[Federal Register Volume 62, Number 43 (Wednesday, March 5, 1997)]
[Rules and Regulations]
[Pages 9930-9932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5284]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102


Issuance and Service of Subpoenas

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: The Board is amending its rules to provide that the Executive 
Secretary may sign and issue subpoenas on behalf of the Board or any 
Member thereof and that the date of service of the subpoena for 
purposes of computing the 5-day period for filing a petition to revoke 
shall be construed as the date the subpoena is received.

EFFECTIVE DATE: March 5, 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: For approximately the last three 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 initiative authorizing the use of 
settlement judges and providing judges with the discretion to dispense 
with briefs and to issue bench decisions,

[[Page 9931]]

which was published as a final rule on February 23, 1996, following a 
one-year experimental period (61 FR 6940). See also the Board's recent, 
December 11, 1996, notice implementing certain proposed changes in the 
Board's advisory opinion rules and procedures (61 FR 65180).
    Another, more technical, change that the Board has considered at 
the suggestion of Agency personnel involves the current process for 
issuing subpoenas. Under the current procedure, the Board supplies 
preprinted blank subpoenas bearing a seal and the facsimile signature 
of one of the current Board Members to the regional offices which, as 
required by Section 11 of the Act, automatically issue the subpoenas to 
the person requesting the subpoena. Although this procedure is 
perfectly proper (see Lewis v. NLRB, 357 U.S. 10, 14-15 (1958)), 
experience has shown that it may not be the most efficient procedure 
available to the Agency. The problem is that, because the Board Members 
serve out limited, 5-year terms, the preprinted subpoena forms 
containing a particular Board Member's facsimile signature will only be 
useable for the length of that Member's time in office, and will have 
to be destroyed and replaced after the Board Member's term expires or 
the Member otherwise vacates the position.
    The Agency has attempted to minimize the number of unused subpoena 
forms which must be destroyed after a Board Member leaves by ordering a 
limited number of preprinted forms containing the facsimile signature 
of a particular Board Member, and by using those forms exclusively, 
before printing or using the forms containing the facsimile signature 
of the next most senior Board Member (i.e., the Board Member whose term 
is next scheduled to expire). However, notwithstanding these efforts, 
literally thousands of subpoena forms containing a former Board 
Member's facsimile signature often remain unused following the Member's 
departure. For example, at the conclusion of Member Cohen's term in 
August 1996, there were over 6,000 unused preprinted subpoena forms 
containing his facsimile signature stored at the Washington 
Headquarters alone, not counting those stored at the Agency's 50 
regional and subregional offices.
    In an effort to eliminate or at least reduce such an obvious waste 
of its increasingly scarce resources,\1\ the Board has decided to amend 
Sections 102.31(a) and 102.66(c) of the rules to provide that the 
Board's Executive Secretary may sign and issue the subpoenas on behalf 
of the Board or any Member thereof.\2\ As a career official, the 
Executive Secretary can reasonably be expected to serve for a longer 
period of time than any one Board Member.\3\ Thus, it is expected that, 
by providing for issuance of subpoenas by the Executive Secretary, the 
frequency in number of times that the preprinted subpoena forms will 
need to be updated with a new facsimile signature will be significantly 
reduced.\4\
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    \1\ The per-unit cost of the subpoenas to the Agency is about 4 
or 5 cents, depending on the particular subpoena form used, or about 
$1800 to $2500 per 50,000. Although this is obviously a relatively 
small cost in the Agency's overall budget, the Board recognizes its 
responsibility in these times of budgetary cutbacks to implement 
reasonable cost-saving measures wherever it may responsibly do so, 
regardless of their potential size or impact.
    \2\ Such a delegation is clearly lawful since, as indicated 
above, the issuance of subpoenas is mandatory under the NLRA, does 
not involve the exercise of any discretion, and is therefore a 
purely ministerial act. See Lewis v. NLRB, 357 U.S.C. 10, 14-15 
(1958).
    \3\ For example, former Executive Secretary John C. Truesdale 
served in that position for a total of approximately 18 of the last 
25 years (June 6, 1972-Oct. 25, 1997; Jan. 26, 1981-Jan. 23, 1994; 
and March 4, 1994-Dec. 22, 1994). Moreover, during four separate 
periods in the other 7 years, he served as a Board Member (Oct. 25, 
1977-Aug. 27, 1980; Oct. 23, 1980-Jan. 25, 1981; Jan. 24, 1994-March 
3, 1994; and Dec. 23, 1994-Jan. 3, 1996). Thus, if the instant new 
rule had been in effect during the past 25 years, his signature 
would have been valid not only during the 18 years that he served as 
the Executive Secretary, but also during those periods in the other 
7 years when he was serving as a Board Member. Thus, no change in 
the subpoena form would have been necessary for virtually the entire 
25-year period.
    \4\ The agency, of course, will also continue to study other 
possible ways to reduce the costs associated with issuing subpoenas, 
such as eliminating the carbon copy and computerizing the printing 
process so that the subpoenas may be printed on an as-needed basis.
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    Finally, the Board has also decided to clarify Secs. 102.31(b) and 
102.66(c) of the rules by adding a provision in each section stating 
that the ``date of service'' of a subpoena for purposes of computing 
the 5-day period for filing a petition to revoke shall be construed as 
the date the subpoena was received. Although this has long been the 
Board's policy, it has never been clearly articulated by the Board in a 
published decision.\5\ Further, it is an issue that has arisen with 
some frequency in recent years. Accordingly, the Board has decided to 
revise the foregoing sections to clearly set forth the Board's policy 
in this regard.
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    \5\ But see the administrative law judge's decision in Champ 
Corp., 291 NLRB 803, 817 (1988), citing NLRB v. C.E. Strickland, 220 
F. Supp. 661 (D.C. Tenn. 1962), affd. 321 F.2d 811 (6th Cir. 1963). 
Compare Section 102.112 of the Board's rules, which generally 
provides that the date of service under the Board's rules shall be 
the day when the matter served is deposited in the mail or with a 
private delivery service, is personally delivered, or, if by 
fascimile transmission, when the transmission is received.
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Regulatory Requirements

