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: Experimental modification of rules.

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summary: The National Labor Relations Board (NLRB) issues a document

that it will begin a one-year experimental modification of its rules

with respect to the role that its Administrative Law Judges (ALJs) play

in facilitating the expeditious resolution of unfair labor practice

proceedings. During the experimental period, the NLRB will amend its

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. The NLRB

will also, during the experimental period, modify its rules to give

ALJs assigned to hear a case the discretion to dispense with briefs, to

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

rule changes will expire at the end of the one-year experimental period

absent renewal by the Board.

effective dates: February 1, 1995 through January 31, 1996. The rule

changes will be effective on February 1, 1995 and apply to all unfair

labor practice cases pending on or after that date. The changes will

expire, however, and be of no further force or effect with respect to

any pending or future cases, on January 31, 1996, absent renewal by the

Board.

for further information contact: John C. Truesdale, Executive

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

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

supplementary information: On September 8, 1994, the Board issued a

Notice of Proposed Rulemaking (NPR) which proposed certain

modifications to the Board's rules to permit the assignment of ALJs to

serve as settlement judges, and to provide ALJs with the discretion to

dispense with briefs, to hear oral argument in lieu of briefs, and to

issue bench decisions (59 FR 46375). The NPR provided for a comment

period ending October 7, 1994.

The Board received eight written comments on the NPR. The comments

were received from a variety of sources, including unions, employer

associations, practitioners, and the academic community. The comments

were mixed, with some supporting some of the proposals but not others,

and others supporting none of the proposals. Having carefully

considered these comments, for the reasons discussed below, the Board

has decided to implement the proposed changes with certain

modifications for a one-year experimental period.

I. Settlement Judges

The proposal on the use of settlement judges proposed to amend

Sec. 102.35 of the Board's rules to include provisions for the

assignment of ALJs to serve as settlement judges. The comments on this

proposal were mixed, with two comments opposing the proposal, two

comments supporting the proposal, and two comments suggesting that the

proposal be modified to require the agreement of the parties. (The

other two comments made no comment on the proposal.)

The comments opposing the proposal generally expressed the view

that the proposal was unneeded and unlikely to yield significant

benefits given the Agency's already high settlement rate. The comment

submitted by the AFL-CIO also expressed the concern that the proposal

would diminish the availability of trial judges, cause the postponement

of hearing dates, and have a negative effect on settlement discussion

at the Regional level.

The Board acknowledges that there are potential problems which

could arise with the use of settlement judges. The proposed rules,

however, were drafted to minimize any such problems by requiring 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. The Board indicated in the NPR that among the

factors which the assigning judge could 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.

As suggested by some of the comments, a further safeguard against

abuse of the procedure would be to condition the use of settlement

judges on the agreement of all parties. The proposed rule did not

include such a condition or otherwise permit a party to veto the use of

the procedure, but indicated that a party's opposition was a factor for

the assigning judge to consider in assessing whether to appoint a

settlement judge. Having considered the comments, however, the Board

agrees that the rule should state clearly that the procedure should not

be used unless the parties agree to it. This should further minimize

the potential for problems of the kind discussed by the AFL-CIO.

In view of the Agency's lack of experience with settlement judges,

however, the Board has decided to implement the procedure at this time

for a one-year trial period. If significant problems arise with the

procedure during that period, those problems may be considered by the

Board in considering whether to implement the changes permanently.

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 Board proposed to give its ALJs 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 were proposed in the form of amendments to

Sec. 102.35(j) (renumbered to Sec. 102.35(b)(10)), Sec. 102.42, and

Sec. 102.45(a) of the Board's Rules and Regulations.

Of the eight comments received, two generally supported or did not

oppose these changes, while the remaining comments generally opposed

the changes. The comments opposing the changes generally expressed the

concern that dispensing with post-hearing briefs and issuing bench

decisions would be prejudicial to respondents given the absence of

pretrial discovery in Board proceedings, and would result in lower

quality ALJ decisions leading to further litigation.

As with the settlement-judge proposal, the Board recognizes that

problems could arise under the proposed changes if not properly

utilized. As the Board noted in the NPR, many cases are not suitable

for these expedited procedures, and if inappropriate cases were

selected, the resulting remands could delay the final disposition of

the cases.

