Meaning of Terms as Used in This Subchapter; Representation Proceedings

SUMMARY: The Federal Labor Relations Authority proposes to revise its

regulations regarding the meaning of certain terms used in Subchapter C

(Part 2421) and representation proceedings (Part 2422). These proposed

revisions will streamline the regulations and make the rules more

flexible in addressing the representational concerns of agencies, labor

organizations, and individuals.

DATES: Comments must be received on or before September 18, 1995.

ADDRESSES: Mail or deliver written comments to the Office of Case

Control, Federal Labor Relations Authority, 607 14th Street NW.,

Washington, DC. 20424-0001. Copies of all written comments will be

available for inspection and photocopying between 8 a.m. and 5 p.m.,

Monday through Friday, in Suite 415 at the above address.

FOR FURTHER INFORMATION CONTACT: James H. Adams, Office of Case

Control, (202) 482-6540.

SUPPLEMENTARY INFORMATION: The Federal Labor Relations Authority

established a Task Force to study and evaluate Part 2422 of its

regulations--the regulations concerning representation proceedings. To

this end, the Task Force conducted focus groups to solicit and consider

customers' views prior to proposing these revisions. An additional

focus group meeting has been scheduled for August 29, 1995 at the

FLRA's Headquarters, 607 14th St. N.W., Washington, D.C. 20424, 2nd

Floor Agenda Room, at 10:00 a.m. Persons interested in attending this

meeting on this proposed rulemaking should call or write the point of

contact listed in the preceding section to confirm attendance.

Sectional analyses of the proposed amendments to Part 2421--Meaning

of Terms As Used in This Subchapter and the proposed revisions of Part

2422--Representation Proceedings are as follows:

Part 2421

Section 2421.11--The definition of ``party'' is clarified to

incorporate the statutory definition of the term ``person'' (an

individual, labor organization, activity or agency).

Section 2421.18--The term ``petitioner'' is not defined in the

current regulations. This section now defines ``petitioner.''

Section 2421.19--The term ``eligibility period'' is not defined in

the current regulations. This section now defines ``eligibility

period'' in connection with elections.

Section 2421.20--The term ``election agreement'' is not defined in

the current regulations. This section now defines ``election

agreement.''

Section 2421.21--A new term, ``affected by issues raised,'' used

throughout the proposed regulations, is defined in this section. The

term has been added to ensure that all appropriate entities are

afforded the opportunity to participate in a proceeding.

Section 2421.22--The term ``determinative challenged ballots'' is

not defined in the current regulations. This section now defines

``determinative challenged ballots.''

Part 2422

Section 2422.1--In a significant proposed change, this section

consolidates in one petition the seven separate petitions (RO, DR, RA,

CU, AC, UC, DA) provided for in Part 2422 of the current regulations.

This single petition permits resolution of all issues that may be

raised concerning the representation of employees by labor

organizations covered by the Statute and obtains the same type of

results provided for by using the current petitions. All of the current

petitions are incorporated into this section.

Combining the current seven petitions into a single petition

simplifies the current multiple filing requirements. A single petition

avoids the procedural issues that arise when a petitioner ``checks the

wrong box'' and files the wrong petition. A single petition also

provides a more flexible approach to complicated representation

matters.

Many of the current rights and obligations that flow to parties

while a representation petition is being processed are dependent upon

the type of petition that has been filed. The proposed regulations

contain a substantive rule in section 2422.34 to guide the parties'

conduct while the new petition is processed.

Section 2422.2--This section provides that, with one exception, the

new petition may be filed by any individual, labor organization,

activity or agency, or combination of these. The one exception,

consistent with section 7111(b) of the Statute, is that a petition

requesting an election to either elect or decertify a labor

organization and requiring a showing of interest may be filed only by

an individual or a labor organization. A petition may be filed as to

matters relating to majority status (if the activity or agency has a

good faith doubt, based on objective considerations, that a current

recognized or certified labor organization represents a majority of the

employees in an existing unit) or other matters relating to

representation (e.g., questions concerning whether a current unit

continues to be appropriate because of a substantial change in the

character and scope of the unit). Current pre-filing requirements

applicable to UC petitions are eliminated.

Section 2422.3--The new petition is described in this section. This

section also contains, in separate subsections, requirements for:

compliance with section 7111(e) of the Statute; submission of a showing

of interest to support a request for an election; and certification for

a dues allotment.

The parties will be required to name in the petition the

activity(ies), agency(ies), labor organizations and bargaining units

affected by issues raised in the petition, as well as to state clearly

and concisely the issues raised in the petition and the results the

petitioner seeks. This section facilitates participation by all labor

organizations, agencies and activities that have an interest in the

issues raised in the petition.

[[Page 39879]]

Section 2422.4--This section consolidates service requirements and

applies to all documents unless the regulations specifically provide

otherwise. The section includes 2 options concerning the service of

supporting documentation. Under Option 1, supporting documentation,

with the exception of showings of interest, would be served on all

affected parties. Under Option 2, supporting documentation, with the

exception of showings of interest, challenges to showings of interest,

other challenges, and objections, would be served.

Section 2422.5--This section identifies the method for filing the

new petition, including where to file, the number of copies to file,

and the date of filing. The petitioner would have to file an original

and 2 copies of the petition, rather than the current original and 4

copies.

Section 2422.6--This is a new section that ensures service of the

petition on all entities that may have an interest in a proceeding. It

provides that a Regional Director will notify interested parties

identified in a petition and any other interested parties known to the

Regional Director. This section does not alter the petitioner's service

requirements contained in section 2422.4.

Section 2422.7--Under this section, as under current regulation, a

Regional Director will direct an activity or agency to post a notice

for 10 days advising affected employees and interested parties about a

petition. However, as discussed in more detail in connection with

section 2422.8, the posting of the notice no longer will establish the

time period for filing intervention requests, challenges to the showing

of interest, or other challenges to the proceeding.

Section 2422.8--This section would significantly change the current

requirements for requesting intervention and filing cross-petitions.

Timeliness for filing requests for intervention and cross-petitions is

no longer subject to the 10-day posting period. Rather, the requests

and filings are timely if filed either: (1) prior to the close of a

hearing; or (2) if no hearing is held, prior to the approval of an

election agreement or issuance of a Decision and Order. The section

expands the criteria to qualify as an intervenor to allow all parties

who are affected by issues raised in the petition to participate in a

proceeding. Similarly, activities and agencies may qualify as

intervenors if they employ any employees affected by issues raised in a

petition.

Section 2422.9--This section defines the ``adequacy of a showing of

interest.'' This term is not defined in the current regulations. The

section clarifies that Regional Director decisions holding that a

showing of interest is adequate are final and binding.

Section 2422.10--This section clarifies that Regional Director

decisions holding that a showing of interest is valid are final and

binding decisions. Time limits for filing challenges to the validity of

a showing of interest are no longer tied to the 10-day posting period.

Rather, challenges are timely if filed: (1) prior to the close of a

hearing; or (2) if no hearing is held, prior to the approval of an

election agreement or issuance of a Decision and Order.

Section 2422.11--Time limits for filing challenges to the status of

a labor organization are no longer tied to the 10-day posting period.

