[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Proposed Rules]
[Pages 35172-35174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16986]
=======================================================================
-----------------------------------------------------------------------
NATIONAL LABOR RELATIONS BOARD
29 CFR Parts 101 and 102
Procedure Governing Advisory Opinions and Rules Governing Summary
Judgment Motions and Advisory Opinions
AGENCY: National Labor Relations Board.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: As part of its ongoing efforts to streamline its operations by
eliminating unnecessary and inefficient procedures, the National Labor
Relations Board (NLRB) is proposing to revise its rules to eliminate
the notice-to-show-cause procedure in summary judgment cases and to
remove provisions which permit parties to pending state proceedings to
file petitions for an advisory opinion on whether the Board would
assert jurisdiction under its commerce standards.
DATES: All comments must be received on or before August 5, 1996.
ADDRESSES: All written comments should be sent to the Office of the
Executive Secretary, National Labor Relations Board, 1099 14th Street,
NW., Room 11600, Washington, DC 20570. The comments should be filed in
eight copies, double spaced, on 8 1/2 by 11 inch paper and shall be
printed or otherwise legibly duplicated.
FOR FURTHER INFORMATION CONTACT: John J. Toner, Executive Secretary,
Telephone: (202) 273-1940.
SUPPLEMENTARY INFORMATION: Over approximately the last two years, the
NLRB has been conducting an intensive internal review of its procedures
at all levels of the Agency. The purpose of this internal review has
been to find ways to maintain and improve the Agency's case-processing
efficiency in light of the Agency's diminishing resources. Many
initiatives have already been implemented by the Board as part of this
ongoing review, such as the recent initiative authorizing the use of
settlement judges and providing judges with the discretion to dispense
with briefs and to issue bench decisions, which was published as a
final rule on February 23, 1996, following a one-year experimental
period (61 FR 6940). Other initiatives are currently under
consideration. Two such initiatives, involving the elimination of the
notice-to-show-cause procedure in summary judgment cases and the
removal of provisions permitting parties to pending state proceedings
to file petitions for an advisory opinion on whether the Board would
assert jurisdiction under its commerce standards, are set forth below.
1. Notices to show cause in summary judgment cases. Section
102.24(b) of the Board's rules currently requires the Board to issue a
notice to show cause to the parties prior to granting a motion for
summary judgment or dismissal. Such notices have historically served
several purposes or functions, including providing notice of the motion
to the opposing party, postponing any scheduled hearing date, and
setting the deadline for responding (normally 14 days from the date of
the notice).
All of these functions are essentially unnecessary, however. The
motion itself must be served on the opposing party and the motion
therefore provides its own notice to the opposing party. No further
notice is necessary.
With respect to postponing the hearing date, the Regional Director
has the unrestricted authority under Section 102.16 of the Board's
rules to do so at any time prior to 21 days before the hearing. Thus,
the General Counsel need not rely on the Board to postpone the hearing
upon filing a timely motion for summary judgment, which under Section
102.24(b) of the Board's rules must normally be filed at least 28 days
before the scheduled hearing. In the event the General Counsel does not
determine that a motion for summary judgment is warranted until after
expiration of the 28-day deadline for filing such motions with the
Board and the 21-day deadline on the Regional Director's unrestricted
authority to postpone the hearing, the General Counsel may in that
event seek a postponement from the Division of Judges prior to filing
the motion for summary judgment. See, e.g., R. B. Contracting Co., 321
NLRB No. 41 (May 20, 1996).
Of course, it may still be necessary in certain circumstances for
the Board to issue an order postponing the hearing in response to a
respondent's motion for summary judgment or dismissal. The Board's
experience with such motions, however, indicates that in the vast
majority of such cases there are factual issues which make summary
judgment or dismissal inappropriate. Thus, the Board in the past has
only rarely issued notices to show cause postponing the hearing in
response to respondent motions, and there is no reason why this
experience would change under the revised rule. In any event, as under
the current rule, under the revised rule the respondent may request the
Regional Director, administrative law judge, and/or the Board to
postpone the hearing when it files the motion for summary judgment or
dismissal. The Board normally completes its initial review of the
respondent's motion prior to the hearing, and in the event that its
initial review indicates that summary judgment may be appropriate, and
the hearing has not already been postponed, as under the current rule
the Board may issue an order postponing the hearing.
