January 2011 - National Labor Relations Board

10386 OPENING STATEMENTS10386 Opening StatementsThe trial attorney should prepare an opening statement in each case. Such astatement should be presented if likely to be helpful for the Administrative Law Judge’sunderstanding of the case or if requested by the judge. An opening statement is useful toset the context of the case, help explain why certain elements and evidence are relevantand may assist the ALJ in making later evidentiary rulings. In such a statement, the trialattorney may also express on the record separate and alternative theories of a violationencompassed by the complaint. See OM Memo 07-84.10388 Trial MotionsMotions at hearing may be either written and served on all parties or made orallyon the record. Rulings by the Administrative Law Judge, and any subsequent orders maybe in writing and served on all parties or stated orally on the record. Where practical,motions calling for a detailed ruling may be served on all parties with a proposed orderfor the ALJ. Depending on the nature of the motion the ALJ may reserve ruling, butshould eventually rule on all motions made.Special permission of the Board is necessary to directly appeal an ALJ’s rulingmade at the hearing. Sec. 102.26, Rules and Regulations and Sec. 10404. Absent theBoard’s grant of special permission to appeal, the ruling of the ALJ will be considered bythe Board only if timely and specific exceptions are filed with the Board to the ALJ’srecommended decision.10388.1 Motion to InterveneThe Administrative Law Judge rules on all motions to intervene made after theopening of the hearing. Counsel for the General Counsel should not oppose interventionby parties or interested persons with direct interest in the outcome of the proceeding.Sec. 102.29, Rules and Regulations and Camay Drilling Co., 239 NLRB 997 (1978).Otherwise, counsel for the General Counsel should oppose such intervention.10388.2 Motion to DismissCounsel for the General Counsel should oppose any motion to dismiss unless themotion is well founded. Sec. 10388.3. If the Administrative Law Judge grants themotion and dismisses the complaint, counsel for the General Counsel should appeal thedecision, absent a total failure of evidence as discussed below. The appeal should be inthe form of a request for review filed with the Board within 28 days and served on allparties. Sec. 102.27, Rules and Regulations and Sec. 10436.10388.3 Failure of ProofCounsel for the General Counsel, after consultation with the Regional Office,should move to withdraw an allegation from the complaint where there is anunquestionable failure of proof on that allegation. Otherwise, no such motion should bemade. If the Administrative Law Judge treats the motion to withdraw an allegation asone to dismiss and does dismiss the allegation, no appeal should be taken.Revised 01/11