[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