Modifications to Role of National Labor Relations Board's Administrative Law Judges Including: Assignment of Administrative Law Judges as Settlement Judges; Discretion of Administrative Law Judges to Dispense With Briefs, To Hear Oral Argument in Lieu of Briefs, and To Issue Bench Decisions

NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102

Modifications to Role of National Labor Relations Board's

Administrative Law Judges Including: Assignment of Administrative Law

Judges as Settlement Judges; Discretion of Administrative Law Judges to

Dispense With Briefs, To Hear Oral Argument in Lieu of Briefs, and To

Issue Bench Decisions

AGENCY: National Labor Relations Board.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The National Labor Relations Board (NLRB) proposes to amend

its rules with respect to the role that its Administrative Law Judges

play in facilitating the expeditious resolution of unfair labor

practice proceedings. First, the NLRB proposes to amend Section 102.35

of the rules to give the Chief Administrative Law Judge discretion to

assign a judge other than the trial judge to conduct settlement

negotiations with the parties, and to give the settlement judge certain

powers necessary to engage effectively in those settlement efforts.

Second, the NLRB proposes modifying Section 102.35(j), Section 102.42,

and Section 102.45(a) to give administrative law judges assigned to

hear a case the discretion to dispense with briefs, to hear oral

argument in lieu of briefs, and to issue bench decisions.

DATES: Comments must be received on or before October 7, 1994.

ADDRESSES: Comments should be sent to: Office of the Executive

Secretary, National Labor Relations Board, 1099 14th Street, NW., Room

11602, Washington, DC 20570 Telephone: (202) 273-1934.

FOR FURTHER INFORMATION CONTACT:John C. Truesdale, Executive Secretary.

Telephone: (202) 273-1934.

SUPPLEMENTARY INFORMATION:

I. Settlement Judges

The National Labor Relations Board proposes to amend Sec. 102.35 of

its Rules and Regulations, 29 CFR 102.35, to include provisions for the

assignment of administrative law judges to serve as settlement judges.

The proposal is modeled on Recommendation 88-5 of the Administrative

Conference of the United States, 1 CFR 305.88-5, and with an awareness

of the successful implementation of similar procedures by other

agencies. The proposal would supplement, rather than supplant,

settlement techniques traditionally used by the NLRB and its judges.

The proposal permits the chief administrative law judge in

Washington, or his deputies and associates in other offices, to appoint

a settlement judge, who shall be other than the trial judge assigned to

the case, with powers to convene and preside over settlement

conferences between the parties in an effort to facilitate settlements.

Decisions whether to assign a settlement judge, and when to

terminate such participation, are left to the discretion of the

assigning judge and are not appealable to the Board.

The importance of choosing wisely whether and when to assign a

settlement judge can be crucial to the prospects for success in

achieving a settlement. Therefore, the rules require the assigning

judge to consider, among other factors, the likelihood that a

settlement may occur, the good faith of any person making a request for

assignment of a settlement judge, and whether the assignment is

otherwise feasible. Among the factors which the assigning judge may

consider would be the effect of an assignment upon agency resources,

whether the assignment is being sought for, or would have the effect

of, delaying the proceeding, and whether the assignment might tend to

undermine other pending settlement efforts. Unlike the rules of some

other agencies, these proposed regulations would not permit a party to

veto the use of the procedure. However, as a practicable matter, a

party's opposition to the use of the procedure is a factor that the

assigning judge may consider in assessing whether the appointment of a

settlement judge is likely to resolve the dispute.

The preferred method of conducting settlement conferences is to

have the parties or their representatives attend in person, since such

conferences are most likely to prove fruitful. However, the rule does

not preclude holding settlement conferences by telephone in

circumstances in which personal attendance at the conference is not

feasible.

Discussions between the parties and the settlement judge are to be

held confidential and are not admissible in proceedings before the

Board except by stipulation of the parties.

Finally, the proposed rule provides that any settlement reached

under the auspices of a settlement judge is subject to approval in

accordance with the agency's existing procedures for approving and

reviewing the approval of settlements. These procedures are set forth

in Section 101.9 of the Board's Statements of Procedure, 29 CFR 101.9.

II. Briefs, Oral Argument, Recommendations, and Bench Decisions

As part of its ongoing review of ways in which unfair labor

practice proceedings can be revamped to move the cases more

expeditiously, the National Labor Relations Board proposes to give its

administrative law judges the discretion, in appropriate cases, to

dispense with post-hearing briefs or proposed findings and conclusions,

to hear oral argument, and to issue bench decisions. These changes are

proposed in the form of amendments to Sec. 102.35(j) (renumbered to

102.35(b)(10)), Sec. 102.42, and Sec. 102.45(a) of the Board's Rules

and Regulations.

