[Federal Register Volume 82, Number 180 (Tuesday, September 19, 2017)]
[Rules and Regulations]
[Pages 43697-43699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19781]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102

RIN 3142-AA09


Procedural Rules and Regulations; Corrections

AGENCY: National Labor Relations Board.

ACTION: Final rule; correcting amendments.

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SUMMARY: On March 6, 2017, the National Labor Relations Board revised 
its rules and regulations. Those revisions inadvertently failed to 
include certain language, which provided further clarification with 
respect to the prohibition on producing files and documents, and the 
prohibition on testifying. This document corrects that Section, as well 
as additional inadvertent errors that appear throughout the revised 
rules and regulations.

DATES: The correcting amendments are effective September 19, 2017, but 
are applicable beginning March 6, 2017.

FOR FURTHER INFORMATION CONTACT: Gary Shinners, Executive Secretary, 
National Labor Relations Board, 1015 Half Street SE., Washington, DC 
20570, (202) 273-3737 (this is not a toll-free number), 1-866-315-6572 
(TTY/TDD).

SUPPLEMENTARY INFORMATION: On March 6, 2017, the National Labor 
Relations Board revised its rules and regulations and inadvertently 
failed to include language in Sec.  102.118. This is the first set of 
corrections to the NLRB revisions that were published in the Federal 
Register on February 24, 2017 (82 FR 11748).

List of Subjects in 29 CFR Part 102

    Administrative practice and procedure, Labor management relations.

    Accordingly, 29 CFR part 102 is corrected by making the following 
correcting amendments:

PART 102--RULES AND REGULATIONS, SERIES 8

0
1. The authority citation for part 102 continues to read as follows:

    Authority:  Sections 1, 6, National Labor Relations Act (29 
U.S.C. 151, 156). Section 102.117 also issued under section 
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 
552(a)(4)(A)), and Section 102.117a also issued under section 
552a(j) and (k) of the Privacy Act of 1974 (5 U.S.C. 552a(j) and 
(k)). 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. Amend Sec.  102.21 by revising the second sentence to read as 
follows:


Sec.  102.21  Where to file; service upon the parties; form.

    * * * Immediately upon the filing of the answer, Respondent shall 
serve a copy thereof on the other parties. * * *

0
3. Amend Sec.  102.30 by revising the first sentence of paragraph (c) 
to read as follows:


Sec.  102.30  Depositions, examination of witnesses.

* * * * *
    (c) At the time and place specified in the order, the officer 
designated to take the deposition will permit the witness to be 
examined and cross-examined under oath by all the parties appearing, 
and the witness's testimony will be reduced to type-writing by the 
officer or under his/her direction. * * *
* * * * *

0
4. Amend Sec.  102.65 by revising the second and eighth sentences of 
paragraph (a) to read as follows:


Sec.  102.65  Motions; intervention; appeals of Hearing Officer's 
rulings.

    (a) * * * The Motion shall immediately be served on the other 
parties to the proceeding.* * * The Regional Director may rule upon all 
motions filed with him/her, causing a copy of the ruling to be served 
on the parties, or may refer the motion to the Hearing Officer, except 
that if the Regional Director prior to the close of the hearing grants 
a motion to dismiss the petition, the petitioner may obtain a review of 
such ruling in the manner prescribed in Sec.  102.71.* * *
* * * * *

0
5. Amend Sec.  102.66 by revising paragraph (f) to read as follows:


Sec.  102.66  Introduction of evidence: rights of parties at hearing; 
preclusion; subpoenas; oral argument and briefs.

