[Federal Register Volume 60, Number 231 (Friday, December 1, 1995)]
[Proposed Rules]
[Pages 61679-61681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29297]



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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: Proposed permanent modification of rules upon expiration of 
one-year experiment.

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SUMMARY: The National Labor Relations Board (NLRB) issues a document 
proposing to make permanent, following expiration of the one-year 
experimental period on January 31, 1996, the experimental modification 
to its rules authorizing the use of settlement judges and providing 
administrative law judges (ALJs) with 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 December 29, 1995.

ADDRESSES: Comments should be sent to: Office of the Executive 
Secretary, National Labor Relations Board, 1099 14th Street NW., Room 
11600, Washington, D.C. 20570. Telephone: (202) 273-1940.

FOR FURTHER INFORMATION CONTACT: John J. Toner, Acting Executive 
Secretary, Telephone: (202) 273-1940.

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.
    Thereafter, on December 22, 1994, following consideration of the 
comments received to the NPR, the Board \1\ issued a notice 
implementing, on a one-year experimental basis, the proposed 
modifications (59 FR 65942). The notice provided that the modifications 
would become effective on February 1, 1995, and would expire at the end 
of the one-year experimental period on January 31, 1996, absent renewal 
by the Board.

    \1\ Chairman Gould and Members Devaney and Browning; Members 
Stephens and Cohen dissenting in part.
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    Recently, on November 6 and 8, 1995, the Board met with the 
Management and Union-side Panels of the NLRB Advisory Committee on 
Agency Procedure to discuss, among other matters, the experience to 
date with the experimental modifications and whether the modifications 
should be extended or made permanent following expiration of the one-
year experimental period.\2\ The following is a summary of the 
information that the Board provided to the members of the Advisory 
Committee Panels on this question.

    \2\ A notice of these meetings was issued on October 19, 1995, 
advising the public of the agenda and of the right to attend and 
file written comments on the matters discussed within 30 days 
thereafter (60 FR 54090). To date, no written public comments have 
been received.
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Settlement Judges

    Since February 1, 1995, settlement judges have been assigned in 55 
cases. There have been settlements in 35 of the cases. Eighteen cases 
did not settle and went to trial. Settlement is still possible in some 
of the remaining cases. Some of the cases which settled did so after a 
trial judge was assigned and occurred either after conference calls 
conducted by the trial judge or at the hearing site. Twenty seven, or 
just about half of the cases in which settlement judges were assigned, 
were Region 4 (Philadelphia) cases in which the region played an active 
role in setting up settlement conferences. In about half a dozen other 
cases appointment of a settlement judge was requested by the General 
Counsel or a party. In the remaining 22 cases, settlement judges were 
assigned at the initiative of the Division of Judges. The Division of 
Judges has suggested appointment of settlement judges in other cases, 
but not all the parties have agreed. At the end of August 1995, there 
were a total of 577 settlements by ALJs compared to 544 at the end of 
August 1994. The difference is almost the same as the number of cases 
in which settlement judges were assigned and settlements were reached.

Bench Decisions

    Ten bench decision have issued since February 1, 1995 (out of 
approximately 400 total ALJ decisions). Several of the bench decisions 
turned on simple credibility determinations. None of the cases involved 
complex legal issues. The average transcript length was 144 pages; the 
median length was slightly higher. All of the cases took less than one 
day. In six of the 10 cases, no exceptions were filed to the ALJ's 
bench decision, and the Board therefore adopted the ALJ's decision in 
the absence of exceptions. Of the four other bench-decision cases, the 
Board short-form adopted the ALJ's decision in three of the cases,\3\ 
and the other case is still pending before the Board on exceptions.

    \3\ Sylvan Industrial Piping, Inc., 317 NLRB 772 (1995); The 
Riverboat Hotel, 319 NLRB No. 30 (Sept. 29, 1995); and Kinco, Ltd., 
319 NLRB No. 56 (Oct. 23, 1995) (Member Cohen dissenting in part).
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    The response of both the Management and the Union-side Panel of the 
Advisory Committee generally favored a continuation of the 
modifications, with the exception of the modification authorizing bench 
decisions, which received a mixed response from the Management-side 
Panel. The response of the Management-side Panel of the Advisory 
Committee generally favored a continuation of the modification 
authorizing the use of settlement judges. Several members of the Panel 
stated that they favored extending the settlement judge procedure, 
provided that the use of settlement judges continued to be consensual 
as currently provided. One member, however, stated the view that the 
emphasis with respect to settlement should be on the trial judges 
themselves and the Regional Office staff rather than on settlement 
judges. With respect to bench decisions, one member of the Management-
side Panel stated the view that this procedure should also be extended 
and used in more cases. However, two other members expressed concern 
about the lack of discovery and the absence of an opportunity to file a 
brief.
    The Union-side Panel also generally favored continuation of the 
settlement judge procedure. The Panel emphasized, however, that the 
settlement judge should not have the authority to postpone the trial 
date. Further, the Panel indicated that it was not necessarily opposed 
to eliminating the requirement that all parties agree to the use of a 
settlement judge or mandating that parties appear at an initial 
settlement conference. Finally, the 

[[Page 61680]]
Panel indicated support for continuing the bench decision procedure and 
encouraging its greater use.
    Having reviewed the experience to date with the modifications and 
the views of the Advisory Committee, the Board is proposing to extend 
the modifications in their current form by making them permanent 
following the expiration of the one-year experimental period on January 
31, 1996. The modifications are set forth below without change. The 
Board is providing a period for public comment on this proposal.
    As required by 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 the reasons set forth above, the NLRB proposes to permanently 
amend 29 CFR Part 102 as follows upon expiration of the one-year 
experimental period on January 31, 1996:

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, D.C., 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 
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 

[[Page 61681]]
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. In 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, D.C., November 27, 1995.

    By direction of the Board:
John J. Toner,
Acting Executive Secretary.
[FR Doc. 95-29297 Filed 11-30-95; 8:45 am]
BILLING CODE 7545-01-P