With respect to setting the time for responding, there is no reason
why the deadline for responding cannot be established by rule in all
cases. Similar deadlines are set forth in the Board's rules for the
filing of other pleadings (see, e.g., Sec. 102.20 of the Board's rules,
setting 14-day deadline for filing an answer to the complaint), and no
further or special notice of the deadline is required with respect to
those pleadings. See, e.g., Superior Industries, 289 NLRB 834, 835 n.
13 (1988) (no further reminder or warning of the failure to file an
answer required).
Moreover, we note that the General Counsel's practice with respect
to complaints and compliance specifications has been to specifically
advise the respondent in the complaint or specification itself of the
time for filing an answer. See NLRB Casehandling Manual, Sec. 10267
(complaints) and 10622.1 and App. 14 (compliance specifications). We
approve of this practice and anticipate that the General Counsel would
also adopt this practice with respect to default and other summary
judgment motions in the event the proposed revisions are adopted by the
Board.\1\
---------------------------------------------------------------------------
\1\ The General Counsel's failure to include such notice in the
motion for summary judgment would not necessarily require denial of
the motion, but would be considered by the Board as a factor in
ruling on any subsequent motion filed by the respondent for
reconsideration of the Board's decision granting the General
Counsel's motion for summary judgment.
---------------------------------------------------------------------------
[[Page 35173]]
Accordingly, the Board is proposing to revise Section 102.24(b) of
its rules to eliminate the notice-to-show-cause procedure in summary
judgment cases, and to instead provide that the 14-day period for
responding to the motion shall commence upon service of the motion. The
revised rule specifically provides that the hearing is not
automatically postponed upon filing of the motion for summary judgment,
and that it is the responsibility of the party moving for summary
judgment to postpone the hearing (if the General Counsel files the
motion for summary judgment) or to file a request for a postponement
with the regional director, administrative law judge, and/or the Board
(if the respondent or charging party files the motion for summary
judgment or dismissal). This latter provision is intended to make clear
that the General Counsel should not rely on the Board to postpone the
hearing or assume that the Board will issue an order postponing the
hearing, which was a function of the traditional notice to show cause.
Thus, when the General Counsel files the motion for summary judgment,
the General Counsel should also postpone the hearing (assuming the
General Counsel wishes to postpone the hearing and has the authority to
do so under Section 102.16 of the Board's rules.)
2. Party petitions for an advisory opinion. Sections 102.98(a) and
102.99(a) of the Board's rules, and Section 101.39 of the Board's
statements of procedures, currently authorize parties to pending state
proceedings to file a petition for an advisory opinion with the Board
as to whether the Board would assert jurisdiction under its current
commerce standards. There is no statutory requirement that the Board
entertain such advisory opinions, however, and the procedure is not
widely utilized.\2\ Further, the Board's jurisdictional standards are
generally well developed, and are readily available in numerous
published decisions and opinions. Experience with past party petitions
has shown that the parties themselves, or the state agency or court,
could just as easily have researched and applied the Board's current
commerce standards without invoking the Board's processes.
---------------------------------------------------------------------------
\2\ The Board typically receives about 10-15 party petitions for
advisory opinion each year. Although relatively few in number,
substantial staff resources are consumed in preparing and issuing
the Board's opinion in each case.
---------------------------------------------------------------------------
Moreover, there are other, often more speedy, avenues available for
obtaining a jurisdictional determination or opinion. For example,
Section 101.41 of the Board's statements of procedure provides that
persons may seek informal opinions on jurisdictional issues from the
Regional offices. And the Regional Office will also make a
jurisdictional determination early in its investigation of any
representation petition or unfair labor practice charges filed with
that office. See NLRB Casehandling Manual, Sec. 11706.
Finally, the proposed change would not affect the provisions of
current Section 102.98(b) and 102.99(b) of the Board's rules and
Section 101.39 of the Board's statements of procedure, which permit the
state or territorial agency or court itself to file a petition for an
advisory opinion on whether the Board would decline to assert
jurisdiction based either on its commerce standards or because the
employer is not within the jurisdiction of the Act. The provisions
permitting such petitions are retained, with minor modification to
Section 101.39 of the Board's statements of procedure to conform it
with Board decisions indicating that the Board will not issue an
opinion unless the relevant facts are undisputed or the state agency or
court has already made the relevant factual findings. See Correctional
Medical Systems, 299 NLRB 654 (1990); University of Vermont, 297 NLRB
291 (1989); and St. Paul Ramsey Medical Center, 291 NLRB 755 (1988).