Under the proposals, an administrative law judge shall have the

discretion to decide whether or not briefs are needed in any case

before rendering a decision. If the judge decides that briefs are not

required, the parties are to be given the opportunity to present

proposed findings and conclusions, either orally or in writing, as well

as oral argument. In any case in which the judge believes that written

briefs or proposed findings of fact and conclusions may not be

necessary, he or she is to notify the parties at the opening of the

hearing or as soon thereafter as practicable, in order to alert the

parties to the possibility that they may be called upon to present

their positions orally, rather than in writing, at the close of the

hearing.

The proposal also gives administrative law judges the authority to

render bench decisions, delivered within 72 hours after conclusion of

oral argument. These decisions, like any other decisions, must be

rendered in conformity with the provisions of the Administrative

Procedure Act, 5 U.S.C. 557.

The NLRB is mindful that many cases are not suitable for decision

from the bench. If inappropriate cases were selected for this sort of

summary disposition, the resulting remands could delay the final

disposition of the cases. On the other hand, if administrative judges

choose the cases carefully, the benefits of expediting those cases

would outweigh the delays in the few cases where the procedure is

improvidently utilized.

The Board has not tried to spell out, in the proposed rules, the

circumstances in which these procedures should be utilized. Rather, it

anticipates that monitoring experience with the implementation of the

proposal is the best way to refine the circumstances for which the

procedures are best suited. Nevertheless, in order to provide some

guidance in the initial application of these rule changes, the Board

suggests that cases in which it may be appropriate to dispense with

briefs and/or to issue bench decisions would include, for example: a

case that turns on a very straightforward credibility issue; cases

involving one-day hearings; cases involving a well-settled legal issue

where there is no dispute as to the facts; short record single-issue

cases; or cases in which a party defaults by not appearing at the

hearing. In more complex cases, including cases with lengthy records,

utilizing these procedures could create situations in which the Board

or the reviewing courts might find it necessary to remand a case for

more thoughtful consideration.

As required by the Regulatory Flexibility Act (5 U.S.C. 601 et

seq.) the NLRB certifies that this rule will not have a significant

impact on small business entities.

List of Subjects in 29 CFR Part 102

Administrative practice and procedure, Labor management relations.

For the reasons set forth above, the NLRB proposes to amend 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 102.35 is revised to read as follows:

Sec. 102.53 Duties and powers of administrative law judges; 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:

(1) To administer oaths and affirmations;

(2) To grant applications for subpoenas;

(3) To rule upon petitions to revoke subpoenas;

(4) To rule upon offers of proof and receive relevant evidence;

(5) To take or cause depositions to be taken whenever the ends of

justice would be served thereby;

(6) To regulate the course of the hearing and, if appropriate or

necessary, to exclude persons or counsel from the hearing for

contemptuous conduct and to strike all related testimony of witnesses

refusing to answer any proper question;

(7) To hold conferences for the settlement or simplification of the

issues by consent of the parties, but not to adjust cases;

(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 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;

(9) To approve a stipulation voluntarily entered into by all

parties to the case which will dispense with a verbatim written

transcript of record of the oral testimony adduced at the hearing, and

which will also provide for the waiver by the respective parties of

their right to file with the Board exceptions to the findings of fact

(but not to conclusions of law or recommended orders) which the

administrative law judge shall make in his decisions;

(10) To make and file decisions, including bench decisions

delivered within 72 hours after conclusion of oral argument, in

conformity with Public Law 89-554, 5 U.S.C. Sec. 557;

(11) To call, examine, and cross-examine witnesses and to introduce

into the record documentary or other evidence;

(12) To request the parties at any time during the hearing to state

their respective positions concerning any issue in the case or theory

in support thereof;

(13) To take any other action necessary under the foregoing and

authorized by the published Rules and Regulations of the Board.

(b) Upon the request of any party or the judge assigned to hear a

case, or on his or her own motion, the chief administrative law judge

in Washington, DC, the deputy chief judge in San Francisco, the

associate chief judge in Atlanta, or the associate chief judge in New

York may assign a judge who shall be other than the trial judge to

conduct settlement negotiations. In exercising his discretion, the

chief, deputy chief, or associate chief judge making the assignment

will consider, among other factors, whether there is reason to believe

that resolution of the dispute is likely, the request for assignment of

a settlement judge is made in good faith, and the assignment is

otherwise feasible.

