[Federal Register Volume 59, Number 173 (Thursday, September 8, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22177]
[[Page Unknown]]
[Federal Register: September 8, 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: Notice of proposed rulemaking.
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SUMMARY: The National Labor Relations Board (NLRB) proposes to amend
its rules with respect to the role that its Administrative Law Judges
play in facilitating the expeditious resolution of unfair labor
practice proceedings. First, the NLRB proposes to amend Section 102.35
of the 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.
Second, the NLRB proposes modifying Section 102.35(j), Section 102.42,
and Section 102.45(a) to give administrative law judges assigned to
hear a case 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 October 7, 1994.
ADDRESSES: Comments should be sent to: Office of the Executive
Secretary, National Labor Relations Board, 1099 14th Street, NW., Room
11602, Washington, DC 20570 Telephone: (202) 273-1934.
FOR FURTHER INFORMATION CONTACT:John C. Truesdale, Executive Secretary.
Telephone: (202) 273-1934.
SUPPLEMENTARY INFORMATION:
I. Settlement Judges
The National Labor Relations Board proposes to amend Sec. 102.35 of
its Rules and Regulations, 29 CFR 102.35, to include provisions for the
assignment of administrative law judges to serve as settlement judges.
The proposal is modeled on Recommendation 88-5 of the Administrative
Conference of the United States, 1 CFR 305.88-5, and with an awareness
of the successful implementation of similar procedures by other
agencies. The proposal would supplement, rather than supplant,
settlement techniques traditionally used by the NLRB and its judges.
The proposal permits the chief administrative law judge in
Washington, or his deputies and associates in other offices, to appoint
a settlement judge, who shall be other than the trial judge assigned to
the case, with powers to convene and preside over settlement
conferences between the parties in an effort to facilitate settlements.
Decisions whether to assign a settlement judge, and when to
terminate such participation, are left to the discretion of the
assigning judge and are not appealable to the Board.
The importance of choosing wisely whether and when to assign a
settlement judge can be crucial to the prospects for success in
achieving a settlement. Therefore, the rules require 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. Among the factors which the assigning judge may
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. Unlike the rules of some
other agencies, these proposed regulations would not permit a party to
veto the use of the procedure. However, as a practicable matter, a
party's opposition to the use of the procedure is a factor that the
assigning judge may consider in assessing whether the appointment of a
settlement judge is likely to resolve the dispute.
The preferred method of conducting settlement conferences is to
have the parties or their representatives attend in person, since such
conferences are most likely to prove fruitful. However, the rule does
not preclude holding settlement conferences by telephone in
circumstances in which personal attendance at the conference is not
feasible.
Discussions between the parties and the settlement judge are to be
held confidential and are not admissible in proceedings before the
Board except by stipulation of the parties.
Finally, the proposed rule provides that any settlement reached
under the auspices of a settlement judge is subject to approval in
accordance with the agency's existing procedures for approving and
reviewing the approval of settlements. These procedures are set forth
in Section 101.9 of the Board's Statements of Procedure, 29 CFR 101.9.
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 National Labor Relations Board proposes to give its
administrative law judges 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 are
proposed in the form of amendments to Sec. 102.35(j) (renumbered to
102.35(b)(10)), Sec. 102.42, and Sec. 102.45(a) of the Board's Rules
and Regulations.
Under the proposals, an administrative law judge shall have the
discretion to decide whether or not briefs are needed in any case
before rendering a decision. If the judge decides that briefs are not
required, the parties are to be given the opportunity to present
proposed findings and conclusions, either orally or in writing, as well
as oral argument. In any case in which the judge believes that written
briefs or proposed findings of fact and conclusions may not be
necessary, he or she is to notify the parties at the opening of the
hearing or as soon thereafter as practicable, in order to alert the
parties to the possibility that they may be called upon to present
their positions orally, rather than in writing, at the close of the
hearing.
The proposal also gives administrative law judges the authority to
render bench decisions, delivered within 72 hours after conclusion of
oral argument. These decisions, like any other decisions, must be
rendered in conformity with the provisions of the Administrative
Procedure Act, 5 U.S.C. 557.
The NLRB is mindful that many cases are not suitable for decision
from the bench. If inappropriate cases were selected for this sort of
summary disposition, the resulting remands could delay the final
disposition of the cases. On the other hand, if administrative judges
choose the cases carefully, the benefits of expediting those cases
would outweigh the delays in the few cases where the procedure is
improvidently utilized.
The Board has not tried to spell out, in the proposed rules, the
circumstances in which these procedures should be utilized. Rather, it
anticipates that monitoring experience with the implementation of the
proposal is the best way to refine the circumstances for which the
procedures are best suited. Nevertheless, in order to provide some
guidance in the initial application of these rule changes, the Board
suggests that cases in which it may be appropriate to dispense with
briefs and/or to issue bench decisions would include, for example: a
case that turns 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. In more complex cases, including cases with lengthy records,
utilizing these procedures could create situations in which the Board
or the reviewing courts might find it necessary to remand a case for
more thoughtful consideration.
