[Federal Register Volume 61, Number 37 (Friday, February 23, 1996)]
[Rules and Regulations]
[Pages 6940-6942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4155]



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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: Final rule.

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SUMMARY: The National Labor Relations Board (NLRB) issues a final rule 
permanently implementing its recent 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.

EFFECTIVE DATE: March 1, 1996.

FOR FURTHER INFORMATION CONTACT: John J. Toner, Executive Secretary, 
National Labor Relations Board, 1099 14th Street, NW., Room 11600, 
Washington, D.C. 20570. 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.
    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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    On December 1, 1995, following a review of the experience to date 
with the modifications and the views of the NLRB's Advisory Committee 
on Agency Procedure, the Board issued a notice proposing to make the 
modifications permanent upon expiration of the one-year experimental 
period on January 31, 1996 (60 FR 61679). The notice provided for a 
period of public comment on this proposal, until December 29, 1995.
    Thereafter, in light of the shutdown of Agency operations due to 
the lack of appropriated funds, on January 19, 1996, the Board extended 
from December 29, 1995, until January 25, 1996, the deadline for filing 
comments (61 FR 1314). The same day, the Board also extended the 
experimental period from January 31, 1996, until March 1, 1996, to 
provide the Board time to consider any comments that were filed (61 FR 
1281).
    The Board received only one comment in response to its December 1, 
1995 notice, from William K. Harvey of Jackson, Shields, Yeiser & 
Cantrell, Cordova, Tennessee. The comment recommended that the Board 
make the modification regarding settlement judges permanent and that 
settlement judges be used in more cases. The comment recommended, 
however, that the Board modify the requirement that all parties consent 
to the procedure by requiring any party who objects to the appointment 
of a settlement judge to show good cause for such objection and 
allowing the chief or associate chief 

[[Page 6941]]
judge to consider the reasons stated and grant or deny the motion 
notwithstanding the stated opposition. The comment also recommended 
that the settlement judge be given the authority and discretion to 
postpone the scheduled hearing where the settlement judge determines 
that a brief postponement would serve the purposes of settlement.
    With respect to the modification permitting bench decisions, the 
comment urged that this modification be abolished, citing in support 
two ALJ bench decisions which the comment asserts were terse and 
confusing.\2\ Alternatively, the comment recommended that the Board 
adopt a rule that such decisions will never be published in Board 
reports.

    \2\The Riverboat Hotel, 319 NLRB No. 30 (Sept. 29, 1995); and 
Kinco, Ltd., 319 NLRB No. 56 (Oct. 23, 1995) (Member Cohen 
dissenting in relevant part).
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    Having carefully considered the foregoing comment, we have decided, 
consistent with and for the reasons stated in the December 1, 1995 
notice, to implement, on a permanent basis and without change, the 
experimental modification to the Board's rules with respect to both 
settlement judges and bench decisions. As indicated in the December 1, 
1995 notice, many of the issues raised by the comment were considered 
by the NLRB Advisory Committee on Agency Procedure, and either the 
Management or the Union-side Panel of the Advisory Committee indicated 
strong opposition to the modifications to the settlement judge 
procedure proposed in the comment. Thus, as indicated in that notice, 
the Management-side Panel indicated strong opposition to modifying the 
current consensual aspect of the settlement judge procedure, and the 
Union-side Panel indicated strong opposition to providing the 
settlement judge with the authority to postpone the trial date. In 
light of the views of the Advisory Committee, we do not believe the 
procedure should be modified as recommended by the comment at this 
time.
    With respect to the bench decision procedure, as indicated in the 
December 1, 1995 notice, in the vast majority of cases during the 
experimental period involving a bench decision either no exceptions 
were filed to the ALJ's bench decision or the Board short-form adopted 
the decision. In those cases where no exceptions were filed to the 
ALJ's bench decision, the decision was not published in Board reports 
consistent with the Board's historical practice where no exceptions are 
filed. The other decisions were published pursuant to the Board's usual 
procedure, and we believe that publishing such decisions, on balance, 
is generally beneficial to the public and should be continued where 
appropriate.
    Accordingly, we conclude that the experimental modifications should 
be permanently implemented without change.
    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.

    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, 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 

[[Page 6942]]
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. 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.
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    Dated, Washington, D.C., February 16, 1996.

    By direction of the Board: \3\

    \3\ Chairman Gould and Members Browning and Fox; Member Cohen 
dissenting in part. Member Cohen's partial dissent is attached.
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John J. Toner,
Executive Secretary.

Dissenting Opinion of Member Cohen

    I agree with the rule concerning settlement judges. However, I 
do not agree with the rule which gives judges the power to issue 
bench decisions and the related power to preclude written briefs.
    In my dissent from the promulgation of the experimental rule (a 
dissent joined by former Member Stephens), I set forth Board law 
which holds that bench decisions are contrary to the provisions of 
Section 10(c) of the Act.\4\ My colleagues, in apparent recognition 
of this fact, chose to summarily overrule that Board law. However, 
as I noted in my dissent, if Section 10(c) forbids bench decisions, 
the Board is without statutory power to establish a rule which 
permits such decisions.\5\

    \4\ Plastic Film Products Corp., 232 NLRB 722 (1977); Local 
Union No. 195, 237 NLRB 931 (1978).
    \5\ See Chevron U.S.A. v. Natural Resources Defense Council, 467 
U.S. 837, 842, 843 (1984).
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    My colleagues have not answered this threshold problem. Further, 
even if they were to do so (to their satisfaction), that does not 
end the matter. The issue will undoubtedly be the subject of 
litigation in the federal courts, delaying the prompt enforcement of 
Board orders. Thus, the rule is at cross-purposes with its stated 
goal--the prompt resolution of unfair labor practice cases. Further, 
in my prior dissent, I set forth other concerns about the rule. At 
this juncture, I cannot say with certainty whether these concerns 
have been borne out by experience. During the experimental time 
frame, there have been only 10 bench decisions out of the 400 
decisions issued (2.5%). However, that very paucity of decisions 
bespeaks an important point. Our judges, to their credit, have 
exercised prudent restraint in exercising the power to issue bench 
decisions. Accordingly, for the most part, problems have not 
surfaced.\6\ As long as such restraint is exercised, my concerns may 
well be allayed. I am hopeful, and cautiously optimistic, that this 
will be the case.

    \6\ However, there was a substantial problem, in my view, in 
Kinco, 319 NLRB No. 56.
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[FR Doc. 96-4155 Filed 2-22-96; 8:45 am]
BILLING CODE 7545-01-P