Panel stated the view that this procedure should also be extended
and used in more cases. However, two other members expressed concern
about the lack of discovery and the absence of an opportunity to file a
brief.
The Union-side Panel also generally favored continuation of the
settlement judge procedure. The Panel emphasized, however, that the
settlement judge should not have the authority to postpone the trial
date. Further, the Panel indicated that it was not necessarily opposed
to eliminating the requirement that all parties agree to the use of a
settlement judge or mandating that parties appear at an initial
settlement conference. Finally, the
[[Page 61680]]
Panel indicated support for continuing the bench decision procedure and
encouraging its greater use.
Having reviewed the experience to date with the modifications and
the views of the Advisory Committee, the Board is proposing to extend
the modifications in their current form by making them permanent
following the expiration of the one-year experimental period on January
31, 1996. The modifications are set forth below without change. The
Board is providing a period for public comment on this proposal.
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.
For the reasons set forth above, the NLRB proposes to permanently
amend 29 CFR Part 102 as follows upon expiration of the one-year
experimental period on January 31, 1996:
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 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
Section 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
[[Page 61681]]
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.
* * * * *
Dated, Washington, D.C., November 27, 1995.
By direction of the Board:
John J. Toner,
Acting Executive Secretary.
[FR Doc. 95-29297 Filed 11-30-95; 8:45 am]
BILLING CODE 7545-01-P
