[Federal Register: November 26, 2002 (Volume 67, Number 228)]
[Rules and Regulations]
[Page 70695-70696]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no02-13]
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NATIONAL LABOR RELATIONS BOARD
29 CFR Part 102
Procedural Rules Covering Late Filings of Certain Documents in
NLRB Representation Cases
AGENCY: National Labor Relations Board.
ACTION: Final rule.
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SUMMARY: The National Labor Relations Board is revising its rules that
govern the time for filing certain papers with the Board. The revisions
are being adopted in order to permit certain documents in NLRB
representation cases, required to be filed by a certain date, to be
filed late where the reason for the late filing constitutes ``excusable
neglect'' and provided that no undue prejudice would result from the
late filing. The intended effect of the revisions is to avoid the
inequities that would result from rejecting all late-filed documents
without regard to the reason why the party missed the filing deadline.
DATES: Effective: November 26, 2002.
FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Acting Executive
Secretary, National Labor Relations Board, 1099 14th Street, NW., Room
11600, Washington, DC 20570. Telephone: (202) 273-1067.
SUPPLEMENTARY INFORMATION: At present, the rules of the National Labor
Relations Board provide for circumstances in which certain documents in
unfair labor practice cases may be filed late but make no similar
provision for late filing of documents in NLRB representation cases.
The Board has concluded that it would be appropriate to provide a
formal basis for accepting certain late-filed documents in
representation cases.
The representation documents permitted to be filed late under the
new rule are exceptions, requests for review, motions, briefs, and any
document filed in response to any of the foregoing documents.
Subsections (a) and (b) of Section 102.111 are retained without
modification. Subsection (c) of Section 102.111 is modified to provide
that certain documents in representation cases may be filed late where
the reason for filing constitutes ``excusable neglect,'' provided that
no undue prejudice would result from the late filing. This is the same
standard presently found in this section for late filings in unfair
labor practice cases, and a standard that was borrowed from Fed. R.
Civ. P. 60 (b). No attempt is made to define the myriad situations to
which the rule might apply. Rather, this is a matter that is to be left
to determination on a case-by-case basis. The rule continues to provide
that a party seeking to file a document late must file, along with the
document, a motion stating the grounds relied upon for requesting
permission to file late, along with affidavits sworn to by individuals
with personal knowledge of the specific facts relied upon in support of
the request. Finally, the rule continues to stay the time for
responding to any untimely filed document until the date a ruling
issues accepting the untimely document.
Executive Order 12866
The regulatory review provisions of Executive Order 12866 do not
apply to independent regulatory agencies. However, even if they did,
the proposed changes in the Board's rules would not be classified as
``significant rules'' under Section 6 of Executive Order 12866, because
they will not result in (1) an annual effect on the economy of $100
million or more; (2) a major increase in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions; or (3) significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based enterprises to compete with foreign-based
enterprises in domestic or foreign markets. Accordingly, no regulatory
impact assessment is required.
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
not apply to these rules. However, even if the Regulatory Flexibility
Act were to apply, the NLRB certifies that these rules will not have a
significant economic impact on a substantial number of small business
entities as they merely set forth procedures to be followed by the
[[Page 70696]]
Agency in determining when to accept late-filed documents.
Paperwork Reduction Act
These rules are not subject to Section 3504(h) of the Paperwork
Reduction Act (44 U.S.C. 3501) since they do not contain any new
information collection requirements.
Small Business Regulatory Enforcement Fairness Act
Because these rules relate to Agency procedure and practice and
merely modify the agency's filing procedures, the Board has determined
that the Congressional review provisions of the Small Business
Regulatory Enforcement Fairness Act (5 U.S.C. 801) do not apply.
List of Subjects in 29 CFR Part 102
Administrative practice and procedure, Labor management relations.
To avoid the injustices that could result if the Board had no
flexibility in deciding to accept late-filed documents in
representation cases, the Board amends 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 102.111(c) is revised to read as follows:
Sec. 102.111 Time computation.
(c) The following documents may be filed within a reasonable time
after the time prescribed by these rules only upon good cause shown
based on excusable neglect and when no undue prejudice would result:
(1) In unfair labor practice proceedings, motions, exceptions,
answers to a complaint or a backpay specification, and briefs; and
(2) In representation proceedings, exceptions, requests for review,
motions, briefs, and any responses to any of these documents. A party
seeking to file such documents beyond the time prescribed by these
rules shall file, along with the document, a motion that states the
grounds relied on for requesting permission to file untimely. The
specific facts relied on to support the motion shall be set forth in
affidavit form and sworn to by individuals with personal knowledge of
the facts. The time for filing any document responding to the untimely
document shall not commence until the date a ruling issues accepting
the untimely document. In addition, cross-exceptions shall be due
within 14 days, or such further period as the Board may allow, from the
date a ruling issues accepting the untimely filed documents.
Dated: November 14, 2002.
By Direction of the Board.
Lester A. Heltzer,
Acting Executive Secretary, National Labor Relations Board.
[FR Doc. 02-29741 Filed 11-25-02; 8:45 am]
BILLING CODE 7545-01-P