Rather, status challenges are timely if filed: (1) prior to the close

of a hearing; or (2) if no hearing is held, prior to the approval of an

election agreement or issuance of a Decision and Order. The section

also clearly states the current requirement that the only basis on

which such a status challenge may be made is alleged non-compliance

with 5 U.S.C. 7103(a)(4).

Section 2422.12--This section lists the timeliness requirements for

filing a petition seeking an election. There are no substantive changes

in the election bar in subsection (a), the certification bar in

subsection (b) or the bar rules in subsections (d) through (f). A new

subsection (c) has been added to track case law concerning the filing

of a petition during the time for agency head review under 5 U.S.C.

7114(c). See Kansas Army National Guard, Topeka, Kansas, 47 FLRA 937

(1993); Fort Bragg Association of Teachers and U.S. Department of the

Army, Fort Bragg Schools, Fort Bragg, North Carolina, 44 FLRA 852

(1992); U.S. Department of Defense, Defense Contract Audit Agency,

Central Region and American Federation of Government Employees, Local

3529, 37 FLRA 1218 (1990). Also, a new subsection (h) has been added to

track case law concerning the requirements that a contract must meet to

serve as a bar. See U.S. Department of the Interior, Redwood National

Park, Crescent City, California, 48 FLRA 666 (1993); U.S. Department of

Health and Human Services, Social Security Administration, 44 FLRA 230

(1992); Florida (Air) National Guard, St. Augustine, Florida, 43 FLRA

1475 (1992); U.S. Department of Housing and Urban Development, Newark

Office, Newark, New Jersey, 37 FLRA 1122 (1990); Department of the

Army, U.S. Army Concord District Recruiting Command, Concord, New

Hampshire, 14 FLRA 73 (1984). These changes place in one section all

requirements concerning a contract as a bar to a petition seeking an

election.

Section 2422.13--This is a new section highlighting the importance

of discussions among the parties to narrow and resolve issues raised in

a representation matter and the role of personnel in the Regional

Offices in assisting parties in these discussions, both before and

after the filing of a petition. Subsection (a) encourages all parties

to meet prior to the filing of a petition to discuss and narrow the

issues. If requested by all parties, Regional Office personnel also

will participate in these meetings. Subsection (b) allows a Regional

Director to require all affected parties to meet to attempt to narrow

and resolve issues after a petition has been filed.

Section 2422.14--This section states the consequences of a

withdrawal or dismissal of a petition seeking an election less than 60

days before the expiration of a contract covering the employees

affected or anytime after the expiration of the agreement. The section

now applies to all contracts, not just those having a term of 3 years

or less. This section makes no substantive changes in the current

regulations concerning consequences of withdrawal or dismissal of a

petition seeking an election less than 60 days before the expiration of

a collective bargaining agreement (subsection (a)); or such

consequences when a petition seeking an election is withdrawn by the

petitioner less than 3 days prior to a hearing, or after a Regional

Director has approved an election agreement or directed an election

(subsection (b)). However, in a departure from current regulation, a

new subsection (c) bars an incumbent from seeking an election in a unit

for which it has disclaimed interest within the previous 6 months.

Section 2422.15--This section requires all parties to furnish

information concerning issues raised in a petition and to cooperate

fully in an investigation, subject to dismissal of a petition or a

request to intervene.

Section 2422.16--This section discusses election agreements and

elections directed by a Regional Director. The section does not change

the existing requirement that parties will be provided an opportunity

for a hearing on other than procedural matters before a Regional

Director directs an election.

However, the section reflects a significant change: after a

hearing, if there are no questions regarding unit appropriateness, a

Regional Director may issue a Direction of Election without issuing a

Decision and Order. Thus, elections may be conducted

[[Page 39880]]

without delay when the parties agree on, and a Regional Director

approves, an appropriate unit even though the parties are unable to

agree on such matters as the eligibility of employees that do not

affect the appropriateness of the unit. Any party would be permitted to

file challenges to the eligibility of any person voting in the election

and/or file objections to the election.

Section 2422.17--This section, pertaining to a notice of hearing,

provides that parties must participate in a prehearing conference

scheduled by the Hearing Officer and must be prepared to discuss,

narrow and resolve the issues raised by the petition set forth in the

notice of hearing. This section, in conjunction with section 2422.13,

emphasizes the resolution of issues at the earliest stage possible

during a proceeding.

Sections 2422.18-2422.20--These three sections set forth hearing

procedures and rights of the parties at a hearing.

Section 2422.21--This section offers two options. Option 1 follows

current regulations. Option 2 would authorize a Hearing Officer to make

recommendations on the record on any issue. Other options exist,

including limiting the type of recommendations that may be made to

certain matters, such as credibility and eligibility issues. Following

receipt of comments, consideration will be given to whether, if current

regulations are changed, the authority of Hearing Officers to make

recommendations should be more limited than that proposed in Option 2.

Section 2422.22--This section addresses objections to the conduct

of the hearing.

Section 2422.23--This section clarifies and simplifies the

procedure by which elections are conducted or supervised by a Regional

Director. This section continues current practices with two exceptions:

subsection (e) provides that when the parties agree, the Regional

Director may allow an intervenor to remove its name from the ballot

even if the request to withdraw is received after the approval of an

election agreement or the direction of an election; subsection (f) adds

that if an incumbent withdraws from a ballot to decertify the

incumbent, any intervenor will be given time, as established by a

Regional Director, to proffer a thirty percent (30%) showing of

interest in the unit. Subsection (g) describes whether an election will

be held when the petitioner requests withdrawal.

Sections 2422.24-2422.29--These six sections discuss challenged

ballots, the tally of ballots, objections to the election, the

processing of determinative challenged ballots and objections to an

election, and runoff and inconclusive elections. These sections make no

substantive changes in current practices in these areas, except in one

instance: subsection (a) of section 2422.26 provides that objections to

an election must be filed and received by a Regional Director within 5

days after the tally of ballots has been furnished to the parties.

Current regulations measure the timeliness of objections from the date

of service of the objections, which encompasses the date mailed. This

change allows certifications following elections to be issued more

expeditiously.

Section 2422.30--This section clarifies in subsection (b),

consistent with section 2422.16(c), that a Regional Director will issue

a notice of hearing when there is either a material issue of fact or

reasonable cause to believe a question exists regarding unit

appropriateness. The section also clarifies in subsection (e) what

constitutes ``the record'' in a representation proceeding. The section

makes no substantive changes in the current practices in these areas.

The section states that a Regional Director will resolve matters in

dispute and issue a Decision and Order when appropriate but does not

list all potential actions a Regional Director may take.

Section 2422.31--Subsection (c) includes two options for when the

Authority will grant an application for review of a Regional Director's

decision. Option 1 retains the current grounds for review with minor

editorial changes. Option 2 specifies that, in addition to satisfying

one or more of those grounds, a party seeking review must assert and

establish that the Authority's decision will have a substantial impact

on labor-management relations law unless the Authority determines, in

its discretion, that extraordinary circumstances exist to grant review.

Following receipt of comments, the Authority will adopt one of the

options or a combination thereof.

