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NLRBULPC0001 - Hearing Level - Procedures

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Agency Scheme:

NLRBULPC0001

ADJUDICATION STRUCTURE

Hearing Level: Basic Structure

Name of Hearing Office (local name):

Division of Judges

Name of Hearing Office (global name):

National Labor Relations Board: Division of Judges

Hearing Officer #1 (Title):

Administrative Law Judge

Hearing Officer #2 (Title):

Not applicable

Are administrative appeals permitted from final decisions at the hearing-level stage?:

Yes (All Types of Cases)

Comments/Notes on Adjudication Structure:

Section 10 of the National Labor Relations Act, 29 U.S.C. § 151 et seq., establishes an adjudicative scheme for the prevention of unfair labor practices by employers and unionsthat is, conduct proscribed by § 8 of the Act, 29 U.S.C. § 158, such as discrimination based on union or protected activity or failing to bargain in good faith.

PROCESS & PROCEDURE - General Information

Are private parties permitted to have representation at hearings?:

Yes (All Types of Cases)

Who may serve as a private party representative?:

Either

About what percentage of private parties were represented at hearings (FY2013)?:

100.00%

Is the agency permitted to have representation at hearings?:

Yes (All Types of Cases)

Who may serve as an agency representative?:

Attorney

Regulations/rules of practice for hearings (please include CFR citations):

29 C.F.R. Part 102, Subpart B (see also Subparts C, D, E, & F)

Other published guidance for hearings (if any):

NLRB Benchbook; NLRB Casehandling Manual, Part 1, Unfair Labor Practice Proceedings (not binding on Board or ALJs). Board case law. Federal Rules of Evidence (where practicable) and of Civil Procedure (as guidance).

PROCESS & PROCEDURE - Pre-Hearing Procedure

Is discovery permitted by either party at the hearing-level stage?:

No

Briefly describe the scope and type(s) of discovery available (e.g., depositions, interrogatories, etc.):

Parties may issue subpoenas, which are returnable on the first day of the hearing. Judges rule on any motions or petitions to revoke subpoenas. Prior to issuance of complaints, the General Counsel, through the regional offices, may issue investigatory subpoenas, which are not handled by administrative law judges. In all subpoena matters, if there is non-compliance, the subpoena must be enforced by a Federal Court.

Does the hearing officer have subpoena authority?:

Yes (All Types of Cases)

Are ex parte contacts prohibited?:

Yes (All Types of Cases)

Are parties provided notice of hearing?:

Yes (All Types of Cases)

How far in advance of the hearing date is notice typically provided?:

90 Days

PROCESS & PROCEDURE - Hearing Procedure

What types of hearings are permitted at the hearing-level stage?:

In-Person

Please provide the approximate percentage of each type of hearing relative to the total number of hearings (FY2013)

Written (Document-Only) Hearing:

0%

In-Person:

100%

Video:

0%

Phone:

0%

How is the type of hearing selected:

Required by Rule

How many hearing officers preside at each hearing?:

One

Is witness testimony permitted at hearings?:

Yes

Can parties cross-examine witnesses?:

Yes

Can third-parties submit amicus briefs and/or evidence?:

Yes

Are hearings recorded and/or transcribed?:

Yes

Are hearings open to the public?:

Yes (Hearings Always Open/All Types of Cases)

PROCESS & PROCEDURE - Post-Hearing Procedure

Who typically drafts the decision at the hearing-level stage?:

Adjudication Officer

Who has authority to issue final decisions?:

Adjudication Officer

Do agency regulations or guidance provide time limits for issuance of final decisions?:

No

About how long does it take on average—as of FY2013—to adjudicate claims/cases at the hearinglevel stage (i.e., from case filing:

180 Days

Is judicial review available after issuance of a final decision?:

Yes (All Types of Cases)

PROCESS & PROCEDURE - Case Management

How are claims/cases processed at the hearing-level stage?:

Other

Please briefly describe your case management practice(s) at the hearing level stage:

The regional office requests an initial trial date for a particular case, before filing the complaint, from the Division of Judges, which grants or denies the date, based on judge availability and backlogs. This date may change as the case moves forward. The cases involve three parties: The General Counsel of the NLRB, the Charging Party and the Respondent. The cases are assigned to a judge some 3 or 4 weeks prior to the trial date. The judge typically holds one or more pre-trial conferences by telephone, at which the judge attempts to resolve subpoena and other pre-trial matters and attempts to help the parties reach settlement of the case. In certain circumstances, the judge may accept a settlement over the objection of the General Counsel or the Charging Party. If the case is not settled or postponed, the trial judge hears the case. The average case that goes to trial lasts about 3 days.