As indicated in the NPR, however, the Board believes that if ALJs

choose the cases carefully, the benefits of expediting those cases

would outweigh any problems arising in other cases where the procedures

are improvidently utilized. In order to provide some guidance to the

ALJs in this regard, the Board in the NPR suggested certain types of

cases in which it may be appropriate to dispense with briefs and/or to

issue bench decisions, such as cases that turn 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. The Board indicates

that in more complex cases, including cases with lengthy records, these

procedures would likely not be appropriate.

The Board continues to believe that the proposed changes would be

beneficial if properly implemented in accordance with the cautions and

guidance expressed by the Board in the NPR. However, in view of the

Agency's lack of experience with such procedures, as with the

settlement-judge proposal, the Board has decided to implement the

procedure at this time for a one-year trial period.

As the dissent states, the Board has held that a judge's issuance

of an oral decision did ``not satisfactorily compl[y] with the

requirements of Section 10(c) of the National Labor Regulations Act, as

amended, and Section 102.45 of the Board's Rules and Regulations, as

amended, with regard to the preparation of a written decision.'' See

Local Union No. 195, Plumbers (Stone & Webster Engineering Corp.), 237

NLRB 931, 931 (1978). See also Plastic Film Products Corp., 232 NLRB

722, 722 (1977). It is clear, however, that it is the Board's

regulations, and not Section 10(c) of the Act, which has been the

obstacle to such decision. See id. at fn 1 in both cases (Member Murphy

concurring). Indeed, in a subsequent case, a different panel of the

Board, which included one of our dissenting colleagues, upheld an oral

decision by a judge. See Jumbo Produce, 294 NLRB 998, 998-999 (1989)

(rejecting General Counsel's contention that ALJ's dismissal of an

8(a)(1) allegation at the hearing was ``procedurally incorrect'' under

Stone & Webster ``because he did not issue a written decision,''

inasmuch as the judge had allowed the General Counsel to present his

legal and factual arguments and had stated on the record the reasons

for his findings). The rule changes which we adopt today on an

experimental basis are designed to remove any regulatory obstacle which

may exist in light of the Board's decisions in Stone & Webster and

Plastic Film Products and are fully consistent with the Board's

decision in Jumbo Produce.

In any event, the new provisions on bench decisions do not violate

Section 10(c). Section 102.45 of the rules, as amended, provides that

all decisions, including bench decisions, must contain findings of

fact, conclusions, and the reasons or basis therefor upon all material

issues of fact and law, as well as a recommended order, including

affirmative provisions, all as required by Section 10(c). The

amendments to Sec. 102.45 of the rules provide that the administrative

law judge will certify the accuracy of the pages of the transcript

which contain the decision and shall cause those pages to be served on

the parties and filed with the Board. Thus, these provisions provide

for a written decision, in the form of a certified copy of the record

pages containing the judge's full decision, which is served on the

parties, in full compliance with the provisions of Section 10(c) of the

Act. To the extent that the decisions in Stone & Webster and Plastic

Film Products suggest otherwise, we conclude that they are based on a

misreading of the requirements of Section 10(c), and they are overruled

by the new provisions of the Rules.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

the NLRB certifies that these rules 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 reasons set forth above, during the one-year experimental

period, 29 CFR Part 102 is amended 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. 102.35 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. 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 or her 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. Provided, however, that no such assignment shall be

made absent the agreement of all parties to the use of this procedure.

(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

Sec. 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, D.C., 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. Sec. 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 a bench decision, 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 transferring the case to the Board

shall be complete upon mailing.

* * * * *

Dated, Washington, DC, December 16, 1994.

By direction of the Board:\1\

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\1\Chairman Gould and Members Devaney and Browning; Members

Stephens and Cohen dissenting in part. The dissenting opinion by

Members Stephens and Cohen is attached.

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John C. Truesdale,

Executive Secretary.

Dissenting Opinion of Members Stephens and Cohen

1. Introduction

We are not opposed to the provision regarding settlement judges. We

have some concerns that the provision may tempt respondents to delay

settlement talks with the Regional Offices and thereby upset the highly

successful settlement efforts of those offices. However, we are

willing, in light of the one-year sunset provision, to join our

colleagues in promulgating this provision.

We are strongly opposed, however, to the rules that give

Administrative Law Judges (ALJs or Judges) the discretion to dispense

with briefs and to issue bench decisions.