Section 2422.32--This is a new section that states when

certifications and revocations may be issued. The section allows a

Regional Director to issue, as appropriate, revocations of recognitions

or certifications, when an exclusive representative no longer

represents an appropriate unit, such as when a disclaimer is filed by

an incumbent or when there has been a substantial change in the

character and scope of a unit. The issuance of revocations will enable

parties and the Authority to better track the history of a bargaining

unit and provide a definitive declaration of the representational

status of the unit. The section also clarifies that a revocation of a

certification has no impact on any rights and obligations that may

exist under the Statute.

Section 2422.33--This section clarifies that relief which was or

could have been obtained in a representation proceeding may not be

obtained in an unfair labor practice proceeding.

Section 2422.34--This new substantive rule sets out the obligations

and rights of parties during the pendency of a representation petition.

Subsection (a) provides that during the pendency of any

representation petition, parties must maintain existing recognitions

and adhere to the terms and conditions of existing collective

bargaining agreements. These aspects of the section reflect existing

case law requirements. E.g., U.S. Department of the Navy, Naval Air

Engineering Center, Lakehurst, New Jersey, 3 FLRA 568 (1980);

Department of Energy, 2 FLRA 838 (1980). Subsection (a) also provides

that, during such pendency, parties must fulfill all other

representational and bargaining responsibilities. In part, this aspect

of subsection (a) reflects existing requirements. See, e.g., Department

of the Interior, Bureau of Reclamation, Yuma Projects Office, Yuma

Arizona, 4 FLRC 486, 497 (1976) (during pendency of a representation

petition, if an agency ``must make changes in otherwise negotiable

personnel policies and practices and matters affecting working

conditions, then the agency must notify the incumbent union or unions

of those proposed changes and, upon request, negotiate on those matters

* * *''). However, subsection (a) would alter existing law by

permitting changes after representational and collective bargaining

responsibilities under the Statute are satisfied. Additionally,

subsection (a) departs from existing law insofar as it would require

parties to, among other things, bargain over and execute a term

agreement during the pendency of certain petitions. E.g., Immigration

and Naturalization Service, 16 FLRA 80, 87 (1984) (agency did not

violate the Statute by refusing to bargain over changes in negotiated

promotion plan during pendency of a question concerning representation

because such bargaining ``would necessarily have led to changes in

conditions of employment * * * which the [r]espondent was required to

maintain to the maximum extent possible''). Subsection (b) permits

parties to take actions consistent with their position regarding the

unit status of individual employees, subject to challenge and review.

For example, an agency may refuse to process, under a negotiated

grievance procedure, a

[[Page 39881]]

grievance filed by an employee who it claims is outside a recognized

bargaining unit. This refusal to process is subject to challenge by the

exclusive representative of the relevant unit. Subsection (b) is

consistent with existing case law requirements, which recognize that,

in situations such as these, a party acts at its peril in taking

actions based on its position regarding an employee's unit status.

List of Subjects in 5 CFR Parts 2421 and 2422

Administrative practice and procedure, Government employees, Labor-

management relations.

For the reasons set forth in the preamble, the Federal Labor

Relations Authority proposes to amend Part 2421 and revise Part 2422 of

its regulations as follows:

PART 2421--MEANING OF TERMS AS USED IN THIS SUBCHAPTER

1. The authority citation for Part 2421 continues to read as

follows:

Authority: 5 U.S.C. 7134.

2. Section 2421.11 is revised to read as follows:

Sec. 2421.11 Party.

Party means:

(a) Any labor organization, employing agency or activity or

individual

(1) Filing a charge, petition, or request;

(2) Named as

(i) A charged party in a charge,

(ii) A respondent in a complaint, or

(iii) An employing agency or activity or an incumbent labor

organization in a petition;

(3) Whose intervention in a proceeding has been permitted or

directed by the Authority; or

(4) Who participated as a party

(i) In a matter that was decided by an agency head under 5 U.S.C.

7117, or

(ii) In a matter where the award of an arbitrator was issued; and

(b) The General Counsel, or the General Counsel's designated

representative, in appropriate proceedings.

3. Sections 2421.18 through 2421.22 are added to read as follows:

Sec. 2421.18 Petitioner.

Petitioner means the party filing a petition under Part 2422 of

this Subchapter.

Sec. 2421.19 Eligibility period.

Eligibility period means the payroll period during which an

employee must be in an employment status with an activity or agency in

order to be eligible to vote in a representation election under Part

2422 of this Subchapter.

Sec. 2421.20 Election agreement.

Election agreement means an agreement under Part 2422 of this

Subchapter signed by all the parties, and approved by the Regional

Director, concerning the details and procedures of a representation

election in an appropriate unit.

Sec. 2421.21 Affected by issues raised.

The phrase affected by issues raised, as used in Part 2422, should

be construed broadly to include parties and other labor organizations,

agencies or activities, or bargaining units that have a connection to

questions presented in a proceeding.

Sec. 2421.22 Determinative challenged ballots.

Determinative challenged ballots are challenges that are unresolved

prior to the tally and sufficient in number after the tally to affect

the results of the election.

4. Part 2422 is revised to read as follows:

PART 2422--REPRESENTATION PROCEEDINGS

Sec.

2422.1 Purposes of a petition.

2422.2 Who may file a petition.

2422.3 Contents of a petition.

2422.4 Service requirements.

2422.5 Filing petitions.

2422.6 Notification of filing.

2422.7 Posting notice of filing of a petition.

2422.8 Intervention and cross petitions.

2422.9 Adequacy of showing of interest.

2422.10 Validity of showing of interest.

2422.11 Challenge to the status of a labor organization.

2422.12 Timeliness of petitions seeking an election.

2422.13 Resolution of issues raised by a petition.

2422.14 Effect of withdrawal/dismissal.

2422.15 Duty to furnish information.

2422.16 Election agreements or directed elections.

2422.17 Notice of Hearing.

2422.18 Hearing Procedures.

2422.19 Motions.

2422.20 Rights of parties at a hearing.

2422.21 Duties and powers of the Hearing Officer.

2422.22 Objections to the conduct of the hearing.

2422.23 Election procedures.

2422.24 Challenged ballots.

2422.25 Tally of ballots.

2422.26 Objections to the election.

2422.27 Determinative challenged ballots and objections.

2422.28 Runoff elections.

2422.29 Inconclusive elections.

2422.30 Regional Director investigations, notices of hearings,

actions and Decisions and Orders.

2422.31 Application for review of a Regional Director Decision and

Order.

2422.32 Certifications and Revocations.

2422.33 Relief obtainable under Part 2423.

2422.34 Rights and obligations during the pendency of

representation proceedings.

Authority: 5 U.S.C. 7134.

Sec. 2422.1 Purposes of a petition.

A petition may be filed for the following purposes:

(a) Elections or Eligibility for dues allotment. To request:

(1) (i) An election to determine if employees in an appropriate

unit wish to be represented for the purpose of collective bargaining by

an exclusive representative, and/or

(ii) A determination of eligibility for dues allotment in an

appropriate unit without an exclusive representative; or

(2) an election to determine if employees in a unit no longer wish

to be represented for the purpose of collective bargaining by an

exclusive representative. Petitions under this subsection must be

accompanied by an appropriate showing of interest.

