[Federal Register Volume 67, Number 4 (Monday, January 7, 2002)]
[Rules and Regulations]
[Pages 656-657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-80]



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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102


Revisions of Regulations Governing Stipulated Records Filed With 
the Board or With the Board's Administrative Law Judges

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: The National Labor Relations Board is amending its regulations 
governing stipulated record cases to delete an outdated procedure for 
filing stipulated records with its Administrative Law Judges and to 
substitute an alternative procedure governing stipulated record cases 
filed either with the Board or with an Administrative Law Judge.

DATES: Effective: January 7, 2002.

FOR FURTHER INFORMATION CONTACT: John J. Toner, Executive Secretary, 
(202) 273-1936.

SUPPLEMENTARY INFORMATION: Section 102.35(a)(9) of the National Labor 
Relations Board's rules provides for a limited form of stipulation 
before Administrative Law Judges in which, following a hearing, 
transcripts are dispensed with and exceptions to findings of fact are 
waived. 29 CFR 102.35(a)(9). This provision was adopted several decades 
ago. It is never used today and was not used much at the time it was 
adopted. For this reason, the Board has decided to eliminate this 
procedure from its rules.
    The Board has, on occasion, permitted parties to file stipulated 
records directly with it along with requests that the stipulated cases 
be decided without an evidentiary hearing. Typically these are cases in 
which the facts are not in dispute and the parties wish expedited 
consideration of what they perceive to be purely legal issues. Because 
this practice has never been memorialized in the Board's rules, the 
Board is adding it now. The same practice will also be made available 
in proceedings before Administrative Law Judges.
    In describing the procedures for submitting a stipulation of facts, 
the rule states that a statement of the issues presented should be set 
forth in the stipulation and that each party should also submit a short 
statement (no more than three pages) of its position on the issues. The 
Board's experience with stipulations of facts has been that, while the 
parties know the contested issues and their positions on those issues, 
a mere stipulation of facts by itself may not be sufficient to convey 
that important information to the Board. Including a statement of 
issues in the stipulation of facts and submitting a short statement of 
each party's position on those issues will assist the Board in 
determining whether it wishes to decide a case without the benefit of a 
full hearing and a judge's decision.
    For these reasons, the Board has decided to eliminate the former 
Section 102.35(a)(9) and subtitute for it a brief statement outlining 
the procedures for submitting stipulated records to it or to its 
Administrative Law Judges.

Regulatory Flexibility Act

    Because no notice of proposed rule-making is required for 
procedural rules, the requirements of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.) pertaining to regulatory flexibility analysis do 
not apply to these rules. However, even if the Regulatory Flexibility 
Act were to apply, the NLRB certifies that these rules will not have a 
significant economic impact on a substantial number of small business 
entities as they merely permit parties to a Board proceeding to submit 
requests to have cases decided on a stipulated record.

Executive Order 12866

    The regulatory review provisions of Executive Order 12866 do not 
apply to independent regulatory agencies. However, even if they did, 
the proposed changes in the Board's rules would not be classified as 
``significant rules''' under Section 6 of Executive Order 12866, 
because they will not result in (1) an annual effect on the economy of 
$100 million or more; (2) a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions; or (3) significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic or foreign markets. Accordingly, no 
regulatory impact assessment is required.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States based companies to 
compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act

    This part does not impose any reporting or record keeping 
requirements under the Paperwork Reduction Act of 1995.

List of Subjects in 29 CFR Part 102

    Administrative practice and procedure, Labor management relations.

    For the reasons set forth in the preamble, the National Labor 
Relations Board is amending 29 CFR Chapter I, Part 102, as follows:

PART 102--RULES AND REGULATIONS, SERIES 8

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

    Authority: Sec. 6, National Labor Relations Act, as amended (29 
U.S.C. 151, 156). Section 102.117 also issued under sec. 
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 
552(a)(4)(A)), and section 442a(j) and (k) of the Privacy Act (5 
U.S.C. 55a(j) and (k)). Sections 102.143 through 102.155 also issued 
under sec. 504(c)(1) of the Equal Access to Justice Act as amended 
(5 U.S.C. 504(c)(1)).

    2. Section 102.35 is amended by revising the heading and by further 
revising paragraph (a)(9) to read as follows:


Sec. 102.35  Duties and powers of administrative law judges; 
stipulations of cases to administrative law judges or to the Board; 
assignment and powers of settlement judges.

    (a) * * *
    (9) To approve stipulations, including stipulations of facts that 
waive a hearing and provide for a decision by the administrative law 
judge. Alternatively, the parties may agree to waive a hearing and 
decision by an administrative law judge and submit directly to the 
Executive Secretary a stipulation of facts, which, if approved, 
provides for a decision by the Board. A statement of the issues 
presented should be set forth in the stipulation of facts and each 
party should also submit a short statement (no

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more than three pages) of its position on the issues. If the 
administrative law judge (or the Board) approves the stipulation, the 
administrative law judge (or the Board) will set a time for the filing 
of briefs. In proceedings before an administrative law judge, no 
further briefs shall be filed except by special leave of the 
administrative law judge. In proceedings before the Board, answering 
briefs may be filed within 14 days, or such further period as the Board 
may allow, from the last date on which an initial brief may be filed. 
No further briefs shall be filed except by special leave of the Board. 
At the conclusion of the briefing schedule, the judge (or the Board) 
will decide the case or make other disposition of it.
* * * * *

    Dated, Washington, DC, December 21, 2001.

    By direction of the Board.
John J. Toner,
Executive Secretary, National Labor Relations Board.
[FR Doc. 02-80 Filed 1-4-02; 8:45 am]
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