[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]


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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.

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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\
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    \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.

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[[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.
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    \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.
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    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