[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \6\See Comment of Jeffrey C. McGuiness (Labor Policy 
Association) at 3.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \7\See also Comment of Jeffrey C. McGuiness (Labor Policy 
Association) at 3-4.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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