[Federal Register Volume 59, Number 245 (Thursday, December 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31486]
[[Page Unknown]]
[Federal Register: December 22, 1994]
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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: Experimental modification of rules.
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summary: The National Labor Relations Board (NLRB) issues a document
that it will begin a one-year experimental modification of its rules
with respect to the role that its Administrative Law Judges (ALJs) play
in facilitating the expeditious resolution of unfair labor practice
proceedings. During the experimental period, the NLRB will amend its
rules to give the Chief Administrative Law Judge discretion to assign a
judge other than the trial judge to conduct settlement negotiations
with the parties, and to give the settlement judge certain powers
necessary to engage effectively in those settlement efforts. The NLRB
will also, during the experimental period, modify its rules to give
ALJs assigned to hear a case the discretion to dispense with briefs, to
hear oral argument in lieu of briefs, and to issue bench decisions. The
rule changes will expire at the end of the one-year experimental period
absent renewal by the Board.
effective dates: February 1, 1995 through January 31, 1996. The rule
changes will be effective on February 1, 1995 and apply to all unfair
labor practice cases pending on or after that date. The changes will
expire, however, and be of no further force or effect with respect to
any pending or future cases, on January 31, 1996, absent renewal by the
Board.
for further information contact: John C. Truesdale, Executive
Secretary, National Labor Relations Board, 1099 14th Street, NW., Room
11602, Washington, DC 20570. Telephone: (202) 273-1934.
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.
The Board received eight written comments on the NPR. The comments
were received from a variety of sources, including unions, employer
associations, practitioners, and the academic community. The comments
were mixed, with some supporting some of the proposals but not others,
and others supporting none of the proposals. Having carefully
considered these comments, for the reasons discussed below, the Board
has decided to implement the proposed changes with certain
modifications for a one-year experimental period.
I. Settlement Judges
The proposal on the use of settlement judges proposed to amend
Sec. 102.35 of the Board's rules to include provisions for the
assignment of ALJs to serve as settlement judges. The comments on this
proposal were mixed, with two comments opposing the proposal, two
comments supporting the proposal, and two comments suggesting that the
proposal be modified to require the agreement of the parties. (The
other two comments made no comment on the proposal.)
The comments opposing the proposal generally expressed the view
that the proposal was unneeded and unlikely to yield significant
benefits given the Agency's already high settlement rate. The comment
submitted by the AFL-CIO also expressed the concern that the proposal
would diminish the availability of trial judges, cause the postponement
of hearing dates, and have a negative effect on settlement discussion
at the Regional level.
The Board acknowledges that there are potential problems which
could arise with the use of settlement judges. The proposed rules,
however, were drafted to minimize any such problems by requiring the
assigning judge to consider, among other factors, the likelihood that a
settlement may occur, the good faith of any person making a request for
assignment of a settlement judge, and whether the assignment is
otherwise feasible. The Board indicated in the NPR that among the
factors which the assigning judge could consider would be the effect of
an assignment upon agency resources, whether the assignment is being
sought for, or would have the effect of, delaying the proceeding, and
whether the assignment might tend to undermine other pending settlement
efforts.
As suggested by some of the comments, a further safeguard against
abuse of the procedure would be to condition the use of settlement
judges on the agreement of all parties. The proposed rule did not
include such a condition or otherwise permit a party to veto the use of
the procedure, but indicated that a party's opposition was a factor for
the assigning judge to consider in assessing whether to appoint a
settlement judge. Having considered the comments, however, the Board
agrees that the rule should state clearly that the procedure should not
be used unless the parties agree to it. This should further minimize
the potential for problems of the kind discussed by the AFL-CIO.
In view of the Agency's lack of experience with settlement judges,
however, the Board has decided to implement the procedure at this time
for a one-year trial period. If significant problems arise with the
procedure during that period, those problems may be considered by the
Board in considering whether to implement the changes permanently.
II. Briefs, Oral Argument, Recommendations, and Bench Decisions
As part of its ongoing review of ways in which unfair labor
practice proceedings can be revamped to move the cases more
expeditiously, the Board proposed to give its ALJs the discretion, in
appropriate cases, to dispense with post-hearing briefs or proposed
findings and conclusions, to hear oral argument, and to issue bench
decisions. These changes were proposed in the form of amendments to
Sec. 102.35(j) (renumbered to Sec. 102.35(b)(10)), Sec. 102.42, and
Sec. 102.45(a) of the Board's Rules and Regulations.
