[Federal Register Volume 61, Number 239 (Wednesday, December 11, 1996)]
[Rules and Regulations]
[Pages 65180-65182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31457]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 101 and 102


Procedures and Rules Governing Summary Judgment Motions and 
Advisory Opinions

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: The National Labor Relations Board (NLRB) issues a final rule 
implementing the proposal set forth in its July 5, 1996 Notice of 
Proposed Rulemaking (NPR) to eliminate provisions in its current rules 
permitting parties to pending state proceedings to petition for an 
advisory opinion on whether the Board would assert jurisdiction under 
its commerce standards. The final rule does not implement the other 
proposal set forth in the Board's NPR which would have also eliminated 
provisions in the current rules requiring issuance of a notice to show 
cause before the Board grants a motion for summary judgment. The Board 
has decided to withdraw that proposal for further study in light of the 
comments and other actions recently taken by the Board to streamline 
the summary judgment process.

EFFECTIVE DATE: January 10, 1997.

FOR FURTHER INFORMATION CONTACT: John J. Toner, Executive Secretary, 
National Labor Relations Board, 1099 14th Street, NW., Room 11600, 
Washington, DC 20570. Telephone: (202) 273-1940.

SUPPLEMENTARY INFORMATION: As part of the Agency's ongoing efforts to 
streamline its operations, on July 5, 1996, the Board issued a Notice 
of Proposed Rulemaking (NPR) proposing certain changes to its rules and 
statements of procedure regarding motions for summary judgment and 
petitions for advisory opinions (61 FR 35172). Specifically, the Board 
proposed: (1) To eliminate provisions in the current rules and 
statements of procedure permitting parties to pending state proceedings 
to petition the Board for an advisory opinion on whether the Board 
would assert jurisdiction under its commerce standards; and (2) to also 
eliminate provisions in the current rules requiring the Board to issue 
a notice to show cause before granting a motion for summary judgment.
    Four comments were received in response to the NPR, three from 
practitioners (Robert J. Janowitz, Kansas City, Missouri; Ira Drogin, 
New York, New York; and Rayford T. Blankenship, Greenwood, Indiana) and 
one from a

[[Page 65181]]

labor organization (AFL-CIO).\1\ Each of these comments are addressed 
below.
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    \1\ The AFL-CIO's comments were submitted by its General 
Counsel, Jonathan P. Hiatt.
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I. Eliminating Party Petitions for Advisory Opinions

    Only two of the four comments addressed this proposal. Attorney 
Robert Janowitz stated that he opposed the proposal on the grounds that 
the proposal would deny parties an avenue of access to the Board; the 
current procedure does not substantially burden the Board since only 
10-15 petitions for advisory opinion are filed by parties each year; 
and eliminating the procedure will increase the risk that state 
agencies will improperly assert jurisdiction, which will require the 
Board to engage in lengthy, expensive and time-consuming litigation 
under NLRB v. Nash-Finch Co., 404 U.S. 138 (1971), to enjoin the state 
agency's improper actions.
    Attorney Ira Drogin also opposed the proposal. He stated that most 
of the 10-15 petitions each year appear to be filed by parties before 
the New York State Employment Relations Board (NYSERB); the NYSERB is 
understaffed and moves extremely slowly; the current procedure 
permitting parties to seek an advisory opinion from the Board works 
well and is expeditious; and this procedure cannot be costly to the 
Board given the low number of petitions that are filed.
    Although we have carefully considered the foregoing comments, we 
have decided to implement this proposal as set forth in the NPR. As 
indicated in the NPR, there is no statutory requirement that the Board 
entertain party petitions for advisory opinions, and the procedure is 
not widely utilized. Indeed, as indicated in the comments submitted by 
attorney Drogin, virtually all of the 10-15 petitions received each 
year are filed by parties to proceedings before the NYSERB.\2\ Further, 
such petitions typically raise issues which have been repeatedly 
addressed in numerous other published advisory opinions and decisions 
issued by the Board. Indeed, almost two-thirds of the 22 advisory 
opinions issued over the last two years addressed essentially the same 
issue: the Board's jurisdictional standard for building management 
companies.\3\ In short, under the current procedure, the Board has been 
unnecessarily forced to issue repeated advisory opinions on the same 
jurisdictional issue with respect to parties before the same state 
board. In our view, this is clearly not an efficient use of the Board's 
limited resources.\4\
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    \2\ Ten of the 12 advisory opinions issued by the Board in 
fiscal year 1995, and all of the 10 opinions issued in fiscal year 
1996, involved parties before the NYSERB.
    \3\ See, e.g., 209 Hull Realty Corp., 322 NLRB No. 43 (Sept. 30, 
1996); MCS Equities, Inc., 321 NLRB No. 78 (June 20, 1996); Center 
County Corp., 320 NLRB No. 114 (March 20, 1996); Phipps Houses 
Services, Inc., et al., 320 NLRB No. 74 (Feb. 28, 1996); and 
Valentine Properties et al., 319 NLRB N. 5 (Sept. 19, 1995).
    \4\ Given that only two comments were filed opposing the Board's 
proposal to eliminate such petitions, it would not appear that the 
majority of practitioners and the public disagree with this view.
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    Further, as indicated in the NPR, there are several other, often 
more expeditious, avenues for obtaining a jurisdictional determination 
or opinion. As noted in the NPR, Sec. 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.
    Moreover, as indicated in the NPR, the instant changes do not 
affect the provisions of current Secs. 102.98(b) and 102.99(b) of the 
Board's rules and Sec. 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 
Sec. 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).
    Given the foregoing alternative procedures, we do not believe, as 
suggested by attorney Janowitz, that eliminating party petitions for 
advisory opinion will substantially increase the risk that state 
agencies will improperly assert jurisdiction. We believe it reasonable 
to presume that state agencies will act properly, and the alternative 
procedures outlined above will ensure that they have access to 
sufficient information to do so in those circumstances where there is a 
genuine and substantial question as to which agency has jurisdiction 
and past published Board opinions or decisions do not provide a 
definitive answer.