* * * * *
    (f) Subpoenas. The Board, or any Member thereof, shall, on the 
written application of any party, forthwith issue subpoenas requiring 
the attendance and testimony of witnesses and the production of any 
evidence, including books, records, correspondence, or documents, in 
their possession or under their control. The Executive Secretary shall 
have the authority to sign and issue any such subpoenas on behalf of 
the Board or any Member thereof. Any party may file applications for 
subpoenas in writing with the Regional Director if made prior to 
hearing, or with the Hearing Officer if made at the hearing. 
Applications for subpoenas may be made ex parte. The Regional

[[Page 43698]]

Director or the Hearing Officer, as the case may be, shall forthwith 
grant the subpoenas requested. Any person served with a subpoena, 
whether ad testificandum or duces tecum, if he or she does not intend 
to comply with the subpoena, shall, within 5 days after the date of 
service of the subpoena, petition in writing to revoke the subpoena. 
The date of service for purposes of computing the time for filing a 
petition to revoke shall be the date the subpoena is received. Such 
petition shall be filed with the Regional Director who may either rule 
upon it or refer it for ruling to the Hearing Officer except that if 
the evidence called for is to be produced at a hearing and the hearing 
has opened, the petition to revoke shall be filed with the Hearing 
Officer. Notice of the filing of petitions to revoke shall be promptly 
given by the Regional Director or Hearing Officer, as the case may be, 
to the party at whose request the subpoena was issued. The Regional 
Director or the Hearing Officer, as the case may be, shall revoke the 
subpoena if, in his/her opinion, the evidence whose production is 
required does not relate to any matter under investigation or in 
question in the proceedings or the subpoena does not describe with 
sufficient particularity the evidence whose production is required, or 
if for any other reason sufficient in law the subpoena is otherwise 
invalid. The Regional Director or the Hearing Officer, as the case may 
be, shall make a simple statement of procedural or other grounds for 
his/her ruling. The petition to revoke, any answer filed thereto, and 
any ruling thereon shall not become part of the record except upon the 
request of the party aggrieved by the ruling. Persons compelled to 
submit data or evidence are entitled to retain or, on payment of 
lawfully prescribed costs, to procure copies or transcripts of the data 
or evidence submitted by them.
* * * * *

0
6. Amend Sec.  102.67 by revising the first sentence of paragraph (c) 
and the first sentence of paragraph (i)(1) to read as follows:


Sec.  102.67  Proceedings before the regional director; further 
hearing; action by the regional director; appeals from actions of the 
regional director; statement in opposition; requests for extraordinary 
relief; Notice of Election; voter list.

* * * * *
    (c) Upon the filing of a request therefor with the Board by any 
interested person, the Board may review any action of a Regional 
Director delegated to him/her under Section 3(b) of the Act except as 
the Board's Rules provide otherwise, but such a review shall not, 
unless specifically ordered by the Board, operate as a stay of any 
action by the Regional Director. * * *
* * * * *
    (i)(1) * * * All documents filed with the Board under the 
provisions of this Section shall be double spaced, on 8\1/2\- by 11-
inch paper, and shall be printed or otherwise legibly duplicated. * * *
* * * * *

0
7. Amend Sec.  102.69 by revising paragraphs (a) and (d)(1)(ii) to read 
as follows:


Sec.  102.69  Election procedure; tally of ballots; objections; 
certification by the regional director; hearings; hearing officer 
reports on objections and challenges; exceptions to hearing officer 
reports; regional director decisions on objections and challenges.