Of the eight comments received, two generally supported or did not
oppose these changes, while the remaining comments generally opposed
the changes. The comments opposing the changes generally expressed the
concern that dispensing with post-hearing briefs and issuing bench
decisions would be prejudicial to respondents given the absence of
pretrial discovery in Board proceedings, and would result in lower
quality ALJ decisions leading to further litigation.
As with the settlement-judge proposal, the Board recognizes that
problems could arise under the proposed changes if not properly
utilized. As the Board noted in the NPR, many cases are not suitable
for these expedited procedures, and if inappropriate cases were
selected, the resulting remands could delay the final disposition of
the cases.
As indicated in the NPR, however, the Board believes that if ALJs
choose the cases carefully, the benefits of expediting those cases
would outweigh any problems arising in other cases where the procedures
are improvidently utilized. In order to provide some guidance to the
ALJs in this regard, the Board in the NPR suggested certain types of
cases in which it may be appropriate to dispense with briefs and/or to
issue bench decisions, such as cases that turn on a very
straightforward credibility issue; cases involving one-day hearings;
cases involving a well-settled legal issue where there is no dispute as
to the facts; short record single-issue cases; or cases in which a
party defaults by not appearing at the hearing. The Board indicates
that in more complex cases, including cases with lengthy records, these
procedures would likely not be appropriate.
The Board continues to believe that the proposed changes would be
beneficial if properly implemented in accordance with the cautions and
guidance expressed by the Board in the NPR. However, in view of the
Agency's lack of experience with such procedures, as with the
settlement-judge proposal, the Board has decided to implement the
procedure at this time for a one-year trial period.
As the dissent states, the Board has held that a judge's issuance
of an oral decision did ``not satisfactorily compl[y] with the
requirements of Section 10(c) of the National Labor Regulations Act, as
amended, and Section 102.45 of the Board's Rules and Regulations, as
amended, with regard to the preparation of a written decision.'' See
Local Union No. 195, Plumbers (Stone & Webster Engineering Corp.), 237
NLRB 931, 931 (1978). See also Plastic Film Products Corp., 232 NLRB
722, 722 (1977). It is clear, however, that it is the Board's
regulations, and not Section 10(c) of the Act, which has been the
obstacle to such decision. See id. at fn 1 in both cases (Member Murphy
concurring). Indeed, in a subsequent case, a different panel of the
Board, which included one of our dissenting colleagues, upheld an oral
decision by a judge. See Jumbo Produce, 294 NLRB 998, 998-999 (1989)
(rejecting General Counsel's contention that ALJ's dismissal of an
8(a)(1) allegation at the hearing was ``procedurally incorrect'' under
Stone & Webster ``because he did not issue a written decision,''
inasmuch as the judge had allowed the General Counsel to present his
legal and factual arguments and had stated on the record the reasons
for his findings). The rule changes which we adopt today on an
experimental basis are designed to remove any regulatory obstacle which
may exist in light of the Board's decisions in Stone & Webster and
Plastic Film Products and are fully consistent with the Board's
decision in Jumbo Produce.
In any event, the new provisions on bench decisions do not violate
Section 10(c). Section 102.45 of the rules, as amended, provides that
all decisions, including bench decisions, must contain findings of
fact, conclusions, and the reasons or basis therefor upon all material
issues of fact and law, as well as a recommended order, including
affirmative provisions, all as required by Section 10(c). The
amendments to Sec. 102.45 of the rules provide that the administrative
law judge will certify the accuracy of the pages of the transcript
which contain the decision and shall cause those pages to be served on
the parties and filed with the Board. Thus, these provisions provide
for a written decision, in the form of a certified copy of the record
pages containing the judge's full decision, which is served on the
parties, in full compliance with the provisions of Section 10(c) of the
Act. To the extent that the decisions in Stone & Webster and Plastic
Film Products suggest otherwise, we conclude that they are based on a
misreading of the requirements of Section 10(c), and they are overruled
by the new provisions of the Rules.
Pursuant to 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 reasons set forth above, during the one-year experimental
period, 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, DC, 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
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. 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, DC, December 16, 1994.
By direction of the Board:\1\
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\1\Chairman Gould and Members Devaney and Browning; Members
Stephens and Cohen dissenting in part. The dissenting opinion by
Members Stephens and Cohen is attached.
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John C. Truesdale,
Executive Secretary.
Dissenting Opinion of Members Stephens and Cohen
1. Introduction
We are not opposed to the provision regarding settlement judges. We
have some concerns that the provision may tempt respondents to delay
settlement talks with the Regional Offices and thereby upset the highly
successful settlement efforts of those offices. However, we are
willing, in light of the one-year sunset provision, to join our
colleagues in promulgating this provision.
