[Federal Register Volume 69, Number 7 (Monday, January 12, 2004)]
[Rules and Regulations]
[Pages 1675-1677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-504]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102


Revisions of Regulations Concerning Applicability of Rules 
Governing Motions for Summary Judgment or Dismissal to Motions for 
Default Judgment

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: The Board is revising its Rules and Regulations (Motions), 
(Duties and Powers of Administrative Law Judges), and (Filing and 
Service of Papers), to clarify, consistent with longstanding Board 
policy, that the provisions of those sections applicable

[[Page 1676]]

to motions for summary judgment or dismissal also generally apply to 
motions for default judgment.

DATES: Effective January 12, 2004.

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

SUPPLEMENTARY INFORMATION: Sections 102.24, 102.35, and 102.114 of the 
Board's Rules and Regulations contain provisions governing the filing 
of motions for summary judgment or dismissal with the Board prior to 
the hearing, authorizing administrative law judges to rule on motions 
for summary judgment or dismissal, and prohibiting the filing of 
motions for summary judgment or dismissal by facsimile transmission. 
Historically, the Board has applied those provisions to motions for 
judgment based on the respondent's failure to file an answer to the 
complaint or compliance specification, referring to such motions as 
motions for ``summary judgment.'' However, the term ``default 
judgment'' more accurately describes a judgment issued for failure to 
file an answer,\1\ and the Board has consistently used that term in its 
more recent decisions and orders.\2\ Accordingly, the Board is revising 
the above sections of its rules to incorporate that term and thereby 
clarify that those sections apply to motions for default judgment.
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    \1\ See NLRB v. Aaron Convalescent Home, 479 F.2d 736, 739 (6th 
Cir. 193).
    \2\ See, e.g., Rosedale Fabricators, LLC, 340 NLRB No. 67 
(2003); Hawk One Security, 339 NLRB No. 65 (2003); and Malik Roofing 
Corp., 338 NLRB No. 141 (2003).
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    The revisions to the Board's rules are purely changes of 
nomenclature and do not effect any substantive or procedural change in 
the way that the Board processes or resolves motions for summary 
judgment based on the respondent's failure to file an answer to the 
complaint. The one exception is that motions for default judgment will 
not be subject to the requirement in Section 102.24(b) that motions for 
summary judgment or dismissal be filed no later than 28 days before the 
hearing. The Board's experience is that this time limitation is 
unnecessary in situations where the respondent has failed to file an 
answer to the complaint.

Administrative Procedure Act

    Because the change involves rules of agency organization, procedure 
or practice, no notice of proposed rulemaking is required under Section 
553 of the Administrative Procedure Act (5 U.S.C. 553).

Regulatory Flexibility Act

    Because no notice of proposed rulemaking 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 changes will not have a 
significant economic impact on small business entities since the 
changes are purely changes of nomenclature and merely clarify the rules 
to conform to the actual practice under the existing rules.

Small Business Regulatory Enforcement Fairness Act

    Because the rule changes relate to agency procedure and practice 
and merely clarify the rules to conform to existing practices, the NLRB 
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 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.

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

PART 102--RULES AND REGULATIONS

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

0
2. Section 102.24 is revised to read as follows:


Sec.  102.24  Motions; where to file; contents; service on other 
parties; promptness in filing and response; default judgment 
procedures; summary judgment procedures.