Does the agency permit web-based electronic filing of hearing-related briefs or other documents?:

Yes

Are final decisions published and/or posted on the agency website?:

Yes (All Decisions)

Do agency regulations/rules of practice specify the contents of the administrative record at the hearing-level stage?:

Yes (All Types of Cases)

If "Yes," please provide citation(s):

29 C.F.R. section 102.45 (content of record on appeal)

Do agency regulations/rules of practice provide for closure of the record at the hearing-level stage (subject to applicable exce:

Yes (All Types of Cases)

If "Yes," please provide citation(s):

29 C.F.R. section 102.45 and 102.46.

PROCESS & PROCEDURE - Comments

Comments/Notes on Hearing-Level Process & Procedures (Optional):

To elaborate on no. 2, above, the initial trial date is set in the complaint and is generally 90-120 days after the filing of the complaint. The trial date is subject to numerous postponements for various reasons and is mainly in the control of the regions, although motions to postpone within 28 days of hearing must be filed with Division of Judges. See 29 C.F.R. section 102.35(a). It is possible that a postponement of a trial date will result in the assignment of a different judge. To elaborate on no. 3, above, typical third parties in all of our cases are charging parties (unions, employers or individuals) who have filed the charges with the regional offices that, after investigation, resulted in the issuance of the complaint. These charging parties are entitled to all rights of parties, except they may not amend or change the theory of the complaint. To elaborate on no. 4, above, 180 days is an estimate. Division of Judges does not keep statistics on time from issuance of complaint to issuance of decision, in part because we do not have control over much of the time in that interval. Perhaps Division of Operations does. We do keep statistics on elapsed time from close of hearing and receipt of briefs or submissions to issuance of decision. In FY 2013, half of our decisions issued within 84 days from close of hearing and 38 days from receipt of briefs and submissions. Although judges, in their discretion, may issue bench decisions or dispense with the filing of briefs (See 29 C.F.R. section 102.42 and 102.45), in all but a handful of relatively straight forward cases briefs are permitted.

ADJUDICATORS

Total # of Hearing Officers:

35

Information About Officer:

Adjudication Officer Title	Job Series	Pay Plan	Pay Range	Are persons in this position subject to performance evaluation?	Are persons in this position employed full-time as adjudication officers?	Are persons in this position subject to quality control measures or production goals?	If "Yes," briefly describe:
Administrative Law Judge	0935-Administrative Law Judge	AL	01-03	No	Yes	No	No specific goals, but judges are provided weekly listings of their cases and asked to provide projected dates for issuance of decisions in their pending cases. They are also advised of median elapsed times from close of hearing and receipt of briefs or submissions to issuance of decisions for the entire Division. They are also provided annually with the Division of Judges Report, which not only lists overall Division statistics, such as the median times mentioned above, but also lists individual judges' production (decisions issued and settlements achieved) as well as elapsed times for each decision. The Report is also supplied to the Board members.
Not applicable

ADR: General Information

Is ADR available at one or more points during the hearing process?:

Yes

If "Yes," when is ADR available?:

Pre-Hearing

Is ADR a mandatory or voluntary process?:

Voluntary

If "Varies by Case," please describe::

A settlement judge may be appointed at any stage under 29 C.F.R. section 102.35(b), if all parties agree. However, most of our settlements are achieved by the trial judge.

What type(s) of ADR are available?:

Settlement Conference

Who conducts the ADR?:

Non-Presiding Adjudicator

Regulations/rules of practice governing ADR process (please include CFR citations):

29 C.F.R. section 102.35(b).

ADR – Summary Statistics

For Fiscal Year 2013, please provide the following annual ADR statistics:

ADR Type or Case Type	# of ADR Matters Initiated (FY2013)	# ADR Matters Resolved (FY2013)
Cases assigned to settlement judge.	21	14

Comments/Notes on ADR Statistics (Optional):

In FY 2013, NLRB trial judges settled 455 cases. Fourteen cases were settled by settlement judges. The Division of Judges does not keep records of precisely how many cases are assigned to settlement judges, but historically approximately 2/3 of cases assigned to settlement judges result in a settlement.

CASELOAD STATISTICS - Summary Statistics

Total # Cases Filed/Opened (FY2013):

1 292

Total # Cases Decided/Closed (FY2013):

707

Total # Cases Pending (End of FY2013):

352

CASELOAD STATISTICS - Supplementary Statistics

Does your agency maintain annual caseload statistics for this hearing office by case type (e.g., discrimination complaint, licen:

No

Supplementary Caseload Statistics by Case Type:

Verified by Agency:

Verified

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NLRBULPC0001 - Hearing Level - Procedures