We are strongly opposed, however, to the rules that give
Administrative Law Judges (ALJs or Judges) the discretion to dispense
with briefs and to issue bench decisions.
2. Statutory Issue
As a threshold matter, we note that, under established Board law,
the provision for bench decisions directly contravenes the Act. In
Plastic Film Products Corp., 232 NLRB 722 (1977), the Board held that
such decisions fail to comply not only with Section 102.45 of the
Board's Rules and Regulations, but also with Section 10(c) of the Act.
Id. at 722. See also Local Union No. 195 (Stone & Webster Engineering
Corp.), 237 NLRB 931 (1978) (oral grant of motion for summary dismissal
of complaint at close of hearing violates Section 10(c) as well as
Section 102.45 of Board's Rules and Regulations).\2\ Thus, the Board's
new rule reverses established Board law.
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\2\Contrary to the assertion of our colleagues, it is clear that
Section 10(c) was indeed one of the obstacles to the oral decisions
in these cases. Only one Member (Murphy) relied solely on the Rules.
The majority relied on Section 10(c) and the Rules.
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In arguing to the contrary, our colleagues rely upon Jumbo Produce,
294 NLRB 998. However, that case is readily distinguishable. In that
case, the judge made an oral evidentiary ruling on a single issue. He
did not rule on the entire case. Indeed, the Board specifically noted
this in distinguishing its earlier ruling in Local Union 195. See 294
NLRB at 999 n.4. We have no quarrel with the traditional practice under
which judges issue bench rulings on evidentiary issues. But the instant
rule goes far beyond that. It gives the judge the power to orally
decide the entire case.
We recognize that, in Local Union 195, the judge did not read any
findings and conclusions into the record. However, in Plastic Film
Products, the judge did precisely that. Notwithstanding this, the Board
found that the judge's decision violated Section 10(c) of the Act.\3\
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\3\Member Stephens finds the construction of Section 10(c) by
the majority in Plastic Film Products Corp. highly questionable, but
he agrees that it at least presents an additional issue that parties
might raise in the courts when seeking review of cases decided by
bench rulings. As we argue below, to the extent that further grounds
for appellate litigation are provided, the asserted delay-minimizing
objective of the rule is undermined.
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In sum, the rules are at odds with Board law. Our colleagues, in
apparent recognition of this fact, overrule Board law to the extent
necessary to accomplish their purpose. However, they set forth no
rationale for this result other than the assertion that the cases are
based on a ``misreading'' of Section 10(c). They offer no support for
this sweeping assertion. Further, they may not have the power to
overrule the extant cases. If the Board was correct in the prior cases,
i.e., if Congress did indeed intend to preclude bench decisions in
enacting Section 10(c), then the Board is simply without authority to
establish a rule to the contrary. See Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (where
intent of Congress is clear, agency must give effect to that intent).
Although the Board has now declared that it has the power to issue
the rule, that declaration will not end the matter. The statutory issue
will undoubtedly be the subject of extended litigation in the federal
courts. Thus, for this reason as well as other reasons described infra,
the rule is at cross-purposes with its stated goal: to expedite the
final resolution of unfair labor practice cases.
3. Policy Considerations
We do not rest entirely, or even principally, on the statutory
issue. Quite apart from the statutory issue, we oppose, for policy
reasons, the provisions giving ALJs the power to issue bench decisions
and the related power to dispense with written briefs. In our view, the
rules sacrifice fundamental fairness, procedural due process and high-
quality decisionmaking. This sacrifice is said to be in the interest of
speed. However, we are not convinced that the rules will result in any
overall savings of time. More importantly, to the extent that they
might save some time, the price is simply too high.
We first address the rule concerning briefs. Underlying much of our
concern about this rule is one critical fact: NLRB proceedings are
conducted without pre-trial discovery. Thus, far from involving a
rehash of previous deposition testimony and jousting over the
significance of documents long ago made available to the opposing side,
Board trials typically represent the first occasion on which the
parties learn the details of their opponent's case.\4\ Notwithstanding
this fact, the rule would require counsel, promptly upon the close of
evidence, to marshal the pertinent facts, spot all the factual and
legal issues, cite the relevant authority, and articulate policy
concerns--all in a cogent and organized fashion. In our view, even the
ablest of counsel cannot be expected to do an effective job under these
circumstances. Moreover, as some of the comments on the proposed rules
have pointed out,\5\ counsel for respondents will be at a distinct
disadvantage under this scheme. Armed with the information gathered in
the pre-complaint investigation, the General Counsel is in a much
better position than respondent's counsel to plot out in advance an
oral presentation of the facts and the law.