2. Statutory Issue

As a threshold matter, we note that, under established Board law,

the provision for bench decisions directly contravenes the Act. In

Plastic Film Products Corp., 232 NLRB 722 (1977), the Board held that

such decisions fail to comply not only with Section 102.45 of the

Board's Rules and Regulations, but also with Section 10(c) of the Act.

Id. at 722. See also Local Union No. 195 (Stone & Webster Engineering

Corp.), 237 NLRB 931 (1978) (oral grant of motion for summary dismissal

of complaint at close of hearing violates Section 10(c) as well as

Section 102.45 of Board's Rules and Regulations).\2\ Thus, the Board's

new rule reverses established Board law.

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\2\Contrary to the assertion of our colleagues, it is clear that

Section 10(c) was indeed one of the obstacles to the oral decisions

in these cases. Only one Member (Murphy) relied solely on the Rules.

The majority relied on Section 10(c) and the Rules.

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In arguing to the contrary, our colleagues rely upon Jumbo Produce,

294 NLRB 998. However, that case is readily distinguishable. In that

case, the judge made an oral evidentiary ruling on a single issue. He

did not rule on the entire case. Indeed, the Board specifically noted

this in distinguishing its earlier ruling in Local Union 195. See 294

NLRB at 999 n.4. We have no quarrel with the traditional practice under

which judges issue bench rulings on evidentiary issues. But the instant

rule goes far beyond that. It gives the judge the power to orally

decide the entire case.

We recognize that, in Local Union 195, the judge did not read any

findings and conclusions into the record. However, in Plastic Film

Products, the judge did precisely that. Notwithstanding this, the Board

found that the judge's decision violated Section 10(c) of the Act.\3\

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\3\Member Stephens finds the construction of Section 10(c) by

the majority in Plastic Film Products Corp. highly questionable, but

he agrees that it at least presents an additional issue that parties

might raise in the courts when seeking review of cases decided by

bench rulings. As we argue below, to the extent that further grounds

for appellate litigation are provided, the asserted delay-minimizing

objective of the rule is undermined.

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In sum, the rules are at odds with Board law. Our colleagues, in

apparent recognition of this fact, overrule Board law to the extent

necessary to accomplish their purpose. However, they set forth no

rationale for this result other than the assertion that the cases are

based on a ``misreading'' of Section 10(c). They offer no support for

this sweeping assertion. Further, they may not have the power to

overrule the extant cases. If the Board was correct in the prior cases,

i.e., if Congress did indeed intend to preclude bench decisions in

enacting Section 10(c), then the Board is simply without authority to

establish a rule to the contrary. See Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (where

intent of Congress is clear, agency must give effect to that intent).

Although the Board has now declared that it has the power to issue

the rule, that declaration will not end the matter. The statutory issue

will undoubtedly be the subject of extended litigation in the federal

courts. Thus, for this reason as well as other reasons described infra,

the rule is at cross-purposes with its stated goal: to expedite the

final resolution of unfair labor practice cases.

3. Policy Considerations

We do not rest entirely, or even principally, on the statutory

issue. Quite apart from the statutory issue, we oppose, for policy

reasons, the provisions giving ALJs the power to issue bench decisions

and the related power to dispense with written briefs. In our view, the

rules sacrifice fundamental fairness, procedural due process and high-

quality decisionmaking. This sacrifice is said to be in the interest of

speed. However, we are not convinced that the rules will result in any

overall savings of time. More importantly, to the extent that they

might save some time, the price is simply too high.

We first address the rule concerning briefs. Underlying much of our

concern about this rule is one critical fact: NLRB proceedings are

conducted without pre-trial discovery. Thus, far from involving a

rehash of previous deposition testimony and jousting over the

significance of documents long ago made available to the opposing side,

Board trials typically represent the first occasion on which the

parties learn the details of their opponent's case.\4\ Notwithstanding

this fact, the rule would require counsel, promptly upon the close of

evidence, to marshal the pertinent facts, spot all the factual and

legal issues, cite the relevant authority, and articulate policy

concerns--all in a cogent and organized fashion. In our view, even the

ablest of counsel cannot be expected to do an effective job under these

circumstances. Moreover, as some of the comments on the proposed rules

have pointed out,\5\ counsel for respondents will be at a distinct

disadvantage under this scheme. Armed with the information gathered in

the pre-complaint investigation, the General Counsel is in a much

better position than respondent's counsel to plot out in advance an

oral presentation of the facts and the law.