    This rule relates solely to agency organization, procedure and 
practice, and will not have a significant economic impact on a 
substantial number of small businesses or impose any information 
collection requirements.
    Accordingly, the Agency finds that prior notice and comment is not 
required for these rules and that good cause exists for waiving the 
general requirement of delaying the effective date under the 
Administrative Procedure Act (5U.S.C. 553), and that the rules are not 
subject to the Regulatory Flexibility Act (5 U.S.C. 601), Small 
Business Regulatory Enforcement Act (5 U.S.C. 801), Paperwork Reduction 
Act (44 U.S.C. 3501), or Executive Order 12866.

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

    1. The authority citation for 29 CFR part 102 continues to read as 
follows:

    Authority: Section 6, National Labor Relations Act, as amended 
929 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 102.31 is amended as follows:
    (a) Paragraph (a) is revised;
    (b) Paragraph (b) is amended by removing the first sentence of that 
paragraph and adding two sentences in its place as set forth below.


Sec. 102.31  Issuance of subpenas; petitions to revoke subpenas; 
rulings on claim of privilege against self-incrimination; supena 
enforcement proceedings; right to inspect and copy data.

    (a) The Board, or any Member thereof, shall, on the written 
application of any party, forthwith issue subpoenas requiring the 
attendance and testimony of witnesses and the production of any 
evidence, including books, records, correspondence, or documents, in 
their possession or under their control. The Executive Secretary shall 
have the authority to sign and issue any such subpoenas on behalf of 
the Board or any Member thereof. Applications for

[[Page 9932]]

subpoenas, if filed prior to the hearing, shall be filed with the 
Regional Director. Applications for subpoenas filed during the hearing 
shall be filed with the administrative law judge. Either the Regional 
Director or the administrative law judge, as the case may be, shall 
grant the application on behalf of the Board or any Member thereof. 
Applications for subpoenas may be made ex parte. The subpoena shall 
show on its face the name and address of the party at whose request the 
subpoena was issued.
    (b) Any person served with a subpoena, whether ad testificandum or 
duces tecum, if he or she does not intend to comply with the subpoena, 
shall, within 5 days after the date of service of the subpoena, 
petition in writing to revoke the subpoena. The date of service for 
purposes of computing the time for filing a petition to revoke shall be 
the date the subpoena is received. * * *
* * * * *
    3. Paragraph (c) of Sec. 102.66 is amended by removing the first 
four sentences of that paragraph and adding the following seven 
sentences in their place as set forth below:


Sec. 102.66  Introduction of evidence; rights of parties at hearing; 
subpoenas.

* * * * *
    (c) The Board, or any Member thereof, shall, on the written 
application of any party, forthwith issue subpoenas requiring the 
attendance and testimony of witnesses and the production of any 
evidence, including books, records, correspondence, or documents, in 
their possession or under their control. The Executive Secretary shall 
have the authority to sign and issue any such subpoenas on behalf of 
the Board or any Member thereof. Any party may file applications for 
subpoenas in writing with the Regional Director if made prior to 
hearing, or with the hearing officer if made at the hearing. 
Applications for subpoenas may be made ex parte. The Regional Director 
or the hearing officer, as the case may be, shall forthwith grant the 
subpoenas requested. Any person served with a subpoena, whether ad 
testificandum or duces tecum, if he or she does not intend to comply 
with the subopoena, shall, within 5 days after the date of service of 
the subpoena, petition in writing to revoke the subpoena. The date of 
service for purposes of computing the time for filing a petition to 
revoke shall be the date the subpoena is received. * * *
* * * * *
    Dated, Washington, D.C., February 27, 1997.

    By direction of the Board.
John J. Toner,
Executive Secretary.
[FR Doc. 97-5284 Filed 3-4-97; 8:45 am]
BILLING CODE 7545-01-P