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\4\As noted infra, the General Counsel will ordinarily have some
prior knowledge of the specifics of the respondent's case, with the
extent of that knowledge varying with the degree of cooperation
extended by the respondent during the pre-complaint investigation.
\5\See comments of Thomas A. Lenz (Atkinson, Andelson, Loya,
Ruud & Romo) at 2; William K. Harvey (Jackson, Shields, Yeiser &
Cantrell) at 1.
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The rule is otherwise flawed. Although it provides for a
``reasonable period'' for oral argument, it does not provide such a
period for the preparation of the argument. Further, even if a judge
granted such a period, that would not cure the fundamental defect in
this provision. A recess period is simply no substitute for the time-
honored practice of reading the transcript, researching the issues by
use of a library and computer technology, reflecting upon the law and
the facts, and writing a cogent, organized and persuasive brief.
Requiring counsel to throw together a presentation at the close of
the trial also creates a real danger that relevant points will be
overlooked. The consequences of any such omission or oversight can be
severe. If a party fails to raise a point before the ALJ, it may well
have waived its right to raise that issue before the Board. See, e.g.,
Local 520, IUOE (Mautz & Oren, Inc.), 298 NLRB 1098, 1098 n.3 (1990);
Hydro Logistics, Inc., 287 NLRB 602, n.1 (1987). Issues not raised
before the Board, of course, cannot ordinarily be raised on appeal. See
NLRB Section 10(e).
For all of the reasons discussed above, we believe that dispensing
with briefs is fundamentally unfair to the participants in Board
proceedings. We further believe that this practice will erode the
quality of decision-making by ALJs. As any decision-maker can attest,
the decisional process is greatly facilitated by access to thorough and
competent written arguments on both sides of the issue. Substituting
hasty and perhaps ill-considered oral presentations for written briefs
cannot help but make the job of the ALJ more difficult, as well as that
of the Board members and federal judges who must review the ALJ's
decision.
The provision allowing ALJs to issue decisions from the bench is
perhaps even more objectionable. First of all, the threat to the
quality of ALJ decisions posed by dispensing with briefing will only be
compounded by the absence of a written ALJ decision. In essence, the
Judge will have just heard oral arguments, which were constructed
without benefit of time for assimilation, research, organization and
reflection. The judge will thereupon render a decision, without an
independent opportunity for assimilation, research, organization and
reflection. In our view, such a process is not a recipe for
excellence--or even quality--in decision-making.
The use of bench decisions, moreover, is bound to compound the
Board's difficulties in the federal courts. In recent years, reviewing
courts have shown an increasing propensity to remand cases to the Board
(or simply to reverse the Board outright) on grounds that the Board has
not adequately articulated the basis for its decision. Our colleagues
nonetheless wish to implement a rule that can only exacerbate this
problem.
As the new rule recognizes, ALJ bench decisions are not exempt from
the requirements of the Administrative Procedures Act (APA), which
provides that all decisions ``shall include a statement of * * *
findings and conclusions, and the reasons or basis therefore, on all
the material issues of fact, law, or discretion presented on the record
* * *.'' 5 U.S.C. Section 557(c) (1988) (emphasis added). Just as the
most competent of counsel will have difficulty constructing a cogent
oral argument on the spot, so, too will even the ablest of ALJs have
difficulty covering all the basis required by the APA in a bench
decision--especially one rendered without the benefit of written
briefs. The question whether the Judge's oral decision complies with
the APA will thus, as noted in comments on the proposed rule,\6\
provide fertile ground for litigation before the circuit courts as well
as the Board.
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\6\See Comment of Jeffrey C. McGuiness (Labor Policy
Association) at 3.
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In addition, we are not convinced that resorting to bench decisions
will result in any net savings of time--the driving force behind this
provision. Litigation over the adequacy of the Judge's oral findings is
almost certain to add time at both the Board and court levels. Indeed,
the mere opportunity to litigate this procedural issue may result in
the appeal of cases that would not otherwise be taken up--for instance,
Section 8(a)(3) cases that turn largely on the Judge's factual
findings. Moreover, where the Judge has indeed failed to make all the
proper findings, the Board will have to attempt, where possible, to
supply the missing ingredients itself, or else remand the case for
further findings--both time-consuming processes. Further remands will
be doubt occur at the circuit court level when the court disagrees with
the Board's determination regarding the adequacy of the findings.
