[Federal Register Volume 61, Number 239 (Wednesday, December 11, 1996)]
[Rules and Regulations]
[Pages 65180-65182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31457]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Part 101 and 102
Procedures and Rules Governing Summary Judgment Motions and
Advisory Opinions
AGENCY: National Labor Relations Board.
ACTION: Final rule.
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SUMMARY: The National Labor Relations Board (NLRB) issues a final rule
implementing the proposal set forth in its July 5, 1996 Notice of
Proposed Rulemaking (NPR) to eliminate provisions in its current rules
permitting parties to pending state proceedings to petition for an
advisory opinion on whether the Board would assert jurisdiction under
its commerce standards. The final rule does not implement the other
proposal set forth in the Board's NPR which would have also eliminated
provisions in the current rules requiring issuance of a notice to show
cause before the Board grants a motion for summary judgment. The Board
has decided to withdraw that proposal for further study in light of the
comments and other actions recently taken by the Board to streamline
the summary judgment process.
EFFECTIVE DATE: January 10, 1997.
FOR FURTHER INFORMATION CONTACT: John J. Toner, Executive Secretary,
National Labor Relations Board, 1099 14th Street, NW., Room 11600,
Washington, DC 20570. Telephone: (202) 273-1940.
SUPPLEMENTARY INFORMATION: As part of the Agency's ongoing efforts to
streamline its operations, on July 5, 1996, the Board issued a Notice
of Proposed Rulemaking (NPR) proposing certain changes to its rules and
statements of procedure regarding motions for summary judgment and
petitions for advisory opinions (61 FR 35172). Specifically, the Board
proposed: (1) To eliminate provisions in the current rules and
statements of procedure permitting parties to pending state proceedings
to petition the Board for an advisory opinion on whether the Board
would assert jurisdiction under its commerce standards; and (2) to also
eliminate provisions in the current rules requiring the Board to issue
a notice to show cause before granting a motion for summary judgment.
Four comments were received in response to the NPR, three from
practitioners (Robert J. Janowitz, Kansas City, Missouri; Ira Drogin,
New York, New York; and Rayford T. Blankenship, Greenwood, Indiana) and
one from a
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labor organization (AFL-CIO).\1\ Each of these comments are addressed
below.
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\1\ The AFL-CIO's comments were submitted by its General
Counsel, Jonathan P. Hiatt.
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I. Eliminating Party Petitions for Advisory Opinions
Only two of the four comments addressed this proposal. Attorney
Robert Janowitz stated that he opposed the proposal on the grounds that
the proposal would deny parties an avenue of access to the Board; the
current procedure does not substantially burden the Board since only
10-15 petitions for advisory opinion are filed by parties each year;
and eliminating the procedure will increase the risk that state
agencies will improperly assert jurisdiction, which will require the
Board to engage in lengthy, expensive and time-consuming litigation
under NLRB v. Nash-Finch Co., 404 U.S. 138 (1971), to enjoin the state
agency's improper actions.
Attorney Ira Drogin also opposed the proposal. He stated that most
of the 10-15 petitions each year appear to be filed by parties before
the New York State Employment Relations Board (NYSERB); the NYSERB is
understaffed and moves extremely slowly; the current procedure
permitting parties to seek an advisory opinion from the Board works
well and is expeditious; and this procedure cannot be costly to the
Board given the low number of petitions that are filed.
Although we have carefully considered the foregoing comments, we
have decided to implement this proposal as set forth in the NPR. As
indicated in the NPR, there is no statutory requirement that the Board
entertain party petitions for advisory opinions, and the procedure is
not widely utilized. Indeed, as indicated in the comments submitted by
attorney Drogin, virtually all of the 10-15 petitions received each
year are filed by parties to proceedings before the NYSERB.\2\ Further,
such petitions typically raise issues which have been repeatedly
addressed in numerous other published advisory opinions and decisions
issued by the Board. Indeed, almost two-thirds of the 22 advisory
opinions issued over the last two years addressed essentially the same
issue: the Board's jurisdictional standard for building management
companies.\3\ In short, under the current procedure, the Board has been
unnecessarily forced to issue repeated advisory opinions on the same
jurisdictional issue with respect to parties before the same state
board. In our view, this is clearly not an efficient use of the Board's
limited resources.\4\
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\2\ Ten of the 12 advisory opinions issued by the Board in
fiscal year 1995, and all of the 10 opinions issued in fiscal year
1996, involved parties before the NYSERB.