    (a) Election procedure; tally; objections. Unless otherwise 
directed by the Board, all elections shall be conducted under the 
supervision of the Regional Director in whose Region the proceeding is 
pending. All elections shall be by secret ballot. Whenever two or more 
labor organizations are included as choices in an election, either 
participant may, upon its prompt request to and approval thereof by the 
Regional Director, whose decision shall be final, have its name removed 
from the ballot, except that in a proceeding involving an employer-
filed petition or a petition for decertification the labor organization 
certified, currently recognized, or found to be seeking recognition may 
not have its name removed from the ballot without giving timely notice 
in writing to all parties and the Regional Director, disclaiming any 
representation interest among the employees in the unit. A pre-election 
conference may be held at which the parties may check the list of 
voters and attempt to resolve any questions of eligibility or 
inclusions in the unit. When the election is conducted manually, any 
party may be represented by observers of its own selection, subject to 
such limitations as the Regional Director may prescribe. Any party and 
Board agents may challenge, for good cause, the eligibility of any 
person to participate in the election. The ballots of such challenged 
persons shall be impounded. Upon the conclusion of the election the 
ballots will be counted and a tally of ballots prepared and immediately 
made available to the parties. Within 7 days after the tally of ballots 
has been prepared, any party may file with the Regional Director 
objections to the conduct of the election or to conduct affecting the 
results of the election which shall contain a short statement of the 
reasons therefor and a written offer of proof in the form described in 
Sec.  102.66(c) insofar as applicable, except that the Regional 
Director may extend the time for filing the written offer of proof in 
support of the election objections upon request of a party showing good 
cause. Such filing(s) must be timely whether or not the challenged 
ballots are sufficient in number to affect the results of the election. 
The party filing the objections shall serve a copy of the objections, 
including the short statement of reasons therefor, but not the written 
offer of proof, on each of the other parties to the case, and include a 
certificate of such service with the objections. A person filing 
objections by facsimile pursuant to Sec.  102.114(f) shall also file an 
original for the Agency's records, but failure to do so shall not 
affect the validity of the filing if otherwise proper. In addition, 
extra copies need not be filed if the filing is by facsimile or 
electronically pursuant to Sec.  102.114(f) or (i). The Regional 
Director will transmit a copy of the objections to be served on each of 
the other parties to the proceeding, but shall not transmit the offer 
of proof.
* * * * *
    (d)(1)(i) Record in case with hearing. In a proceeding pursuant to 
this section in which a hearing is held, the record in the case shall 
consist of the Notice of Hearing, motions, rulings, orders, 
stenographic report of the hearing, stipulations, exhibits, together 
with the objections to the conduct of the election or to conduct 
affecting the results of the election, offers of proof made at the 
post-election hearing, any briefs or other legal memoranda submitted by 
the parties, any report on such objections and/or on challenged 
ballots, exceptions, the decision of the Regional Director, any 
requests for review, and the record previously made as defined in Sec.  
102.68. Materials other than those set out above shall not be a part of 
the record.
* * * * *

0
8. Amend Sec.  102.71 by revising the second sentence of paragraph (c) 
to read as follows:


Sec.  102.71  Dismissal of petitions; refusal to proceed with petition; 
requests for review by the Board of action of the regional director.

* * * * *
    (c) * * * The request shall contain a complete statement setting 
forth facts and reasons upon which the request is based.* * *
* * * * *

0
9. Amend Sec.  102.72 by revising the section heading and paragraphs 
(a)

[[Page 43699]]

introductory text, (a)(1), and (c) to read as follows:


Sec.  102.72  Filing petition with general counsel: investigation upon 
motion of general counsel; transfer of petition and proceeding from 
region to general counsel or to another region; consolidation of 
proceedings in same region; severance; procedure before general counsel 
in cases over which the general counsel has assumed jurisdiction.

    (a) Whenever it appears necessary in order to effectuate the 
purposes of the Act, or to avoid unnecessary costs or delay, the 
General Counsel may permit a petition to be filed with him/her in 
Washington, DC, or may, at any time after a petition has been filed 
with a Regional Director pursuant to Sec.  102.60, order that such 
petition and any proceeding that may have been instituted with respect 
thereto:
    (1) Be transferred to and continued before him/her, for the purpose 
of investigation or consolidation with any other proceeding which may 
have been instituted in a Regional Office or with him/her; or
* * * * *
    (c) The Regional Director may exercise the powers in paragraphs 
(a)(2) and (4) of this section with respect to proceedings pending in 
his/her Region.

0
10. Amend Sec.  102.80 by revising paragraph (b) to read as follows:


Sec.  102.80  Dismissal of petition; refusal to process petition under 
expedited procedure.

