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Procedural Rules Covering Late Filings of Certain Documents in NLRB Representation Cases

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Information about this document as published in the Federal Register.

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AGENCY:

National Labor Relations Board.

ACTION:

Final rule.

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.

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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.

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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 Start Printed Page 70696Agency 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.

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List of Subjects in 29 CFR Part 102

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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

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PART 102—RULES AND REGULATIONS, SERIES 8

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1. The authority citation for

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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)).

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2. Section 102.111(c) is revised to read as follows:

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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.

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Dated: November 14, 2002.

By Direction of the Board.

Lester A. Heltzer,

Acting Executive Secretary, National Labor Relations Board.

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[FR Doc. 02-29741 Filed 11-25-02; 8:45 am]

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