\3\ See, e.g., 209 Hull Realty Corp., 322 NLRB No. 43 (Sept. 30,
1996); MCS Equities, Inc., 321 NLRB No. 78 (June 20, 1996); Center
County Corp., 320 NLRB No. 114 (March 20, 1996); Phipps Houses
Services, Inc., et al., 320 NLRB No. 74 (Feb. 28, 1996); and
Valentine Properties et al., 319 NLRB N. 5 (Sept. 19, 1995).
\4\ Given that only two comments were filed opposing the Board's
proposal to eliminate such petitions, it would not appear that the
majority of practitioners and the public disagree with this view.
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Further, as indicated in the NPR, there are several other, often
more expeditious, avenues for obtaining a jurisdictional determination
or opinion. As noted in the NPR, Sec. 101.41 of the Board's Statements
of Procedure provides that persons may seek informal opinions on
jurisdictional issues from the Regional Offices. And the Regional
Office will also make a jurisdictional determination early in its
investigation of any representation petition or unfair labor practice
charges filed with that office. See NLRB Casehandling Manual, Sec.
11706.
Moreover, as indicated in the NPR, the instant changes do not
affect the provisions of current Secs. 102.98(b) and 102.99(b) of the
Board's rules and Sec. 101.39 of the Board's statements of procedure
which permit the state or territorial agency or court itself to file a
petition for an advisory opinion on whether the Board would decline to
assert jurisdiction based either on its commerce standards or because
the employer is not within the jurisdiction of the Act. The provisions
permitting such petitions are retained, with minor modification to
Sec. 101.39 of the Board's statements of procedure to conform it with
Board decisions indicating that the Board will not issue an opinion
unless the relevant facts are undisputed or the state agency or court
has already made the relevant factual findings. See Correctional
Medical Systems, 299 NLRB 654 (1990); University of Vermont, 297 NLRB
291 (1989); and St. Paul Ramsey Medical Center, 291 NLRB 755 (1988).
See also Brooklyn Bureau of Community Service, 320 NLRB No. 157 (April
15, 1996).
Given the foregoing alternative procedures, we do not believe, as
suggested by attorney Janowitz, that eliminating party petitions for
advisory opinion will substantially increase the risk that state
agencies will improperly assert jurisdiction. We believe it reasonable
to presume that state agencies will act properly, and the alternative
procedures outlined above will ensure that they have access to
sufficient information to do so in those circumstances where there is a
genuine and substantial question as to which agency has jurisdiction
and past published Board opinions or decisions do not provide a
definitive answer.
II. Eliminating Notice-to-Show-Cause Requirement in Summary
Judgment Cases
Three of the four comments addressed this proposal. Attorney
Janowitz stated that he had no objection to the proposal, but argued
that the rule should make clear that the General Counsel is required to
postpone the hearing at the time he files a motion for summary judgment
with the Board. Management representative Rayford Blankenship, on the
other hand, opposed the proposal, stating that he believed elimination
of the notice- to-show-cause procedure would ``add [] to the propensity
of the NLRB to further abuse respondent[s] by arbitrary and capricious
actions.''
Finally, the AFL-CIO also opposed the proposal, but on the opposite
ground, i.e. on the ground that the proposed change would greatly
increase the burden on parties opposing respondent summary judgment
motions. The AFL-CIO argued that under the proposed change the General
Counsel and charging party will be forced to file a comprehensive
response to such motions in their initial oppositions and will not have
the opportunity provided under the current rule to file a further
opposition brief in the event the Board decides the motion warrants
full consideration and issues a notice to show cause. The AFL-CIO
argued that this will give respondents a significant incentive to file
summary judgment motions for discovery purposes, which will inevitably
result in a sharp rise in the number of respondent motions, thereby
increasing the workload not only of the General Counsel, who will be
forced to file comprehensive responses to every motion, but also of the
Board, which will have to decide the motions. Finally, the AFL-CIO
argued that the proposal will also burden the Regions and
administrative law judges with the responsibility of postponing the
hearing, one of the traditional functions of the notice to show cause.