Thus, litigation over the ``adequacy'' issue, and the necessity for
remands in some cases, will add time to the process. In our view, this
additional time will likely be greater than the time saved by
dispensing with a written decision.\7\ Whereas a remand will likely
result in a minimum of several months of delay, requiring a written
decision (after the filing of briefs) should add at most several weeks
to the decision time in a ``simple'' case--a period that can be kept to
a minimum by encouraging ALJs to set short briefing schedules in
appropriate cases.
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\7\See also Comment of Jeffrey C. McGuiness (Labor Policy
Association) at 3-4.
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In this regard, we do not share our colleagues' apparent belief
that remands can be avoided by carefully culling out only relatively
simple cases. The rule, of course, does not confine use of the
procedure to any particular kind of case. Even if ALJs attempt to abide
by the ``suggestions'' put forth by the Board, there will undoubtedly
be cases where the prediction is not borne out. A case that appears
``simple'' may turn out not to be so simple after all. This is
particularly true, given the absence of discovery. The fact that the
ALJ knows little about the case until the evidence unfolds at trial
increases the risk that a case that appears at first blush to require
only a straightforward credibility determination or the application of
a well-settled principle of law may, upon reflection, turn out to
involve much more.
4. The Comments
The concerns set forth above are shared by most of the persons and
organizations submitting comments. The great bulk of the comments
submitted to the Board express strong opposition both to dispensing
with briefs and to oral ALJ decisions.\8\ Indeed, the proposed rules
are characterized in such terms as ``ill-advised'', ``unwarranted'',
and as ``sacrific[ing] accuracy, fairness and quality for
expedience.''\9\ The sole comment that fully supports the proposed rule
completely ignores one of our primary sources of concern (discussed
extensively in our earlier statement as well as in our dissent today)--
the lack of discovery in Board proceedings. The comment is thus
unpersuasive.\10\
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\8\See Comments of Jeffrey C. McGuiness (Labor Policy
Association) at 2 (``strongly opposed'' to proposed rule changes);
William K. Harvey (Jackson, Shields, Yeiser & Cantrell) at 1 (same);
Ellen J. Dannin (California Western School of Law) at 2 (opposing
``all but the most limited use of such a process''); see also
Comments cited infra note 8. All told, six of the eight comments
expressed adamant opposition to these proposed changes.
\9\See, respectively, Comments of Philip J. Moss (Moon, Moss,
McGill & Bachelder) at 1; Thomas A. Lenz (Atkinson, Andelson, Loya,
Ruud & Romo, Bachelder) at 1; Charlotte Herbert (Associated Builders
and Contractors) at 1.
\10\See Comment of Laurence Gold & James Coppess (AFL-CIO). This
comment asserts that ``a number of federal administrative agencies
expressly authorize oral decisions by ALJs,'' and urges us to join
the crowd. See id. at 5. Its citations support this claim as to
three agencies or administrative bodies--the Maritime Administration
of the Department of Transportation, the National Transportation
Safety Board, and the Department of Agriculture. The rules of two of
these bodies, however, expressly provide for discovery, see 49
C.F.R. Section 821.19 (1993) (National Transportation Safety Board);
46 C.F.R. Section 201.109 (1993) (Maritime Administration); and
those of the third provide for a pre-hearing conference at which the
Judge may compel the parties to furnish certain information
regarding their case, including documents they intend to introduce,
see 7 C.F.R. Section 1.140 (1994) (Department of Agriculture). This
comment's analogy to bench decisions issued by the federal district
courts is similarly wide of the mark; those proceedings, of course,
are conducted in accordance with the Federal Rules of Civil
Procedure, which provide for extensive pre-trial discovery.
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5. Conclusion
Like our colleagues, we are in favor of expediting the Board's
processes. The rules being implemented today, however, are unlikely to
achieve that end, and in any event would do so at a cost that is much
too high to pay. That price includes: a lack of fundamental fairness in
Board proceedings, a decline in the quality of the agency's decisional
product, and increasing tension in our relationship with the federal
courts.
In our quest for speed, we must be careful not to undermine the
fundamental goals of fairness in our decisional procedure and
excellence in our decisional product. Because we believe that the rules
approved by our colleagues will do just that, we dissent.
[FR Doc. 94-31486 Filed 12-21-94; 8:45 am]
BILLING CODE 7545-01-M