II. Eliminating Notice-to-Show-Cause Requirement in Summary 
Judgment Cases

    Three of the four comments addressed this proposal. Attorney 
Janowitz stated that he had no objection to the proposal, but argued 
that the rule should make clear that the General Counsel is required to 
postpone the hearing at the time he files a motion for summary judgment 
with the Board. Management representative Rayford Blankenship, on the 
other hand, opposed the proposal, stating that he believed elimination 
of the notice- to-show-cause procedure would ``add [] to the propensity 
of the NLRB to further abuse respondent[s] by arbitrary and capricious 
actions.''
    Finally, the AFL-CIO also opposed the proposal, but on the opposite 
ground, i.e. on the ground that the proposed change would greatly 
increase the burden on parties opposing respondent summary judgment 
motions. The AFL-CIO argued that under the proposed change the General 
Counsel and charging party will be forced to file a comprehensive 
response to such motions in their initial oppositions and will not have 
the opportunity provided under the current rule to file a further 
opposition brief in the event the Board decides the motion warrants 
full consideration and issues a notice to show cause. The AFL-CIO 
argued that this will give respondents a significant incentive to file 
summary judgment motions for discovery purposes, which will inevitably 
result in a sharp rise in the number of respondent motions, thereby 
increasing the workload not only of the General Counsel, who will be 
forced to file comprehensive responses to every motion, but also of the 
Board, which will have to decide the motions. Finally, the AFL-CIO 
argued that the proposal will also burden the Regions and 
administrative law judges with the responsibility of postponing the 
hearing, one of the traditional functions of the notice to show cause.
    Having carefully considered the foregoing comments, we have decided 
not to implement this proposal at this time. We do not necessarily 
agree with either management representative Blankenship or the AFL-CIO 
that the proposal would unfairly prejudice either respondents or the 
General Counsel. However, we are concerned about the AFL-CIO's 
additional assertions that the proposal would result in more motions 
for summary

[[Page 65182]]

judgment being filed by respondents, thereby placing greater burdens on 
both the Board and the General Counsel, and that the proposal would 
also place greater burdens on the Regions and Judges Division with 
respect to postponement of the hearing. As indicated above and in the 
NPR, the purpose of the proposal was to expedite the summary judgment 
process and reduce the administrative burden on the Board and its staff 
which is responsible for preparing and issuing such notices. If the 
AFL-CIO's predictions are correct, however, and we cannot say that they 
are unfounded, the proposal would actually increase the burdens not 
only on the Board, but also on the Regions and the Judges Division.
    Given the Agency's reduced budget and staffing, we believe it would 
therefore be prudent for the Board to study further the issue before 
implementing the proposed change. It may be that there are other 
alternatives available to the Board which could significantly reduce 
the current burdens associated with issuing such notices. One such 
alternative, simplifying or streamlining the notice itself by reducing 
its length and eliminating unnecessary text, has recently been 
implemented based on the recommendation of Agency staff. Other 
alternatives will continue to be studied as part of the Agency's 
ongoing streamlining efforts.
    As indicated in the NPR, although the Agency decided to give notice 
of proposed rulemaking with respect to the proposed rule changes, the 
changes involve rules of agency organization, procedure or practice and 
thus no notice of proposed rulemaking was required under section 553 of 
the Administrative Procedure Act (5 U.S.C. 553). Accordingly, the 
Regulatory Flexibility Act (5 U.S.C. 602 et seq.), 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, 29 CFR parts 101 and 102 are 
amended 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. Section 101.39 is revised to read as follows:


Sec. 101.39   Initiation of advisory opinion case.

    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 section 102.99 of the Board's Rules 
and Regulations. None of the information sought may relate 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)).

Sec. 102.98   [Amended]

    2. Section 102.98, paragraph (a) and the paragraph designation (b) 
are removed.


Sec. 102.99   [Amended]

    3. In Sec. 102.99, paragraph (a) is removed and paragraphs (b) and 
(c) are redesignated paragraphs (a) and (b) respectively.

    Dated: Washington, DC, December 6, 1996.

    By direction of the Board.
John J. Toner,
Executive Secretary.
[FR Doc. 96-31457 Filed 12-10-96; 8:45 am]
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