See also Brooklyn Bureau of Community Service, 320 NLRB No. 157 (April
15, 1996).
Although the Agency has decided to give notice of proposed
rulemaking with respect to these rule changes, the changes involve
rules of agency organization, procedure or practice and thus no notice
of proposed rulemaking is required under Sec. 553 of the Administrative
Procedure Act (5 U.S.C. 553). Accordingly, the Regulatory Flexibility
Act (5 U.S.C. 601), does not apply to these rule changes.
List of Subjects in 29 CFR Parts 101 and 102
Administrative practice and procedure, Labor management relations.
For the reasons set forth above, the NLRB proposes to amend 29 CFR
parts 101 and 102 as follows:
PART 101--STATEMENTS OF PROCEDURE
1. The authority citation for 29 CFR part 101 continues to read as
follows:
Authority: Sec. 6 of the National Labor Relations Act, as
amended (29 U.S.C. 151, 156), and sec. 522(a) of the Administrative
Procedure Act (5 U.S.C. 552(a)). Section 101.14 also issued under
sec. 2112(a)(1) of Pub. L. 100-236, 28 U.S.C. 2112(a)(1).
2. Sec. 101.39 is revised to read as follows:
Sec. 101.39 Initiation of advisory opinion case.
(a) The question of whether the Board will assert jurisdiction over
a labor dispute which is the subject of a proceeding in an agency or
court of a State or territory is initiated by the filing of a petition
with the Board. This petition may be filed only if:
(1) A proceeding is currently pending before such agency or court;
(2) The petitioner is the agency or court itself; and
(3) The relevant facts are undisputed or the agency or court has
already made the relevant factual findings.
(b) The petition must be in writing and signed. It is filed with
the Executive Secretary of the Board in Washington, DC. No particular
form is required, but the petition must be properly captioned and must
contain the allegations required by Sec. 102.99 of the Board's Rules
and Regulations. None of the information sought relates to the merits
of the dispute. The petition may be withdrawn at any time before the
Board issues its advisory opinion determining whether it would or would
not assert jurisdiction on the basis of the facts before it.
PART 102--RULES AND REGULATIONS
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)), and section 552a(j) and (k) of the Privacy Act (5
U.S.C. 552a(j) and (k). 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 102.24(b) is revised to read as follows:
Sec. 102.24 Motions; where to file; contents; service on other
parties; promptness in filing and response; summary judgment
procedures.
* * * * *
(b) All motions for summary judgment or dismissal shall be filed
with the Board no later than 28 days prior to the scheduled hearing.
Where no hearing is scheduled, or where the hearing is scheduled less
than 28 days after the
[[Page 35174]]
date for filing an answer to the complaint or compliance specification,
whichever is applicable, the motion shall be filed promptly. Any
opposition to the motion shall be filed within 14 days after the
service of the motion for summary judgment on the opposing party. It is
not required that the opposition be supported by affidavits or other
documentary evidence showing that there is a genuine issue for hearing.
The Board in its discretion may deny the motion where the motion itself
fails to establish the absence of a genuine issue, or where the
opposing party's pleadings and/or opposition indicate on their face
that a genuine issue may exist. If the opposing party files no
opposition, the Board may treat the motion as conceded, and summary
judgment or dismissal, if appropriate, shall be entered. The hearing
shall not be automatically postponed upon filing of the motion for
summary judgment. It shall be the responsibility of the party filing
the motion to postpone the hearing (if the General Counsel files the
motion for summary judgment, subject to the provisions of Sec. 102.16
of the Board's rules and regulations) or to file a request for a
postponement with the Regional Director, administrative law judge, and/
or the Board (if the respondent or charging party files the motion).
Sec. 102.98 [Amended]
3. In Sec. 102.98, paragraph (a) and the paragraph designation (b)
are removed.
Sec. 102.99 [Amended]
4. In Sec. 102.99, paragraph (a) is removed and paragraphs (b) and
(c) are redesignated as paragraphs (a) and (b) respectively.
Dated, Washington, DC, June 28, 1996.
By direction of the Board:
John J. Toner,
Executive Secretary.
[FR Doc. 96-16986 Filed 7-3-96; 8:45 am]
BILLING CODE 7545-01-P