Having carefully considered the foregoing comments, we have decided
not to implement this proposal at this time. We do not necessarily
agree with either management representative Blankenship or the AFL-CIO
that the proposal would unfairly prejudice either respondents or the
General Counsel. However, we are concerned about the AFL-CIO's
additional assertions that the proposal would result in more motions
for summary
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judgment being filed by respondents, thereby placing greater burdens on
both the Board and the General Counsel, and that the proposal would
also place greater burdens on the Regions and Judges Division with
respect to postponement of the hearing. As indicated above and in the
NPR, the purpose of the proposal was to expedite the summary judgment
process and reduce the administrative burden on the Board and its staff
which is responsible for preparing and issuing such notices. If the
AFL-CIO's predictions are correct, however, and we cannot say that they
are unfounded, the proposal would actually increase the burdens not
only on the Board, but also on the Regions and the Judges Division.
Given the Agency's reduced budget and staffing, we believe it would
therefore be prudent for the Board to study further the issue before
implementing the proposed change. It may be that there are other
alternatives available to the Board which could significantly reduce
the current burdens associated with issuing such notices. One such
alternative, simplifying or streamlining the notice itself by reducing
its length and eliminating unnecessary text, has recently been
implemented based on the recommendation of Agency staff. Other
alternatives will continue to be studied as part of the Agency's
ongoing streamlining efforts.
As indicated in the NPR, although the Agency decided to give notice
of proposed rulemaking with respect to the proposed rule changes, the
changes involve rules of agency organization, procedure or practice and
thus no notice of proposed rulemaking was required under section 553 of
the Administrative Procedure Act (5 U.S.C. 553). Accordingly, the
Regulatory Flexibility Act (5 U.S.C. 602 et seq.), does not apply to
these rule changes.
List of Subjects in 29 CFR Parts 101 and 102
Administrative practice and procedure, Labor management relations.
For the reasons set forth above, 29 CFR parts 101 and 102 are
amended as follows:
PART 101--STATEMENTS OF PROCEDURE
1. The authority citation for 29 CFR part 101 continues to read as
follows:
Authority: Sec. 6 of the National Labor Relations Act, as
amended (29 U.S.C. 151, 156), and sec. 522(a) of the Administrative
Procedure Act (5 U.S.C. 552(a)). Section 101.14 also issued under
sec. 2112(a)(1) of Pub. L. 100-236, 28 U.S.C. 2112(a)(1).
2. Section 101.39 is revised to read as follows:
Sec. 101.39 Initiation of advisory opinion case.
The question of whether the Board will assert jurisdiction over a
labor dispute which is the subject of a proceeding in an agency or
court of a State or territory is initiated by the filing of a petition
with the Board. This petition may be filed only if:
(1) a proceeding is currently pending before such agency or court;
(2) the petitioner is the agency or court itself; and
(3) the relevant facts are undisputed or the agency or court has
already made the relevant factual findings.
(b) The petition must be in writing and signed. It is filed with
the Executive Secretary of the Board in Washington, DC. No particular
form is required, but the petition must be properly captioned and must
contain the allegations required by section 102.99 of the Board's Rules
and Regulations. None of the information sought may relate to the
merits of the dispute. The petition may be withdrawn at any time before
the Board issues its advisory opinion determining whether it would or
would not assert jurisdiction on the basis of the facts before it.
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)), and section 552a (j) and (k) of the Privacy Act (5
U.S.C. 552a (j) and (k). 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)).
Sec. 102.98 [Amended]
2. Section 102.98, paragraph (a) and the paragraph designation (b)
are removed.
Sec. 102.99 [Amended]
3. In Sec. 102.99, paragraph (a) is removed and paragraphs (b) and
(c) are redesignated paragraphs (a) and (b) respectively.
Dated: Washington, DC, December 6, 1996.
By direction of the Board.
John J. Toner,
Executive Secretary.
[FR Doc. 96-31457 Filed 12-10-96; 8:45 am]
BILLING CODE 7545-01-P