(1) The settlement judge shall convene and preside over conferences

and settlement negotiations between the parties, assess the

practicalities of a potential settlement, and report to the chief,

deputy, or associate the status of settlement negotiations,

recommending continuation or termination of the settlement

negotiations. Where feasible settlement conferences shall be held in

person.

(2) The settlement judge may require that the attorney or other

representative for each party be present at settlement conferences and

that the parties or agents with full settlement authority also be

present or available by telephone.

(3) Participation of the settlement judge shall terminate upon the

order of the chief, deputy, or associates issued after consultation

with the settlement judge. The conduct of settlement negotiations shall

not unduly delay the hearing.

(4) All discussions between the parties and the settlement judge

shall be confidential. The settlement judge shall not discuss any

aspect of the case with the trial judge, and no evidence regarding

statements, conduct, offers of settlement, and concessions of the

parties made in proceedings before the settlement judge shall be

admissible in any proceeding before the Board, except by stipulation of

the parties. Documents disclosed in the settlement process may not be

used in litigation unless voluntarily produced or obtained pursuant to

subpoena.

(5) No decision of a chief, deputy, or associate concerning the

assignment of a settlement judge or the termination of a settlement

judge's assignment shall be appealable to the Board.

(6) Any settlement reached under the auspices of a settlement judge

shall be subject to approval in accordance with the provisions of

Section 101.9 of the Board's Statements of Procedure.

3. Section 102.42 is revised to read as follows:

Sec. 102.42 Filings of briefs and proposed findings with the

administrative law judge and oral argument at the hearing.

Any party shall be entitled, upon request, to a reasonable period

at the close of the hearing for oral argument, which may include

presentation of proposed findings and conclusions, and shall be

included in the stenographic report of the hearing. In the discretion

of the administrative law judge, any party may, upon request made

before the close of the hearing, file a brief or proposed findings and

conclusions, or both, with the administrative law judge, who may fix a

reasonable time for such filing, but not in excess of 35 days from the

close of the hearing. Requests for further extensions of time shall be

made to the chief administrative law judge in Washington, DC, to the

deputy chief judge in San Francisco, California, to the associate chief

judge in New York, New York, or to the associate chief judge in

Atlanta, Georgia, as the case may be. Notice of the request for any

extension shall be immediately served on all other parties, and proof

of service shall be furnished. Three copies of the brief or proposed

findings and conclusions shall be filed with the administrative law

judge, and copies shall be served on the other parties, and a statement

of such service shall be furnished. In any case in which the

administrative law judge believes that written briefs or proposed

findings of fact and conclusions may not be necessary, he or she shall

notify the parties at the opening of the hearing or as soon thereafter

as practicable that he or she may wish to hear oral argument in lieu of

briefs.

4. In Section 102.45, paragraph (a) is revised to read as follows:

Sec. 102.45 Administrative law judge's decision; contents; service;

transfer of case to the Board; contents of record in case.

(a) After hearing for the purpose of taking evidence upon a

complaint, the administrative law judge shall prepare a decision. Such

decision shall contain findings of fact, conclusions, and the reasons

or basis therefor, upon all material issues of fact, law, or discretion

presented on the record, and shall contain recommendations as to what

disposition of the case should be made, which may include, if it be

found that the respondent has engaged in or is engaging in the alleged

unfair labor practices, a recommendation for such affirmative action by

the respondent as will effectuate the policies of the Act. The

administrative law judge shall file the original of his decision with

the Board and cause a copy thereof to be served on each of the parties.

If the administrative law judge delivers an oral decision from the

bench, promptly upon receiving the transcript the judge shall certify

the accuracy of the pages of the transcript containing the decision;

file with the Board a certified copy of those pages, together with any

supplementary matter the judge may deem necessary to complete the

decision; and cause a copy thereof to be served on each of the parties.

Upon the filing of the decision, the Board shall enter an order

transferring the case to the Board and shall serve copies of the order,

setting forth the date of such transfer, on all the parties. Service of

the administrative law judge's decision and of the order transferred

the case to the Board shall be complete upon mailing.

* * * * *

Dated, Washington, DC, September 2, 1994.

By direction of the Board:\1\

---------------------------------------------------------------------------

\1\Chairman Gould and Members Stephens, Devaney, Browning, and

Cohen. A separate statement by Members Stephens and Cohen is

attached.

---------------------------------------------------------------------------

John C. Truesdale,

Executive Secretary.