(b) Clarification or Amendment. To clarify, and/or amend:

(1) A recognition or certification then in effect; and/or

(2) Any other matter relating to representation.

(c) Consolidation. To consolidate two or more units, with or

without an election, in an agency and for which a labor organization is

the exclusive representative.

Sec. 2422.2 Who may file a petition.

A representation petition may be filed by: an individual; a labor

organization; two or more labor organizations acting as a joint-

petitioner; an individual acting on behalf of any employee(s); an

activity or an agency; or a combination of the above, Provided, that

petitions requiring by a showing of interest may be filed only by an

individual or a labor organization.

Sec. 2422.3 Contents of a petition.

(a) What to file. A petition must be filed on a form prescribed by

the Authority and contain the following information:

(1) The name and mailing address for each activity or agency

affected by issues raised in the petition, including street number,

city, state and zip code.

(2) The name, mailing address and work telephone number of the

contact person for each activity or agency affected by issues raised in

the petition.

(3) The name and mailing address for each labor organization

affected by issues raised in the petition, including street number,

city, state and zip code. If a labor organization is affiliated with

[[Page 39882]]

a national organization, the local designation and the national

affiliation should both be included. If a labor organization is an

exclusive representative of any of the employees affected by issues

raised in the petition, the date of the recognition or certification

and the date any collective bargaining agreement covering the unit will

expire or when the most recent agreement did expire should be included,

if known.

(4) The name, mailing address and work telephone number of the

contact person for each labor organization affected by issues raised in

the petition.

(5) The name and mailing address for the petitioner, including

street number, city, state and zip code. If a labor organization

petitioner is affiliated with a national organization, the local

designation and the national affiliation should both be included.

(6) A description of the unit(s) affected by issues raised in the

petition. The description should generally indicate the geographic

locations and the classifications of the employees included (or sought

to be included) in, and excluded (or sought to be excluded) from, the

unit.

(7) The approximate number of employees in the unit(s) affected by

issues raised in the petition.

(8) A clear and concise statement of the issues raised by the

petition and the results the petitioner seeks.

(9) A declaration by the person signing the petition, under the

penalties of the Criminal Code (18 U.S.C. 1001), that the contents of

the petition are true and correct to the best of the person's knowledge

and belief.

(10) The signature, title, mailing address and telephone number of

the person filing the petition.

(b) Compliance with 5 U.S.C. 7111(e). A labor organization/

petitioner complies with 5 U.S.C. 7111(e) by submitting to the agency

or activity and to the Department of Labor a roster of its officers and

representatives, a copy of its constitution and bylaws, and a statement

of its objectives. By signing the petition form, the labor

organization/petitioner certifies that it has submitted these documents

to the activity or agency and to the Department of Labor.

(c) Showing of interest supporting a representation petition. When

filing a petition requiring a showing of interest, the petitioner must:

(1) So indicate on the petition form;

(2) Submit with the petition a showing of interest of not less than

thirty percent (30%) of the employees in the unit involved in the

petition; and

(3) Include an alphabetical list of the names constituting the

showing of interest.

(d) Petition seeking dues allotment. When there is no exclusive

representative, a petition seeking certification for dues allotment

shall be accompanied by a showing of membership in the petitioner of

not less than ten percent (10%) of the employees in the unit claimed to

be appropriate. An alphabetical list of names constituting the showing

of membership must be submitted.

Sec. 2422.4 Service requirements.

Option 1

Unless otherwise specifically provided, every petition, motion,

brief, request, challenge, written objection, or application for review

shall be served on all parties affected by issues raised in the filing.

The service shall include all documentation in support thereof, with

the exception of a showing of interest. The filer must submit a written

statement of service to the Regional Director.

Option 2

Unless otherwise specifically provided, every petition, motion,

brief, request, challenge, written objection, or application for review

shall be served on all parties affected by issues raised in the filing.

The service shall include all documentation in support thereof, with

the exception of a showing of interest, challenges to a showing of

interest, and documentation supporting challenges and objections. The

filer must submit a written statement of service to the Regional

Director.

Sec. 2422.5 Filing petitions.

(a) Where to file. Petitions must be filed with the Regional

Director for the region in which the unit or employee(s) affected by

issues raised in the petition are located. If the unit(s) or employees

are located in two or more regions of the Authority, the petitions must

be filed with the Regional Director for the region in which the

headquarters of the agency or activity is located.

(b) Number of copies. An original and two (2) copies of the

petition and the accompanying material must be filed with the Regional

Director.

(c) Date of filing. A petition is filed when it is received by the

appropriate Regional Director.

Sec. 2422.6 Notification of filing.

(a) Notification to interested parties. After a petition is filed,

the Regional Director will notify any labor organization, agency or

activity the parties have indicated as being affected by issues raised

by the petition, or any other interested party known to the Regional

Director, that a petition has been filed with the Regional Director.

(b) Contents of the notification. The notification will inform the

labor organization, agency or activity of:

(1) The name of the petitioner;

(2) The description of the unit or employees affected by issues

raised in the petition; and,

(3) A statement that all affected parties should advise the

Regional Director in writing of their interest in the issues raised in

the petition.

Sec. 2422.7 Posting notice of filing of a petition.

(a) Posting notice of petition. When appropriate, the Regional

Director, after the filing of a representation petition, will direct

the agency or activity to post copies of a notice to all employees in

places where notices are normally posted for the employees affected by

issues raised in the petition and/or in a manner by which notices are

normally distributed.

(b) Contents of notice. The notice shall advise affected employees

and interested parties about the petition.

(c) Duration of notice. The notice should be conspicuously posted

for a period of ten (10) days and not be altered, defaced, or covered

by other material.

Sec. 2422.8 Intervention and cross-petitions.

(a) Cross-petitions. A cross-petition is a petition seeking an

election in a unit which includes any employees in a unit covered by a

pending representation petition. Cross-petitions must be filed in

accordance with this subpart.

(b) Intervention requests and cross-petitions. A request to

intervene and a cross-petition, accompanied by any necessary showing of

interest, must be submitted in writing and/or filed and submitted to

the Regional Director prior to a hearing, or to the Hearing Officer

after the hearing opens but before it closes. If no hearing is held, a

request to intervene and a cross-petition must be filed prior to action

being taken pursuant to Sec. 2422.30.

(c) Labor organization intervention requests. Except for incumbent

intervenors, a labor organization seeking to intervene shall submit a

statement that it has complied with 5 U.S.C. 7111(e) and one of the

following:

(1) A showing of interest of ten percent (10%) or more of the

employees in the unit covered by a petition seeking an election, with

an alphabetical list of the names of the employees constituting the

showing of interest; or

(2) A current or recently expired collective bargaining agreement

[[Page 39883]]

covering any of the employees in the unit affected by issues raised in

the petition; or

(3) Evidence that it is or was, prior to a reorganization, the

recognized or certified exclusive representative of any of the

employees affected by issues raised in the petition.

