[Federal Register Volume 67, Number 228 (Tuesday, November 26, 2002)]
[Rules and Regulations]
[Pages 70695-70696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29741]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102


Procedural Rules Covering Late Filings of Certain Documents in 
NLRB Representation Cases

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: The National Labor Relations Board is revising its rules that 
govern the time for filing certain papers with the Board. The revisions 
are being adopted in order to permit certain documents in NLRB 
representation cases, required to be filed by a certain date, to be 
filed late where the reason for the late filing constitutes ``excusable 
neglect'' and provided that no undue prejudice would result from the 
late filing. The intended effect of the revisions is to avoid the 
inequities that would result from rejecting all late-filed documents 
without regard to the reason why the party missed the filing deadline.

DATES: Effective: November 26, 2002.

FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Acting Executive 
Secretary, National Labor Relations Board, 1099 14th Street, NW., Room 
11600, Washington, DC 20570. Telephone: (202) 273-1067.

SUPPLEMENTARY INFORMATION: At present, the rules of the National Labor 
Relations Board provide for circumstances in which certain documents in 
unfair labor practice cases may be filed late but make no similar 
provision for late filing of documents in NLRB representation cases. 
The Board has concluded that it would be appropriate to provide a 
formal basis for accepting certain late-filed documents in 
representation cases.
    The representation documents permitted to be filed late under the 
new rule are exceptions, requests for review, motions, briefs, and any 
document filed in response to any of the foregoing documents.
    Subsections (a) and (b) of Section 102.111 are retained without 
modification. Subsection (c) of Section 102.111 is modified to provide 
that certain documents in representation cases may be filed late where 
the reason for filing constitutes ``excusable neglect,'' provided that 
no undue prejudice would result from the late filing. This is the same 
standard presently found in this section for late filings in unfair 
labor practice cases, and a standard that was borrowed from Fed. R. 
Civ. P. 60 (b). No attempt is made to define the myriad situations to 
which the rule might apply. Rather, this is a matter that is to be left 
to determination on a case-by-case basis. The rule continues to provide 
that a party seeking to file a document late must file, along with the 
document, a motion stating the grounds relied upon for requesting 
permission to file late, along with affidavits sworn to by individuals 
with personal knowledge of the specific facts relied upon in support of 
the request. Finally, the rule continues to stay the time for 
responding to any untimely filed document until the date a ruling 
issues accepting the untimely document.

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.

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 set forth procedures to be followed by the

[[Page 70696]]

Agency in determining when to accept late-filed documents.

Paperwork Reduction Act

    These rules are not subject to Section 3504(h) of the Paperwork 
Reduction Act (44 U.S.C. 3501) since they do not contain any new 
information collection requirements.

Small Business Regulatory Enforcement Fairness Act

    Because these rules relate to Agency procedure and practice and 
merely modify the agency's filing procedures, the Board has determined 
that the Congressional review provisions of the Small Business 
Regulatory Enforcement Fairness Act (5 U.S.C. 801) do not apply.

List of Subjects in 29 CFR Part 102

    Administrative practice and procedure, Labor management relations.

    To avoid the injustices that could result if the Board had no 
flexibility in deciding to accept late-filed documents in 
representation cases, the Board amends 29 CFR part 102 as follows:

PART 102--RULES AND REGULATIONS, SERIES 8

    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)). 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 102.111(c) is revised to read as follows:


Sec.  102.111  Time computation.

    (c) The following documents may be filed within a reasonable time 
after the time prescribed by these rules only upon good cause shown 
based on excusable neglect and when no undue prejudice would result:
    (1) In unfair labor practice proceedings, motions, exceptions, 
answers to a complaint or a backpay specification, and briefs; and
    (2) In representation proceedings, exceptions, requests for review, 
motions, briefs, and any responses to any of these documents. A party 
seeking to file such documents beyond the time prescribed by these 
rules shall file, along with the document, a motion that states the 
grounds relied on for requesting permission to file untimely. The 
specific facts relied on to support the motion shall be set forth in 
affidavit form and sworn to by individuals with personal knowledge of 
the facts. The time for filing any document responding to the untimely 
document shall not commence until the date a ruling issues accepting 
the untimely document. In addition, cross-exceptions shall be due 
within 14 days, or such further period as the Board may allow, from the 
date a ruling issues accepting the untimely filed documents.

    Dated: November 14, 2002.

    By Direction of the Board.
Lester A. Heltzer,
Acting Executive Secretary, National Labor Relations Board.
[FR Doc. 02-29741 Filed 11-25-02; 8:45 am]
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