[Federal Register: January 12, 2004 (Volume 69, Number 7)]
[Rules and Regulations]
[Page 1675-1677]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja04-19]
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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]
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