(d) Incumbent intervention. An incumbent exclusive representative,

without regard to the requirements of paragraph (c) of this section,

will be considered an intervenor in any representation proceeding

raising issues that affect employees the incumbent represents, unless

it serves the Regional Director with a written disclaimer of any

representation interest in the claimed unit.

(e) Agency or activity intervention. An agency or activity seeking

to intervene in any representation proceeding must submit evidence that

one or more employees of the agency or activity may be affected by

issues raised in the petition.

Sec. 2422.9 Adequacy of showing of interest.

(a) Adequacy. Adequacy of a showing of interest refers to the

percentage of employees in the unit involved as required by

Secs. 2422.3 (c) and (d) and 2422.8(c)(1).

(b) Regional Director investigation and Decision and Order. The

Regional Director will conduct such investigation as deemed

appropriate. A Regional Director's determination that the showing of

interest is adequate is final and binding and not subject to collateral

attack at a representation hearing or on appeal to the Authority. If

the Regional Director determines that a showing of interest is

inadequate, the Regional Director will issue a Decision and Order

dismissing the petition, or denying a request for intervention.

Sec. 2422.10 Validity of showing of interest.

(a) Validity. Validity questions are raised by challenges to a

showing of interest on grounds other than adequacy.

(b) Validity challenge. The Regional Director or any party may

challenge the validity of a showing of interest.

(c) When and where validity challenges may be filed. Party

challenges to the validity of a showing of interest must be in writing

and submitted to the Regional Director prior to a hearing, or to the

Hearing Officer after the hearing opens but before it closes. If no

hearing is held, challenges to the validity of a showing of interest

must be filed prior to action being taken pursuant to Sec. 2422.30.

(d) Contents of validity challenges. Challenges to the validity of

a showing of interest must be supported with evidence.

(e) Regional Director investigation and Decision and Order. The

Regional Director will conduct such investigation as deemed

appropriate. The Regional Director's determination that a showing of

interest is valid is final and binding and is not subject to collateral

attack or appeal to the Authority. If the Regional Director finds that

the showing of interest is not valid, the Regional Director will issue

a Decision and Order dismissing the petition or denying the request to

intervene.

Sec. 2422.11 Challenge to the status of a labor organization.

(a) Basis of challenge to labor organization status. The only basis

on which a challenge to the status of a labor organization may be made

is compliance with 5 U.S.C. 7103(a)(4).

(b) Format and time for filing a challenge. Any party filing a

challenge to the status of a labor organization involved in the

processing of a petition must do so in writing to the Regional Director

prior to a hearing, or to the Hearing Officer after the hearing opens

but before it closes. If no hearing is held, challenges must be filed

prior to action being taken pursuant to Sec. 2422.30.

Sec. 2422.12 Timeliness of petitions seeking an election.

(a) Election bar. Where there is no certified exclusive

representative, a petition seeking an election will not be considered

timely if filed within twelve (12) months of a valid election involving

the same unit or a subdivision of the same unit.

(b) Certification bar. Where there is a certified exclusive

representative of employees, a petition seeking an election will not be

considered timely if filed within twelve (12) months after the

certification of the exclusive representative of the employees in an

appropriate unit. If a collective bargaining agreement is signed and

dated covering the claimed unit, paragraphs (c), (d), and (e) of this

section apply.

(c) Bar during 5 U.S.C. 7114(c) agency head review. A petition

seeking an election will not be considered timely if filed during the

period of agency head review under 5 U.S.C. 7114(c). This bar expires

upon either the passage of thirty (30) days absent agency head action,

or upon the date of any timely agency head action.

(d) Contract bar where the contract is for three (3) years or less.

Where a collective bargaining agreement has been signed and dated

covering the claimed unit and has a term of three (3) years or less

from the date it became effective, a petition seeking an election will

be considered timely if filed not more than one hundred and five (105)

and not less than sixty (60) days prior to the expiration of the

agreement.

(e) Contract bar where the contract is for three (3) years or more.

Where a collective bargaining agreement has been signed and dated

covering the claimed unit and has a term of three (3) years or more

from the date it became effective, a petition seeking an election will

be considered timely if filed not more than one hundred and five (105)

days and not less than sixty (60) days prior to the expiration of the

initial three (3) year period, and any time after the expiration of the

initial three (3) year period.

(f) Unusual circumstances. A petition seeking an election or a

determination relating to representation matters may be filed at any

time when unusual circumstances exist that substantially affect the

unit or majority representation.

(g) Premature extension. Where a collective bargaining agreement

with a term of three (3) years or less has been extended and signed

more than sixty (60) days before its expiration date, the extension

will not serve as a basis for dismissal of a petition seeking an

election filed in accordance with this section.

(h) Contract requirements. Collective bargaining agreements,

including agreements that go into effect under 5 U.S.C. 7114(c) and

those that automatically renew without further action by the parties,

do not constitute a bar to a petition seeking an election under this

section unless a clear and unambiguous effective date, renewal date

where applicable, duration, and termination date are ascertainable from

the agreement and relevant accompanying documentation.

Sec. 2422.13 Resolution of issues raised by a petition.

(a) Meetings prior to filing a representation petition. All parties

affected by the representation issues that may be raised in a petition

are encouraged to meet prior to the filing of the petition to discuss

their interests and narrow and resolve the issues. If requested by all

parties a representative of the appropriate Regional Office will

participate in these meetings.

(b) Meetings to narrow and resolve the issues after the petition is

filed. After a petition is filed, the Regional Director may require all

affected parties to meet to narrow and resolve the issues raised in the

petition.

[[Page 39884]]

Sec. 2422.14 Effect of withdrawal/dismissal.

(a) Withdrawal/dismissal less than sixty (60) days before contract

expiration. When a petition seeking an election that has been timely

filed is withdrawn by the petitioner or dismissed by the Regional

Director less than sixty (60) days prior to the expiration of an

existing agreement between the incumbent exclusive representative and

the activity or any time after the expiration of the agreement, another

petition seeking an election will not be considered timely if filed

within a ninety (90) day period from either:

(1) The date the withdrawal is approved; or

(2) The date the petition is dismissed by the Regional Director

when no application for review is filed with the Authority; or

(3) The date the Authority rules on an application for review.

Other pending petitions that have been timely filed under this Part

will continue to be processed.

(b) Withdrawal less than three (3) days prior to a hearing or after

approval of an election agreement. A petitioner who submits a

withdrawal request for a petition seeking an election that is received

by the Regional Director will be barred from filing another petition

seeking an election for the same unit or any subdivision of the unit

for six (6) months from the date of the approval of the withdrawal by

the Regional Director if such request is filed:

(1) Within three (3) days before a hearing is scheduled to be held;

or

(2) After the approval by the Regional Director of an election

agreement or direction of an election by the Regional Director under

Sec. 2422.16.

(c) Withdrawal of incumbent prior to an election. When an election

is not held because the incumbent disclaims any representation interest

in a unit, a petition by the incumbent seeking an election involving

the same unit or a subdivision of the same unit will not be considered

timely if filed within six (6) months of cancellation of the election.

Sec. 2422.15 Duty to furnish information.