    (a) All motions under Sec. Sec.  102.22 and 102.29 made prior to 
the hearing shall be filed in writing with the Regional Director 
issuing the complaint. All motions for default judgment, summary 
judgment, or dismissal made prior to the hearing shall be filed in 
writing with the Board pursuant to the provisions of Sec.  102.50. All 
other motions made prior to the hearing, including motions to 
reschedule the hearing under circumstances other than those set forth 
in Sec.  102.16(a), shall be filed in writing with the chief 
administrative law judge in Washington, DC, with the associate chief 
judge in San Francisco, California, with the associate chief judge in 
New York, New York, or with the associate chief judge in Atlanta, 
Georgia, as the case may be. All motions made at the hearing shall be 
made in writing to the administrative law judge or stated orally on the 
record. All motions filed subsequent to the hearing, but before the 
transfer of the case to the Board pursuant to Sec.  102.45, shall be 
filed with the administrative law judge, care of the chief 
administrative law judge in Washington, DC, the deputy chief judge in 
San Francisco, California, the associate chief judge in New York, New 
York, or the associate chief judge in Atlanta, Georgia, as the case may 
be. Motions shall briefly state the order or relief applied for and the 
grounds therefor. All motions filed with a Regional Director or an 
administrative law judge as set forth in this paragraph shall be filed 
therewith by transmitting three copies thereof together with an 
affidavit of service on the parties. All motions filed with the Board, 
including motions for default judgment, summary judgment, or dismissal, 
shall be filed with the Executive Secretary of the Board in Washington, 
DC, by transmitting eight copies thereof together with an affidavit of 
service on the parties. Unless otherwise provided in 29 CFR part 102, 
motions and responses thereto shall be filed promptly and within such 
time as not to delay the proceeding.
    (b) All motions for summary judgment or dismissal shall be filed 
with the Board no later than 28 days prior to the scheduled hearing. 
Where no hearing is scheduled, or where the hearing is scheduled less 
than 28 days after the date for filing an answer to the complaint or 
compliance specification, whichever is applicable, the motion shall be 
filed promptly. Upon receipt of a motion for default judgment, summary 
judgment, or dismissal, the Board may deny the motion or issue a notice 
to show cause why the motion should not be granted. If a notice to show 
cause is issued, the hearing, if scheduled, will normally be postponed 
indefinitely. If a party desires to file an opposition to the motion 
prior to issuance of the notice to show cause in order to prevent 
postponement of the hearing, it may do so; Provided however, That any 
such

[[Page 1677]]

opposition shall be filed no later than 21 days prior to the hearing. 
If a notice to show cause is issued, an opposing party may file a 
response thereto notwithstanding any opposition it may have filed prior 
to issuance of the notice. The time for filing the response shall be 
fixed in the notice to show cause. It is not required that either the 
opposition or the response be supported by affidavits or other 
documentary evidence showing that there is a genuine issue for hearing. 
The Board in its discretion may deny the motion where the motion itself 
fails to establish the absence of a genuine issue, or where the 
opposing party's pleadings, opposition and/or response indicate on 
their face that a genuine issue may exist. If the opposing party files 
no opposition or response, the Board may treat the motion as conceded, 
and default judgment, summary judgment, or dismissal, if appropriate, 
shall be entered.

0
3. In Sec.  102.35 paragraph (a) introductory text is republished and 
(a)(8) is revised 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) It shall be the duty of the administrative law judge to inquire 
fully into the facts as to whether the respondent has engaged in or is 
engaging in an unfair labor practice affecting commerce as set forth in 
the complaint or amended complaint. The administrative law judge shall 
have authority, with respect to cases assigned to him, between the time 
he is designated and transfer of the case to the Board, subject to the 
Rules and Regulations of the Board and within its powers:
* * * * *
    (8) To dispose of procedural requests, motions, or similar matters, 
including motions referred to the administrative law judge by the 
Regional Director and motions for default judgment, summary judgment, 
or to amend pleadings; also to dismiss complaints or portions thereof; 
to order hearings reopened; and upon motion order proceedings 
consolidated or severed prior to issuance of administrative law judge 
decisions;
* * * * *

0
4. Section 102.114(g) is revised to read as follows:


Sec.  102.114  Filing and service of papers by parties; form of papers; 
manner and proof of filing or service; electronic filings.

* * * * *
    (g) Facsimile transmissions of the following documents will not be 
accepted for filing: Showing of Interest in Support of Representation 
Petitions, including Decertification Petitions; Answers to Complaints; 
Exceptions or Cross-Exceptions; Briefs; Requests for Review of Regional 
Director Decisions; Administrative Appeals from Dismissal of Petitions 
or Unfair Labor Practice Charges; Objections to Settlements; EAJA 
Applications; Motions for Default Judgment; Motions for Summary 
Judgment; Motions to Dismiss; Motions for Reconsideration; Motions to 
Clarify; Motions to Reopen the Record; Motions to Intervene; Motions to 
Transfer, Consolidate or Sever; or Petitions for Advisory Opinions. 
Facsimile transmissions in contravention of this rule will not be 
filed.
* * * * *

    Dated: January 6, 2004.

    By direction of the Board.
Lester A. Heltzer,
Executive Secretary.
[FR Doc. 04-504 Filed 1-9-04; 8:45 am]
BILLING CODE 7540-01-P