C.F.R. » Title 29 » CHAPTER I—NATIONAL LABOR RELATIONS BOARD › PART 102—RULES AND REGULATIONS, SERIES 8 › Subpart D—Procedure Under Section 9(c) of the Act for the Determination of Questions Concerning Representation of Employees 2 and for Clarification of Bargaining Units and for Amendment of Certifications Under Section 9(b) of the Act

29 C.F.R. § 102.65

Motions; intervention; appeals of Hearing Officer's rulings

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(a) All motions, including motions for intervention pursuant to paragraphs (b) and (e) of this section, shall be in writing or, if made at the hearing, may be stated orally on the record and shall briefly state the order or relief sought and the grounds for such motion. The Motion shall immediately be served on the other parties to the proceeding. Motions made prior to the transfer of the record to the Board shall be filed with the Regional Director, except that motions made during the hearing shall be filed with the Hearing Officer. After the transfer of the record to the Board, all motions shall be filed with the Board. Such motions shall be printed or otherwise legibly duplicated. Eight copies of such motions shall be filed with the Board. Extra copies of electronically-filed papers need not be filed. 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 § 102.71. The Hearing Officer shall rule, either orally on the record or in writing, upon all motions filed at the hearing or referred to the Hearing Officer as hereinabove provided, except that the Hearing Officer shall rule on motions to intervene and to amend the petition only as directed by the Regional Director, and except that all motions to dismiss petitions shall be referred for appropriate action at such time as the entire record is considered by the Regional Director or the Board, as the case may be. All motions, rulings, and orders shall become a part of the record, except that rulings on motions to revoke subpoenas shall become a part of the record only upon the request of the party aggrieved thereby as provided in § 102.66(f).

(b) Any person desiring to intervene in any proceeding shall make a motion for intervention, stating the grounds upon which such person claims to have an interest in the proceeding. The Regional Director, or the Hearing Officer, at the specific direction of the Regional Director, may by order permit intervention in person or by counsel or other representative to such extent and upon such terms as the Regional Director may deem proper, and such intervenor shall thereupon become a party to the proceeding.

(c) Rulings by the Hearing Officer shall not be appealed directly to the Regional Director, except by special permission of the Regional Director, but shall be considered by the Regional Director when the director reviews the entire record. Requests to the Regional Director for special permission to appeal from a ruling of the Hearing Officer, together with the appeal from such ruling, shall be filed promptly, in writing, and shall briefly state the reasons special permission should be granted and the grounds relied on for the appeal. The moving party shall immediately serve a copy of the request for special permission and of the appeal on the other parties and on the Regional Director. Any statement in opposition or other response to the request and/or to the appeal shall be filed promptly, in writing, and shall be served immediately on the other parties and on the Regional Director. No party shall be precluded from raising an issue at a later time because it did not seek special permission to appeal. If the Regional Director grants the request for special permission to appeal, the Regional Director may proceed forthwith to rule on the appeal. Neither the filing nor the grant of such a request shall stay the proceedings unless otherwise ordered by the Regional Director. As stated in § 102.67, the parties may request Board review of Regional Director actions.

(d) The right to make motions or to make objections to rulings on motions shall not be deemed waived by participation in the proceeding.

(e)(1) A party to a proceeding may, because of extraordinary circumstances, move after the close of the hearing for reopening of the record, or move after the decision or report for reconsideration, for rehearing, or to reopen the record, but no such motion shall stay the time for filing a request for review of a decision or exceptions to a report. No motion for reconsideration, for rehearing, or to reopen the record will be entertained by the Board or by any Regional Director or Hearing Officer with respect to any matter which could have been but was not raised pursuant to any other section of these Rules except that the Regional Director may treat a request for review of a decision or exceptions to a report as a motion for reconsideration. A motion for reconsideration shall state with particularity the material error claimed and with respect to any finding of material fact shall specify the page of the record relied on for the motion. A motion for rehearing or to reopen the record shall specify briefly the error alleged to require a rehearing or hearing de novo, the prejudice to the movant alleged to result from such error, the additional evidence sought to be adduced, why it was not presented previously, and what result it would require if adduced and credited. Only newly discovered evidence—evidence which has become available only since the close of the hearing—or evidence which the Regional Director or the Board believes should have been taken at the hearing will be taken at any further hearing.

(2) Any motion for reconsideration or for rehearing pursuant to paragraph (e)(1) of this section shall be filed within 10 business days, or such further period as may be allowed, after the service of the decision or report. Any request for an extension of time to file such a motion shall be served promptly on the other parties. A motion to reopen the record shall be filed promptly on discovery of the evidence sought to be adduced.

(3) The filing and pendency of a motion under this provision shall not unless so ordered operate to stay the effectiveness of any action taken or directed to be taken nor will a Regional Director or the Board delay any decision or action during the period specified in paragraph (e)(2) of this section, except that, if a motion for reconsideration based on changed circumstances or to reopen the record based on newly discovered evidence states with particularity that the granting thereof will affect the eligibility to vote of specific employees, the Board agent shall have discretion to allow such employees to vote subject to challenge even if they are specifically excluded in the direction of election and to challenge or permit the moving party to challenge the ballots of such employees even if they are specifically included in the direction of election in any election conducted while such motion is pending. A motion for reconsideration, for rehearing, or to reopen the record need not be filed to exhaust administrative remedies.