(a) Relevant information. After a petition is filed, all parties

must, upon request of the Regional Director, furnish the Regional

Director and serve all parties affected by issues raised in the

petition with information concerning parties, issues, and agreements

raised in or affected by the petition.

(b) Inclusions and exclusions. After a petition seeking an election

is filed, the Regional Director may direct the agency or activity to

furnish the Regional Director and all parties affected by issues raised

in the petition with a current alphabetized list of employees and job

classifications included in and/or excluded from the existing or

claimed unit affected by issues raised in the petition.

(c) Cooperation. The failure to submit supporting information or to

cooperate fully in the investigation of the petition or request to

intervene may result in dismissal.

Sec. 2422.16 Election agreements or directed elections.

(a) Election agreements. Parties are encouraged to enter into

election agreements.

(b) Regional Director directed election. If the parties are unable

to agree on procedural matters, specifically, the eligibility period,

dates, hours, or locations of the election, the Regional Director will

decide election procedures and issue a Direction of an Election,

without prejudice to the rights of a party to file objections to the

procedural conduct of the election.

(c) Opportunity for a hearing. Before directing an election, the

Regional Director shall provide affected parties an opportunity for a

hearing on other than procedural matters and, thereafter may:

(1) Issue a Decision and Order; or

(2) If there are no questions regarding the unit appropriateness,

issue a Direction of Election without a Decision and Order.

(d) Challenges or objections to a directed election. A Direction of

Election issued under this section will be issued without prejudice to

the right of a party to file a challenge to the eligibility of any

person participating in the election and/or objections to the election.

Sec. 2422.17 Notice of hearing.

(a) Purpose of notice of a hearing. The Regional Director may issue

a notice of hearing involving any issues raised in the petition.

(b) Contents. The notice of hearing will be served on all

interested parties and will advise affected employees and interested

parties about the hearing.

(c) Prehearing conference. The Hearing Officer will schedule a

prehearing conference, either by meeting or teleconference. All parties

must participate in a prehearing conference and be prepared to fully

discuss, narrow and resolve the issues set forth in the notice of

hearing.

(d) No appeal of hearing determination. A Regional Director's

determination to issue a notice of hearing is not appealable to the

Authority.

Sec. 2422.18 Hearing procedures.

(a) Purpose of a hearing. Representation hearings are considered

investigatory and not adversarial. The purpose of the hearing is to

develop a full and complete record of relevant and material facts.

(b) Conduct of hearing. Hearings will be open to the public unless

otherwise ordered by the Hearing Officer. There is no burden of proof,

with the exception of proceedings on objections to elections as

provided for in Sec. 2422.27(b). Formal rules of evidence do not apply.

(c) Hearing officer. Hearings will be conducted by a Hearing

Officer appointed by the Regional Director. Another Hearing Officer may

be substituted for the presiding Hearing Officer at any time.

(d) Transcript. An official reporter will make the official

transcript of the hearing. Copies of the official transcript may be

examined in the appropriate Regional Office during normal working

hours. Requests by parties to purchase copies of the official

transcript should be made to the official hearing reporter.

Sec. 2422.19 Motions.

(a) Purpose of a motion. Subsequent to the issuance of a Notice of

Hearing in a representation proceeding, a party seeking a ruling, an

order, or relief must do so by filing or raising a motion stating the

order or relief sought and the grounds therefor. Challenges and other

filings referenced in other sections of this subpart may, in the

discretion of the Regional Director or Hearing Officer, be treated as a

motion.

(b) Prehearing motions. Prehearing motions must be filed in writing

with the Regional Director. Any response must be filed with the

Regional Director within five (5) days after service of the motion. The

Regional Director may rule on the motion or refer the motion to the

Hearing Officer.

(c) Motions made at the hearing. (1) During the hearing, motions

will be made to the Hearing Officer and may be oral on the record,

unless otherwise required in this subpart to be in writing. Responses

may be oral on the record or in writing, but, absent permission of the

Hearing Officer, must be provided before the hearing closes. When

appropriate, the Hearing Officer will rule on motions made at the

hearing or referred to the Hearing Officer by the Regional Director.

(2) When a motion to intervene pursuant to Sec. 2422.8 is made at

the hearing, the Hearing Officer will either grant the motion, deny the

motion, or conditionally allow participation in the hearing pending the

Regional Director's ruling on the motion.

[[Page 39885]]

(d) Posthearing motions. Motions made after the hearing closes must

be filed in writing with the Regional Director. Any response to a

posthearing motion must be filed with the Regional Director within five

(5) days after service of the motion.

Sec. 2422.20 Rights of parties at a hearing.

(a) Rights. A party at a hearing will have the right:

(1) To appear in person or by a representative;

(2) To examine and cross-examine witnesses; and

(3) To introduce into the record relevant evidence.

(b) Documentary evidence and stipulations. Parties must submit two

(2) copies of documentary evidence to the Hearing Officer and a copy to

all other parties. Stipulations of fact between the parties may be

introduced into evidence.

(c) Oral argument. Parties will be entitled to a reasonable period

prior to the close of the hearing for oral argument. Presentation of a

closing oral argument does not preclude a party from filing a brief

under paragraph (d) of this section.

(d) Briefs. A party will be afforded an opportunity to file a brief

with the Regional Director.

(1) An original and two (2) copies of a brief must be filed with

the Regional Director within thirty (30) days from the close of the

hearing.

(2) A written request for an extension of time to file a brief must

be filed with and received by the Regional Director no later than five

(5) days before the date the brief is due.

(3) No reply brief may be filed without permission of the Regional

Director.

Sec. 2422.21 Duties and powers of the Hearing Officer.

Option 1

(a) Duty of the Hearing Officer. The Hearing Officer will receive

evidence and inquire fully into the relevant and material facts

concerning the matters that are the subject of the hearing.

Option 2

(a) Duty of the Hearing Officer. The Hearing Officer will receive

evidence, inquire fully into the relevant and material facts concerning

the matters that are the subject of the hearing, and may make

recommendations on the record to the Regional Director.

(b) Powers of the Hearing Officer. During the period a case is

assigned to a Hearing Officer by the Regional Director and prior to the

close of the hearing, the Hearing Officer may take any action necessary

to schedule, conduct, continue, control, and regulate the hearing,

including ruling on motions when appropriate.

Sec. 2422.22 Objections to the conduct of the hearing.

(a) Objections. Objections are oral or written complaints

concerning the conduct of a hearing.

(b) Exceptions to rulings. There are automatic exceptions to all

adverse rulings.

Sec. 2422.23 Election procedures.

(a) Regional Director conducts or supervises election. The election

will either be conducted or supervised by the Regional Director.

(b) Notice of election. Prior to the election a notice of election,

prepared by the Regional Director, will be posted by the activity in

places where notices to employees are customarily posted and/or in a

manner by which notices are normally distributed. The notice of

election will contain the details and procedures of the election,

including the appropriate unit, the eligibility period, the date(s),

hour(s) and location(s) of the election, a sample ballot, and the

effect of the vote.

(c) Sample ballot. The reproduction of any document purporting to

be a copy of the official ballot that suggests either directly or

indirectly to employees that the Authority endorses a particular choice

in the election may constitute grounds for setting aside an election if

objections are filed under Sec. 2422.26.