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\4\As noted infra, the General Counsel will ordinarily have some

prior knowledge of the specifics of the respondent's case, with the

extent of that knowledge varying with the degree of cooperation

extended by the respondent during the pre-complaint investigation.

\5\See comments of Thomas A. Lenz (Atkinson, Andelson, Loya,

Ruud & Romo) at 2; William K. Harvey (Jackson, Shields, Yeiser &

Cantrell) at 1.

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The rule is otherwise flawed. Although it provides for a

``reasonable period'' for oral argument, it does not provide such a

period for the preparation of the argument. Further, even if a judge

granted such a period, that would not cure the fundamental defect in

this provision. A recess period is simply no substitute for the time-

honored practice of reading the transcript, researching the issues by

use of a library and computer technology, reflecting upon the law and

the facts, and writing a cogent, organized and persuasive brief.

Requiring counsel to throw together a presentation at the close of

the trial also creates a real danger that relevant points will be

overlooked. The consequences of any such omission or oversight can be

severe. If a party fails to raise a point before the ALJ, it may well

have waived its right to raise that issue before the Board. See, e.g.,

Local 520, IUOE (Mautz & Oren, Inc.), 298 NLRB 1098, 1098 n.3 (1990);

Hydro Logistics, Inc., 287 NLRB 602, n.1 (1987). Issues not raised

before the Board, of course, cannot ordinarily be raised on appeal. See

NLRB Section 10(e).

For all of the reasons discussed above, we believe that dispensing

with briefs is fundamentally unfair to the participants in Board

proceedings. We further believe that this practice will erode the

quality of decision-making by ALJs. As any decision-maker can attest,

the decisional process is greatly facilitated by access to thorough and

competent written arguments on both sides of the issue. Substituting

hasty and perhaps ill-considered oral presentations for written briefs

cannot help but make the job of the ALJ more difficult, as well as that

of the Board members and federal judges who must review the ALJ's

decision.

The provision allowing ALJs to issue decisions from the bench is

perhaps even more objectionable. First of all, the threat to the

quality of ALJ decisions posed by dispensing with briefing will only be

compounded by the absence of a written ALJ decision. In essence, the

Judge will have just heard oral arguments, which were constructed

without benefit of time for assimilation, research, organization and

reflection. The judge will thereupon render a decision, without an

independent opportunity for assimilation, research, organization and

reflection. In our view, such a process is not a recipe for

excellence--or even quality--in decision-making.

The use of bench decisions, moreover, is bound to compound the

Board's difficulties in the federal courts. In recent years, reviewing

courts have shown an increasing propensity to remand cases to the Board

(or simply to reverse the Board outright) on grounds that the Board has

not adequately articulated the basis for its decision. Our colleagues

nonetheless wish to implement a rule that can only exacerbate this

problem.

As the new rule recognizes, ALJ bench decisions are not exempt from

the requirements of the Administrative Procedures Act (APA), which

provides that all decisions ``shall include a statement of * * *

findings and conclusions, and the reasons or basis therefore, on all

the material issues of fact, law, or discretion presented on the record

* * *.'' 5 U.S.C. Section 557(c) (1988) (emphasis added). Just as the

most competent of counsel will have difficulty constructing a cogent

oral argument on the spot, so, too will even the ablest of ALJs have

difficulty covering all the basis required by the APA in a bench

decision--especially one rendered without the benefit of written

briefs. The question whether the Judge's oral decision complies with

the APA will thus, as noted in comments on the proposed rule,\6\

provide fertile ground for litigation before the circuit courts as well

as the Board.

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\6\See Comment of Jeffrey C. McGuiness (Labor Policy

Association) at 3.

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In addition, we are not convinced that resorting to bench decisions

will result in any net savings of time--the driving force behind this

provision. Litigation over the adequacy of the Judge's oral findings is

almost certain to add time at both the Board and court levels. Indeed,

the mere opportunity to litigate this procedural issue may result in

the appeal of cases that would not otherwise be taken up--for instance,

Section 8(a)(3) cases that turn largely on the Judge's factual

findings. Moreover, where the Judge has indeed failed to make all the

proper findings, the Board will have to attempt, where possible, to

supply the missing ingredients itself, or else remand the case for

further findings--both time-consuming processes. Further remands will

be doubt occur at the circuit court level when the court disagrees with

the Board's determination regarding the adequacy of the findings.

