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Pepper Crutcher Explores NLRB's Discretion of Rule 56 in Mississippi Law Journal Publication

Pepper Crutcher, partner in the firm’s Jackson office and member Labor & Employment Litigation Practice, authored the article, “Must the NLRB Follow Rule 56 in its Summary Judgment Opinions?” The article, published in the Mississippi Law Journal Volume 93, Issue 3, in June, 2023, explores the National Labor Relations Board (NLRB)’s discretion in following Rule 56 in its summary judgment opinions. 

Rule 56 refers to Rule 56 of the Federal Rules of Civil Procedure (FRCP), which governs the process of summary judgment in civil cases. 

In his article, Pepper explains how the Wagner Act created the NLRB as an independent agency to oversee union-employer relations. Section 10(b) of the act sets ground rules for unfair labor practice proceedings and states that such proceedings shall “so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States…” 

Pepper notes that the NLRB, however, interprets "so far as practicable" as granting it complete discretion to set its own procedural rules.

The article examines the historical context of statutory interpretation and notes that the legislative history of Section 10(b) does not provide a clear confirmation of the NLRB's discretion to ignore the Federal Rules of Civil Procedure. 

The practical significance of this issue is explored, particularly in the context of summary judgment motions. Pepper highlights the evolution of summary judgment practice under Rule 56, emphasizing that movants are now entitled to summary judgment when there is no material fact dispute. The NLRB, however, often denies summary judgment motions based on conclusory allegations made in complaints filed by its General Counsel. This can lead to many respondents settling cases to avoid the costs of trying and appealing cases.

In his article, Pepper further questions how the NLRB reconciles its position with the statutory text, noting that a clear majority of the Supreme Court has condemned reliance on legislative history to circumvent clear statutory language. Pepper argues that "so far as practicable" should be given its ordinary meaning as understood in 1947, which suggests that the NLRB should adhere to the Federal Rules of Civil Procedure.

Overall, Pepper’s article raises concerns about the NLRB's discretion in setting its own procedural rules and advocates for a more textualist interpretation of the statute.

As General Counsel to the Mississippi Manufacturers Association, Pepper advises and advocates for a wide range of private sector employers. Pepper also helps employers, insurers, brokers, administrators and providers achieve ACA compliance and appeal ACA assessments. Labor negotiation and arbitration, OSHA, work site immigration enforcement, and intellectual property protection also are in Pepper's portfolio.