(d) Secret ballot. All elections will be by secret ballot.

(e) Intervenor withdrawal from ballot. When two or more labor

organizations are included as choices in an election, an intervening

labor organization may, prior to the approval of an election agreement

or before the direction of an election procedures, file a written

request with the Regional Director to remove its name from the ballot.

If the request is not received prior to the approval of an election

agreement or before the direction of an election, unless the parties

and the Regional Director agree otherwise, the intervening labor

organization will remain on the ballot. The Regional Director's

decision on the request is final and not subject to the filing of an

application for review to the Authority.

(f) Incumbent withdrawal from ballot in an election to decertify an

incumbent representative. When there is no intervening labor

organization, an election to decertify an incumbent exclusive

representative will not be held if the incumbent provides the Regional

Director with a written disclaimer of any representation interest in

the unit. When there is an intervenor, an election will be held if the

intervening labor organization proffers a thirty percent (30%) showing

of interest within the time period established by the Regional

Director.

(g) Petitioner withdraws from ballot in an election. When there is

no intervening labor organization, an election will not be held if the

petitioner provides the Regional Director with a written request to

withdraw the petition. When there is an intervenor, an election will be

held if the intervening labor organization proffers a thirty percent

(30%) showing of interest within the time period established by the

Regional Director.

(h) Observers. All parties are entitled to representation at the

polling location(s) by observers of their own selection subject to the

Regional Director's approval.

(1) Parties desiring to name observers must file in writing with

the Regional Director a request for specifically named observers at

least fifteen (15) days prior to an election. The Regional Director may

grant an extension of time for filing a request for specifically named

observers for good cause where a party requests such an extension or on

the Regional Director's own motion. The request must name and identify

the observers requested.

(2) An agency or activity may not use as its observer:

(i) Supervisory or managerial personnel;

(ii) Employees eligible to vote in the election;

(iii) Employees who have any official connection with any of the

labor organizations involved; or

(iv) Non-employees of the Federal government.

(3) A labor organization may not use as its observer:

(i) Supervisory or managerial personnel;

(ii) Non-employees of the Federal government; or

(iii) Employees on leave without pay status who are working for the

labor organization involved.

(4) Objections to a request for specific observers must be filed

with the Regional Director stating the reasons in support within five

(5) days after service of the request.

(5) The Regional Director's ruling on requests for and objections

to observers is final and binding and is not subject to the filing of

an application for review with the Authority.

Sec. 2422.24 Challenged ballots.

(a) Filing challenges. A party or the Regional Director may, for

good cause,

[[Page 39886]]

challenge the eligibility of any person to participate in the election

prior to the employee voting.

(b) Challenged ballot procedure. An individual whose eligibility to

vote is in dispute will be given the opportunity to vote a challenged

ballot. If the parties and the Region are unable to resolve the

challenged ballot(s) prior to the tally of ballots, the unresolved

challenged ballots will be impounded and preserved until a

determination can be made, if necessary, by the Regional Director.

Sec. 2422.25 Tally of ballots.

(a) Tallying the ballots. When the election is concluded, the

Regional Director will tally the ballots.

(b) Service of the tally. When the tally is completed, the Regional

Director will serve the tally of ballots to the parties in accordance

with the election agreement or direction of election.

(c) Valid ballots cast. Representation will be determined by the

majority of the valid ballots cast.

Sec. 2422.26 Objections to the election.

(a) Filing objections to the election. Objections to the procedural

conduct of the election or to conduct that may have improperly affected

the results of the election must be submitted to the Regional Director.

Objections must be filed and received by the Regional Director within

five (5) days after the tally of ballots has been furnished. Any

objections must be timely regardless of whether the challenged ballots

are sufficient in number to affect the results of the election. The

objections must be supported by clear and concise reasons. An original

and two (2) copies of the objections must be received by the Regional

Director.

(b) Supporting evidence. The objecting party must file with the

Regional Director evidence, including signed statements, documents and

other materials supporting the objections within ten (10) days after

the objections are filed.

Sec. 2422.27 Determinative challenged ballots and objections.

(a) Investigation. The Regional Director will investigate

objections and/or determinative challenged ballots that are sufficient

in number to affect the results of the election.

(b) Burden of proof. A party filing objections to the election

bears the burden of proof by a preponderance of the evidence concerning

those objections. However, no party bears the burden of proof on

challenged ballots.

(c) Consolidated hearing on objections and/or determinative

challenged ballots and an unfair labor practice hearing. When

appropriate, and in accordance with Sec. 2422.33, objections and/or

determinative challenged ballots may be consolidated with an unfair

labor practice hearing. Such consolidated hearings will be conducted by

an Administrative Law Judge. Exceptions and related submissions must be

filed with the Authority and the Authority will issue a decision in

accordance with Part 2423 of this chapter, except for the following:

(1) Sections 2423.18 and 2423.19(j) of this Subchapter concerning

the burden of proof and settlement conferences are not applicable;

(2) The Administrative Law Judge may not recommend remedial action

to be taken or notices to be posted as provided by Sec. 2423.26(a) of

this Subchapter; and,

(3) References to ``charge'' and ``complaint'' in Sec. 2423.26(b)

of this chapter will be omitted.

(d) Regional Director Action. After investigation, the Regional

Director will take appropriate action consistent with Sec. 2422.30.

Sec. 2422.28 Runoff elections.

(a) When a runoff may be held. A runoff election is required in an

election involving at least three (3) choices, one of which is ``no

union'' or ``neither,'' when no choice receives a majority of the valid

ballots cast. However, a runoff may not be held until the Regional

Director has ruled on objections to the election and determinative

challenged ballots.

(b) Eligibility. Employees who were eligible to vote in the

original election and who are also eligible on the date of the runoff

election may vote in the runoff election.

(c) Ballot. The ballot in the runoff election will provide for a

selection between the two choices receiving the largest and second

largest number of votes in the election.

Sec. 2422.29 Inconclusive elections.

(a) What is an inconclusive election. An inconclusive election is

one where challenged ballots are not sufficient to affect the outcome

of the election and one of the following occurs:

(1) The ballot provides for at least three (3) choices, one of

which is ``no union'' or ``neither'' and the votes are equally divided;

or

(2) The ballot provides for at least three (3) choices, the choice

receiving the highest number of votes does not receive a majority, and

at least two other choices receive the next highest and same number of

votes; or

(3) When a runoff ballot provides for a choice between two labor

organizations and results in the votes being equally divided; or

(4) When the Regional Director determines that there have been

significant procedural irregularities.

(b) Eligibility to vote in a rerun election. A current payroll

period will be used to determine eligibility to vote in a rerun

election.

(c) Ballot. If the Regional Director determines that the election

is inconclusive, the election will be rerun with all the choices that

appeared on the original ballot.

(d) Number of reruns. There will be only one rerun of an

inconclusive election. If the rerun results in another inconclusive

election, the tally of ballots will indicate a majority of valid

ballots has not been cast for any choice and a certification of results

will be issued. If necessary, a runoff may be held when an original

election is rerun.