Statement of Members Stephens and Cohen

The following statement pertains to the proposed rules

concerning briefs, oral argument, and bench decisions.\2\ Although

we join our colleagues in seeking public comment on these proposed

rules, we wish to express our separate reasons for doing so.

---------------------------------------------------------------------------

\2\With respect to the proposed rules concerning settlement

judges, we agree fully with our colleagues.

---------------------------------------------------------------------------

In our view, the Board should propose a given rule only if it

believes that the rule has at least prima facie merit. Phrased

differently, the Agency should not be the proponent of a rule which,

in its view, is lacking in such merit.

Because of these considerations, we are somewhat ambivalent

about joining our colleagues in proposing the instant rule. On the

one hand, we applaud, and share, our colleagues' desire to expedite

the decisional process as much as possible. On the other hand, we

are concerned that the proposed rule may jeopardize such important

values as fairness, procedural due process and the quality of

decisions.

For the reasons set forth below, we are presently inclined to

believe that the latter factors outweigh the former. However, the

issue at this juncture is whether the matter is so clear as to

virtually compel the conclusion that the proposed rules lack prima

facie merit. Because this issue is not free from doubt, we join our

colleagues in submitting the rules for public comment. However, we

believe that we must candidly state our misgivings about the

proposed rules. In that way, those members of the public who wish to

support the rules will know precisely the factors that they must

address if they are to gain our approval. We look forward to

receiving their comments, and those of others, and we remain open to

persuasion.

A proper understanding of these issues must begin with the

critical fact that NLRB proceedings are conducted without pre-trial

discovery. Thus, each party learns of the other's case only as the

trial unfolds. Under the proposed rule, promptly at the end of this

unfolding process, the attorney or other representative would have

to proceed without opportunity for assimilation, research,

organization and reflection. In such circumstances, counsel may be

unable to do an effective job. That would be a disservice not only

to the client, but also to the process.

Although the proposed rule provides for a ``reasonable period''

for oral argument, it does not provide for a reasonable period, or

any period, to perform the tasks enumerated above. Further, even if

the judge were to grant a recess for counsel to prepare oral

argument, that may not solve the problem. A recess period for

preparation may not be an adequate substitute for the time-honored

practice of reading a transcript, researching issues by use of a

library and computer technology, reflecting upon the relationship of

pieces of evidence, studying precedent, and writing a cogent,

organized, and persuasive brief.

Further, if counsel has no opportunity to perform in the

traditional way, there is a danger that relevant points may be

overlooked. The consequences of this can be severe. If a party fails

to make a point to the judge, that party may well have waived its

right to make the point to the Board, See e.g., Hydro Logistics,

Inc., 287 NLRB 602, n.1 (1987), Local 520, IUOE (Mautz & Oren,

Inc.), 298 NLRB 1098, n.3 (1990). And, if the point cannot be made

to the Board, the party will be unable to raise it to the reviewing

court. See Section 10(e) of the Act.

Further, an inadequate presentation to the judge may make more

difficult the process of decision-making by the judge and by the

reviewing Board and courts. The decisional process is facilitated by

the use of excellent and well-organized briefs. The process becomes

more difficult if one does not have the assistance of such briefs.

The proposal for bench decisions also raises concerns. Indeed,

the difficulties in dispensing with written briefs may be compounded

when the judges, without the benefit of such briefs, render bench

decisions. In our view, the absence of guiding briefs may have a

negative impact on quality in the decisional process. Further,

unless the Board, upon review, supplies the missing ingredients--

itself a time-consuming process--the courts, in reviewing Board

decisions, may have problems in at least some of the cases which

they review.

Our colleagues have wisely suggested limitations on the proposed

procedures, i.e., confining their use to relatively simple cases.

However, these limitations presently are not set forth in the rule.

Further, even if the judge seeks to abide by the limitations, and

chooses what appears to be a ``simple'' case, that case may turn out

to be not so simple after all. As set forth above, the absence of

pre-trial discovery means that counsel and the judges hear the

evidence for the first time at trial. Consequently, although a case

might appear, at first blush, to present only a straight-forward

credibility issue or a single well-settled legal issue, it may, upon

reflection, involve much more. Although the Board could reverse and

remand when the procedures have been used inappropriately, this

would only add time to the process.

To be sure, we are in favor of expediting the process. In

appropriate cases, we would encourage judges to set short time-

periods for the receipt of briefs. But, in our quest for speed, we

must be careful not to undermine the goals of fairness in our

decisional procedure and excellence in our decisional product.

[FR Doc. 94-22177 Filed 9-7-94; 8:45 am]

BILLING CODE 7545-01-M