[84 FR 69593, Dec. 18, 2019]
Notes of Decisions
Cited in 15 cases, 1964–2017 · leading case: Salem Hosp. Corp. v. Nat'l Labor Relations Bd., 808 F.3d 59 (D.C. Cir. 2015).
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Salem Hosp. Corp. v. Nat'l Labor Relations Bd., 808 F.3d 59 (D.C. Cir. 2015). · cites it 4× “” 29 C.F.R. § 102.65 (c). But. the Board could not explain at oral argument why this was an “appropriate case,” see Oral Arg.”
Telemundo De Puerto Rico, Inc. v. Nat'l Labor Relations Bd., 113 F.3d 270 (1st Cir. 1997). · cites it 4× “This initiative squarely presents the question of when changes in employment responsibilities require reexamination of an earlier determination of employee status.”
Pace Univ. v. Nat'l Labor Relations Bd., 514 F.3d 19 (D.C. Cir. 2008). “at 1002; see also 29 C.F.R. § 102.65 (e). For example, reliti-gation is allowed if “newly discovered evidence or other special circumstances require] reexamination of the decision in the representation proceeding,” Joseph T.”
Boston Insulated Wire & Cable Sys., Inc., Petitioner-Cross-Respondent v. Nat'l Labor Relations Bd., Respondent-Cross-Petitioner, 703 F.2d 876 (5th Cir. 1983). “5 While a party may move for a reopening of the record under “extraordinary circumstances,” 29 C.F.R. § 102.65 (e)(1) (1981), “no motion for reconsideration or rehearing will be entertained pursuant to this paragraph .”
Nat'l Labor Relations Bd. v. Mercy Hospitals of Sacramento, Inc., 589 F.2d 968 (9th Cir. 1979). “29 C.F.R. § 102.65 (e)(1) states in pertinent part: A party to a proceeding may, because of extraordinary circumstances, move after the close of the hearing for reopening of the record, or move after the decision for reconsideration or rehearing, except that no motion for…”
Fall River Sav. Bank v. Nat'l Labor Relations Bd., 649 F.2d 50 (1st Cir. 1981). “29 C.F.R. § 102.65 (e)(2). 11 The Bank argues that a motion for reconsideration would not have been appropriate here, or at least that the rule failed to give notice of its applicability to a case such as this.”
Nat'l Labor Relations Bd. v. Air Control Prods. of St. Petersburg, Inc., 335 F.2d 245 (5th Cir. 1964). “Not confined to ruling on motions and objections, 29 C.F.R. § 102.65 (a) , (b), and questions of continuances and evidence, the hearing officer has the duty to “inquire fully into all matters in issue,” 29 C.”
Nat'l Labor Relations Bd. v. Annapolis Emergency Hosp. Ass'n, Inc., D/B/A Anne Arundel Gen. Hosp., 561 F.2d 524 (4th Cir. 1977). “Admittedly, the employer did not file a petition for reconsideration pursuant to 29 C.F.R. § 102.65 (eXl). 2 When the employer refused to bargain, an unfair labor practice complaint was filed.”
Cargill, Inc. v. Nat'l Labor Relations Bd., 851 F.3d 841 (8th Cir. 2017). “By electing to file a new petition, the Union did not, as asserted by Cargill, run afoul of 29 C.F.R. § 102.65 (e)(1), which prohibits a motion for reconsideration, rehearing, or reopening of the record on a matter that could have been raised in the earlier proceedings.”
Edward Street Daycare Ctr., Inc. v. Nat'l Labor Relations Bd., 189 F.3d 40 (1st Cir. 1999). “4 *45 The Center also assigns error to the Board’s decision not to consider the affidavit of the Center’s Coordinator of Social Services/Training which was proffered to the Board for the first time in response to the unfair labor practice charge.”
Nat'l Labor Relations Bd. v. Kolkka, 170 F.3d 937 (9th Cir. 1999). “This result is consistent with the manner in which other categories of terminable employees are treated for union election purposes, and is a reasonable reconciliation of the two statutes at issue.”
Telemundo v. NLRB (1st Cir. 1997). · cites it 2× “29 C.F.R. 102.65(e)(1). 16 1. The evidence concerning the elimination of Corps' 1.”
Show all 15 citing cases →
— 29 C.F.R. § 102.65(c) — 1 case
Salem Hosp. Corp. v. Nat'l Labor Relations Bd., 808 F.3d 59 (D.C. Cir. 2015). “” 29 C.F.R. § 102.65 (c). But. the Board could not explain at oral argument why this was an “appropriate case,” see Oral Arg.”
— 29 C.F.R. § 102.65(e)(1) — 3 cases
Telemundo v. NLRB (1st Cir. 1997). “29 C.F.R. 102.65(e)(1). 16 1. The evidence concerning the elimination of Corps' 1.”
Telemundo v. NLRB (1st Cir. 1997).
Edward Street Day v. NLRB (1st Cir. 1999).
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.