Sec. 2422.30 Regional Director investigations, notices of hearings,

actions, and Decisions and Orders.

(a) Regional Director investigation. The Regional Director will

make such investigation of the petition and any other matter as the

Regional Director deems necessary.

(b) Regional Director notice of hearing. The Regional Director will

issue a notice of hearing to inquire into any matter about which a

material issue of fact exists, and any time there is reasonable cause

to believe a question exists regarding unit appropriateness.

(c) Regional Director action and Decision and Order. After

investigation and/or hearing, when a hearing has been ordered, the

Regional Director will resolve the matter in dispute and, when

appropriate, issue a Decision and Order.

(d) Appeal of Regional Director Decision and Order. A party may

file with the Authority an application for review of a Regional

Director Decision and Order.

(e) Contents of the Record. When no hearing has been conducted all

material submitted to and considered by the Regional Director during

the investigation becomes a part of the record. When a hearing has been

conducted, the transcript and all material entered into evidence,

including any posthearing briefs, become a part of the record.

Sec. 2422.31 Application for review of a Regional Director Decision

and Order.

(a) Filing an application for review. A party must file an

application for review with the Authority within sixty (60) days of the

Regional Director's Decision and Order. The sixty (60) day time limit

provided for in 5 U.S.C. 7105(f) may not be extended or waived.

[[Page 39887]]

(b) Contents. An application for review must be sufficient to

enable the Authority to rule on the application without recourse to the

record. An application must specify the matters and rulings to which

exception(s) is taken, include a summary of evidence relating to any

issue raised in the application, and make specific reference to page

citations in the transcript if a hearing was held. An application may

not raise any issue or rely on any facts not timely presented to the

Hearing Officer or Regional Director.

Option 1

(c) Review. The Authority may grant an application for review only

where it appears that compelling reasons exist therefor. Accordingly,

an application for review may be granted only upon one or more of the

following grounds:

(1) The decision raises an issue for which there is an absence of

precedent or the decision is based upon a clear error in application of

law or policy;

(2) The decision is based on law or policy which clearly warrants

reconsideration;

(3) The conduct of a hearing or a procedural ruling has resulted in

prejudicial error;

(4) The Regional Director's decision regarding a substantial

factual issue was clearly erroneous and prejudicially affected the

rights of a party;

Option 2

(c) Review. (1) Assertions required for review. The Authority will

grant an application for review when a party filing has specifically

asserted and established that:

(i) Review of the decision is warranted on one or more of the

grounds set forth in paragraph (c)(2) of this section and,

(ii) The Authority's decision will have a substantial impact on

labor-management relations law, as set forth in paragraph (c)(3) of

this section.

(2) Grounds warranting review. A filing party must assert and

establish that review of a Regional Director's decision is warranted on

one or more of the following grounds:

(i) The decision raises an issue for which there is an absence of

precedence or the decision is based upon a clear error in application

of law or policy;

(ii) The decision is based on law or policy which clearly warrants

reconsideration;

(iii) The conduct of a hearing or a procedural ruling has resulted

in prejudicial error;

(iv) The Regional Director's decision regarding a substantial

factual issue was clearly erroneous and prejudicially affected the

rights of a party;

(3) Substantial impact on labor-management relations law. In

addition to the requirements set forth in subsection (d), a filing

party must assert and establish that the Authority's decision will have

a substantial impact on labor-management relations law. Such impact may

be found, but is not limited to, situations where:

(i) The Regional Director's Decision is likely to have a

substantial impact in cases other than the one(s) directly involved in

the decision; or

(ii) Review would resolve a question of particular importance to

the Federal sector labor-management relations program.

(4) Discretionary determination of Authority to review.

Notwithstanding paragraphs (c), (d), and (e) of this section, an

application for review may be granted when, in the Authority's

discretion, extraordinary circumstances exist for reviewing the

Regional Director's Decision and Order.

(d) Opposition. A party may file with the Authority an opposition

to an application for review within ten (10) days after the party is

served with the application. A copy must be served on the Regional

Director and all other parties and a statement of service must be filed

with the Authority.

(e) Regional Director Decision and Order becomes the Authority's

action. A Decision and Order of a Regional Director becomes the action

of the Authority when:

(1) No application for review is filed with the Authority within

sixty (60) days after the date of the Regional Director's Decision and

Order; or

(2) A timely application for review is filed with the Authority and

the Authority does not undertake to grant review of the Regional

Director's Decision and Order within sixty (60) days of the filing of

the application; or

(3) The Authority denies an application for review of the Regional

Director's Decision and Order.

(f) Authority grant of review and stay. The Authority may rule on

the issue(s) in an application for review in its order granting the

application for review. Neither filing nor granting an application for

review does not stay any action ordered by the Regional Director unless

specifically ordered by the Authority.

(g) Briefs if review is granted. If the Authority does not rule on

the issue(s) in the application for review in its order granting

review, the Authority may, in its discretion, afford the parties an

opportunity to file briefs. The briefs will be limited to the issue(s)

referenced in the Authority's order granting review.

Sec. 2422.32 Certifications and revocations.

(a) Certifications. The Regional Director will issue an appropriate

certification when:

(1) After an election, runoff, or rerun,

(i) No objections are filed or challenged ballots are not

determinative, or

(ii) Objections and determinative challenged ballots are decided

and resolved; or

(2) The Regional Director issues a Decision and Order requiring a

certification and the Decision and Order becomes the action of the

Authority under Sec. 2422.31(h) or the Authority otherwise directs the

issuance of a certification.

(c) Revocations. Without prejudice to any rights and obligations

which may exist under the Statute, the Regional Director will revoke a

recognition or certification, as appropriate, and provide a written

statement of reasons when:

(1) An incumbent exclusive representative files, during a

representation proceeding, a disclaimer of any representational

interest in the unit; or

(2) Due to a substantial change in the character and scope of the

unit, the unit is no longer appropriate and an election is not

warranted.

Sec. 2422.33 Relief obtainable under Part 2423.

Remedial relief that was or could have been obtained as a result of

a motion, objection, or challenge filed or raised under this subpart,

may not be the basis for similar relief if filed or raised as an unfair

labor practice under Part 2423 of this Chapter, Provided, that related

matters may be consolidated for hearing as noted in Sec. 2422.27(c) of

this subpart.

Sec. 2422.34 Rights and obligations during the pendency of

representation proceedings.

(a) Existing recognitions, agreements, and obligations under the

Statute. During the pendency of any representation proceeding, parties

are obligated to maintain existing recognitions, adhere to the terms

and conditions of existing collective bargaining agreements, and

fulfill all other representational and bargaining responsibilities

under the Statute.

(b) Unit status of individual employees. Notwithstanding paragraph

(a) of this section and except as otherwise prohibited by law, a party

may take action based on its position regarding the bargaining unit

status of individual employees, Provided, that its actions may be

challenged, reviewed, and remedied where appropriate.

[[Page 39888]]

Dated: August 1, 1995.

Solly Thomas,

Executive Director, Federal Labor Relations Authority.

[FR Doc. 95-19214 Filed 8-3-95; 8:45 am]

BILLING CODE 6267-01-P