As required by the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.) the NLRB certifies that this rule 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 amend 29 CFR
Part 102 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. 102.53 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. Sec. 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 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.
(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 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, DC, 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 Section 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 an oral decision from the
bench, 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 transferred
the case to the Board shall be complete upon mailing.
* * * * *
Dated, Washington, DC, September 2, 1994.
By direction of the Board:\1\
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\1\Chairman Gould and Members Stephens, Devaney, Browning, and
Cohen. A separate statement by Members Stephens and Cohen is
attached.
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John C. Truesdale,
Executive Secretary.
Statement of Members Stephens and Cohen
The following statement pertains to the proposed rules
concerning briefs, oral argument, and bench decisions.\2\ Although
we join our colleagues in seeking public comment on these proposed
rules, we wish to express our separate reasons for doing so.
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\2\With respect to the proposed rules concerning settlement
judges, we agree fully with our colleagues.
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In our view, the Board should propose a given rule only if it
believes that the rule has at least prima facie merit. Phrased
differently, the Agency should not be the proponent of a rule which,
in its view, is lacking in such merit.
Because of these considerations, we are somewhat ambivalent
about joining our colleagues in proposing the instant rule. On the
one hand, we applaud, and share, our colleagues' desire to expedite
the decisional process as much as possible. On the other hand, we
are concerned that the proposed rule may jeopardize such important
values as fairness, procedural due process and the quality of
decisions.
For the reasons set forth below, we are presently inclined to
believe that the latter factors outweigh the former. However, the
issue at this juncture is whether the matter is so clear as to
virtually compel the conclusion that the proposed rules lack prima
facie merit. Because this issue is not free from doubt, we join our
colleagues in submitting the rules for public comment. However, we
believe that we must candidly state our misgivings about the
proposed rules. In that way, those members of the public who wish to
support the rules will know precisely the factors that they must
address if they are to gain our approval. We look forward to
receiving their comments, and those of others, and we remain open to
persuasion.
A proper understanding of these issues must begin with the
critical fact that NLRB proceedings are conducted without pre-trial
discovery. Thus, each party learns of the other's case only as the
trial unfolds. Under the proposed rule, promptly at the end of this
unfolding process, the attorney or other representative would have
to proceed without opportunity for assimilation, research,
organization and reflection. In such circumstances, counsel may be
unable to do an effective job. That would be a disservice not only
to the client, but also to the process.
Although the proposed rule provides for a ``reasonable period''
for oral argument, it does not provide for a reasonable period, or
any period, to perform the tasks enumerated above. Further, even if
the judge were to grant a recess for counsel to prepare oral
argument, that may not solve the problem. A recess period for
preparation may not be an adequate substitute for the time-honored
practice of reading a transcript, researching issues by use of a
library and computer technology, reflecting upon the relationship of
pieces of evidence, studying precedent, and writing a cogent,
organized, and persuasive brief.
Further, if counsel has no opportunity to perform in the
traditional way, there is a danger that relevant points may be
overlooked. The consequences of this can be severe. If a party fails
to make a point to the judge, that party may well have waived its
right to make the point to the Board, See e.g., Hydro Logistics,
Inc., 287 NLRB 602, n.1 (1987), Local 520, IUOE (Mautz & Oren,
Inc.), 298 NLRB 1098, n.3 (1990). And, if the point cannot be made
to the Board, the party will be unable to raise it to the reviewing
court. See Section 10(e) of the Act.
Further, an inadequate presentation to the judge may make more
difficult the process of decision-making by the judge and by the
reviewing Board and courts. The decisional process is facilitated by
the use of excellent and well-organized briefs. The process becomes
more difficult if one does not have the assistance of such briefs.
The proposal for bench decisions also raises concerns. Indeed,
the difficulties in dispensing with written briefs may be compounded
when the judges, without the benefit of such briefs, render bench
decisions. In our view, the absence of guiding briefs may have a
negative impact on quality in the decisional process. Further,
unless the Board, upon review, supplies the missing ingredients--
itself a time-consuming process--the courts, in reviewing Board
decisions, may have problems in at least some of the cases which
they review.
Our colleagues have wisely suggested limitations on the proposed
procedures, i.e., confining their use to relatively simple cases.
However, these limitations presently are not set forth in the rule.
Further, even if the judge seeks to abide by the limitations, and
chooses what appears to be a ``simple'' case, that case may turn out
to be not so simple after all. As set forth above, the absence of
pre-trial discovery means that counsel and the judges hear the
evidence for the first time at trial. Consequently, although a case
might appear, at first blush, to present only a straight-forward
credibility issue or a single well-settled legal issue, it may, upon
reflection, involve much more. Although the Board could reverse and
remand when the procedures have been used inappropriately, this
would only add time to the process.
To be sure, we are in favor of expediting the process. In
appropriate cases, we would encourage judges to set short time-
periods for the receipt of briefs. But, in our quest for speed, we
must be careful not to undermine the goals of fairness in our
decisional procedure and excellence in our decisional product.
[FR Doc. 94-22177 Filed 9-7-94; 8:45 am]
BILLING CODE 7545-01-M
