[Federal Register Volume 68, Number 128 (Thursday, July 3, 2003)]
[Rules and Regulations]
[Pages 39836-39837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16549]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102


Revisions of Regulations Concerning Procedures for Filing Appeals 
to Regional Directors' Refusal To Issue, or Reissue, Complaint

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: The General Counsel of the National Labor Relations Board is 
amending regulations concerning the procedures for filing an appeal to 
the General Counsel from a Regional Director's dismissal of an unfair 
labor practice charge. The revisions, which reflect the actual practice 
under existing regulations, relieve persons seeking review from being 
required to file a complete and separate statement apart from the 
Appeal Form (Form 4767) to perfect an appeal before the Office of 
Appeals.

DATES: Effective July 3, 2003.

FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive 
Secretary, 202-273-1067.

SUPPLEMENTARY INFORMATION: Section 102.19(a) of the National Labor 
Relations Board's rules provides that if a Regional Director declines 
to issue complaint, or after withdrawing a complaint refuses to reissue 
it, the person making the charge may obtain review of the action by 
filing an appeal (or seeking an extension of time in which to file an 
appeal) within 14 days of being notified in writing by the Regional 
Director of the reasons for the decision. Significantly, Section 
102.19(a) instructed that the appeal ``shall'' contain a complete 
statement setting forth the facts and reasons upon which it is based.
    Despite the seemingly mandatory language of Section 102.19(a), the 
Office of Appeals has, for many years, accepted the ``Appeal'' form 
(Form 4767) attached to the Regional Director's dismissal letter as an 
appeal and sent acknowledgement to the parties based on a timely filing 
of such form. The policy was developed in response to the reality that 
many individual appellants to not have the language skills to perfect a 
more traditional appeal. Quite often, individuals without benefit of 
counsel have merely sent the form as indicative of an intent to appeal. 
These individuals apparently believe that they have perfected an appeal 
by sending in the form officially attached to the Region's dismissal 
letter. Since seeking review is the last recourse for a charging party 
whose charge has been dismissed, the Office of Appeals has maintained a 
policy that reflects a liberal exercise of discretion in order to 
afford appeal rights to the broadest population. Although an appeal is 
more effective if the party seeking review explains the basis for the 
disagreement with the Region's disposition, failure to include such a 
statement has not been considered by the Office of Appeals a basis for 
rejecting an otherwise timely filed appeal. In Grand Rapids Gravel 
Company, JD-114-02 (issued November 22, 2002),\1\ an administrative law 
judge specifically rejected the assumption ``that the filing of a 
notice of appeal is legally tantamount to the filing of the actual 
appeal.'' Skip op. p.20. In order to avoid future challenges concerning 
the viability of an appeal based only on a notice, the rules and 
regulations and related forms are being revised to reflect the actual 
practice. Because of the obvious utility of such a statement, the 
General Counsel believes most charging parties will continue to submit 
them, even if it is not mandatory. Once a case is appealed, the same 
level of review is afforded despite the brevity of an appeal. Because 
the current practice is fairer to individual, unrepresented charging 
parties, the language applicable to the procedures of filing an appeal 
has been revised to reflect that practice and to make the public aware 
of the actual practice.
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    \1\ Cases No. 7-CA-44094 and 7-CA-44211. The Board adopted the 
decision on February 27, 2003, without exceptions being filed.
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    For these reasons, the General Counsel is eliminating the 
requirement that a complete and separate statement must be submitted in 
order to constitute an appeal from the Regional Director's refusal to 
issue, or reissue, a compliant.

Administrative Procedure Act

    Because the change involves rules of agency organization, procedure 
or practice, the Agency is not required to publish for comment under 
Section 553 of the Administrative Procedure Act (5.U.S.C. 553).

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 to 
apply to these rules. However, even if the Regulatory Flexibility Act 
were to apply, the NLRB certifies that these changes will not have a 
significant economic impact on small business entities since the 
changes

[[Page 39837]]

merely codify the actual practice under the existing rules.

Small Business Regulatory Enforcement Fairness Act

    Because the rule relates to Agency procedure and practice and 
merely modifies the agency's existing filing procedure, the General 
Counsel has determined that the Congressional review provisions of the 
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801) do 
not apply

Paperwork Reduction Act

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

List of Subjects in 29 CFR Part 102

    Administrative practice and procedure, Labor management relations.

0
For the reasons set forth above, the NLRB amends 29 CFR Part 102 as 
follows:

PART 102--RULES AND REGULATIONS, SERIES 8

0
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 5034(c)(1) of the Equal Access to Justice Act, as amended (5 
U.S.C. 504(c)(1)).


0
2. Section 102.19(a) is revised to read as follows:


Sec.  102.19  Appeal to the general counsel from refusal to issue or 
reissue.

    (a) If, after the charge has been filed, the Regional Director 
declines to issue a complaint or, having withdrawn a complaint pursuant 
to Sec.  102.18, refuses to reissue it, he shall so advise the parties 
in writing, accompanied by a simple statement of the procedural or 
other grounds for his action. The person making the charge may obtain a 
review of such action by filing the ``Appeal Form'' with the General 
Counsel in Washington, DC, and filing a copy of the ``Appeal Form'' 
with the Regional Director, within 14 days from the service of the 
notice of such refusal to issue or reissue by the Regional Director, 
except as a shorter period is provided by Sec.  102.81. If an appeal is 
taken the person doing so should notify all other parties of his 
action, but any failure to give such notice shall not affect the 
validity of the appeal. The person may also file a statement setting 
forth the facts and reasons upon which the appeal is based. If such a 
statement is timely filed, the separate ``Appeal Form'' need not be 
served. A request for extension of time to file an appeal shall be in 
writing and be received by the office of General Counsel, and a copy of 
such request filed with the Regional Director, prior to the expiration 
of the filing period. Copies of the acknowledgement of the filing of an 
appeal and of any ruling on a request for an extension of time for 
filing the appeal shall be served on all parties. Consideration of an 
appeal untimely filed is within the discretion of the General Counsel 
upon good cause shown.
* * * * *

    Dated: Washington, DC, June 25, 2003.

    By direction of the Board.
Lester A. Heltzer,
Executive Secretary.
[FR Doc. 03-16549 Filed 7-2-03; 8:45 am]
BILLING CODE 7545-01-M