* * * * *
    (b) If it shall appear to the regional director that an expedited 
election is not warranted but that proceedings under subpart C of this 
part are warranted, he/she shall so notify the parties in writing with 
a simple statement of the grounds for his/her decision.
* * * * *

0
11. Amend Sec.  102.81 by revising the first sentence of paragraph (a) 
and the first sentence of paragraph (c) to read as follows:


Sec.  102.81  Review by the general counsel of refusal to proceed on 
charge; resumption of proceedings upon charge held during pendency of 
petition; review by general counsel of refusal to proceed on related 
charge.

    (a) Where an election has been directed by the Regional Director or 
the Board in accordance with the provisions of Sec. Sec.  102.77 and 
102.78, the Regional Director shall decline to issue a complaint on the 
charge, and he/she shall so advise the parties in writing, accompanied 
by a simple statement of the procedural or other grounds for his/her 
action.* * *
* * * * *
    (c) If in connection with an 8(b)(7) proceeding, unfair labor 
practice charges under other sections of the Act have been filed and 
the Regional Director upon investigation has declined to issue a 
complaint upon such charges, he/she shall so advise the parties in 
writing, accompanied by a simple statement of the procedural or other 
grounds for his/her action.* * *

0
12. Amend Sec.  102.83 by revising the second sentence to read as 
follows:


Sec.  102.83  Petition for referendum under Section 9(e)(1) of the Act; 
who may file; where to file; withdrawal.

    * * * The petition shall be in writing and signed, and either must 
be sworn to before a notary public, Board agent, or other person duly 
authorized by law to administer oaths and take acknowledgments or must 
contain a declaration by the person signing it, under the penalties of 
the Criminal Code, that its contents are true and correct to the best 
of his/her knowledge and belief.* * *

0
13. Amend Sec.  102.118 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  102.118  Present and former Board employees prohibited from 
producing documents and testifying; production of witnesses' statements 
after direct testimony.

    (a) Prohibition on producing files and documents. Except as 
provided in Sec.  102.117 respecting requests cognizable under the 
Freedom of Information Act, no present or former employee or specially 
designated agent of the Agency will produce or present any files, 
documents, reports, memoranda, or records of the Board or of the 
General Counsel, whether in response to a subpoena duces tecum or 
otherwise, without the written consent of the Board or the Chairman of 
the Board if the document is in Washington, DC, and in control of the 
Board; or of the General Counsel if the document is in a Regional 
Office of the Board or is in Washington, DC, and in the control of the 
General Counsel. A request that such consent be granted must be in 
writing and must identify the documents to be produced, the nature of 
the pending proceeding, and the purpose to be served by the production 
of the documents.
    (b) Prohibition on testifying. No present or former employee or 
specially designated agent of the Agency will testify on behalf of any 
party to any cause pending in any court or before the Board, or any 
other board, commission, or other administrative agency of the United 
States, or of any State, territory, or the District of Columbia, or any 
subdivisions thereof, with respect to any information, facts, or other 
matter coming to that person's knowledge in that person's official 
capacity or with respect to the contents of any files, documents, 
reports, memoranda, or records of the Board or of the General Counsel, 
whether in answer to a subpoena or otherwise, without the written 
consent of the Board or the Chairman of the Board if the person is in 
Washington, DC, and subject to the supervision or control of the Board 
or was subject to such supervision or control when formerly employed at 
the Agency; or of the General Counsel if the person is in a Regional 
Office of the Agency or is in Washington, DC, and subject to the 
supervision or control of the General Counsel or was subject to such 
supervision or control when formerly employed at the Agency. A request 
that such consent be granted must be in writing and must identify the 
person whose testimony is desired, the nature of the pending 
proceeding, and the purpose to be served by the testimony of the 
official.
* * * * *

National Labor Relations Board.
Gary Shinners,
Executive Secretary.
[FR Doc. 2017-19781 Filed 9-18-17; 8:45 am]
 BILLING CODE 7545-01-P