Thus, litigation over the ``adequacy'' issue, and the necessity for

remands in some cases, will add time to the process. In our view, this

additional time will likely be greater than the time saved by

dispensing with a written decision.\7\ Whereas a remand will likely

result in a minimum of several months of delay, requiring a written

decision (after the filing of briefs) should add at most several weeks

to the decision time in a ``simple'' case--a period that can be kept to

a minimum by encouraging ALJs to set short briefing schedules in

appropriate cases.

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\7\See also Comment of Jeffrey C. McGuiness (Labor Policy

Association) at 3-4.

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In this regard, we do not share our colleagues' apparent belief

that remands can be avoided by carefully culling out only relatively

simple cases. The rule, of course, does not confine use of the

procedure to any particular kind of case. Even if ALJs attempt to abide

by the ``suggestions'' put forth by the Board, there will undoubtedly

be cases where the prediction is not borne out. A case that appears

``simple'' may turn out not to be so simple after all. This is

particularly true, given the absence of discovery. The fact that the

ALJ knows little about the case until the evidence unfolds at trial

increases the risk that a case that appears at first blush to require

only a straightforward credibility determination or the application of

a well-settled principle of law may, upon reflection, turn out to

involve much more.

4. The Comments

The concerns set forth above are shared by most of the persons and

organizations submitting comments. The great bulk of the comments

submitted to the Board express strong opposition both to dispensing

with briefs and to oral ALJ decisions.\8\ Indeed, the proposed rules

are characterized in such terms as ``ill-advised'', ``unwarranted'',

and as ``sacrific[ing] accuracy, fairness and quality for

expedience.''\9\ The sole comment that fully supports the proposed rule

completely ignores one of our primary sources of concern (discussed

extensively in our earlier statement as well as in our dissent today)--

the lack of discovery in Board proceedings. The comment is thus

unpersuasive.\10\

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\8\See Comments of Jeffrey C. McGuiness (Labor Policy

Association) at 2 (``strongly opposed'' to proposed rule changes);

William K. Harvey (Jackson, Shields, Yeiser & Cantrell) at 1 (same);

Ellen J. Dannin (California Western School of Law) at 2 (opposing

``all but the most limited use of such a process''); see also

Comments cited infra note 8. All told, six of the eight comments

expressed adamant opposition to these proposed changes.

\9\See, respectively, Comments of Philip J. Moss (Moon, Moss,

McGill & Bachelder) at 1; Thomas A. Lenz (Atkinson, Andelson, Loya,

Ruud & Romo, Bachelder) at 1; Charlotte Herbert (Associated Builders

and Contractors) at 1.

\10\See Comment of Laurence Gold & James Coppess (AFL-CIO). This

comment asserts that ``a number of federal administrative agencies

expressly authorize oral decisions by ALJs,'' and urges us to join

the crowd. See id. at 5. Its citations support this claim as to

three agencies or administrative bodies--the Maritime Administration

of the Department of Transportation, the National Transportation

Safety Board, and the Department of Agriculture. The rules of two of

these bodies, however, expressly provide for discovery, see 49

C.F.R. Section 821.19 (1993) (National Transportation Safety Board);

46 C.F.R. Section 201.109 (1993) (Maritime Administration); and

those of the third provide for a pre-hearing conference at which the

Judge may compel the parties to furnish certain information

regarding their case, including documents they intend to introduce,

see 7 C.F.R. Section 1.140 (1994) (Department of Agriculture). This

comment's analogy to bench decisions issued by the federal district

courts is similarly wide of the mark; those proceedings, of course,

are conducted in accordance with the Federal Rules of Civil

Procedure, which provide for extensive pre-trial discovery.

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5. Conclusion

Like our colleagues, we are in favor of expediting the Board's

processes. The rules being implemented today, however, are unlikely to

achieve that end, and in any event would do so at a cost that is much

too high to pay. That price includes: a lack of fundamental fairness in

Board proceedings, a decline in the quality of the agency's decisional

product, and increasing tension in our relationship with the federal

courts.

In our quest for speed, we must be careful not to undermine the

fundamental goals of fairness in our decisional procedure and

excellence in our decisional product. Because we believe that the rules

approved by our colleagues will do just that, we dissent.

[FR Doc. 94-31486 Filed 12-21-94; 8:45 am]

BILLING CODE 7545-01-M