Unfair Labor Practice Proceedings: Miscellaneous and General Requirements

Federal RegisterMay 23, 1997

Ask Donna

What actually matters in this document.

Text

FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Parts 2423 and 2429

Unfair Labor Practice Proceedings: Miscellaneous and General

Requirements

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of proposed rulemaking; notice of meeting.

-----------------------------------------------------------------------

SUMMARY: The Federal Labor Relations Authority proposes to revise

portions of its regulations regarding unfair labor practice (ULP)

proceedings (Part 2423) and miscellaneous and general requirements

(Part 2429). The purpose of the proposed revisions is to streamline the

existing regulations, facilitate dispute resolution, clarify the

matters to be adjudicated, provide more flexibility to the participants

in the ULP process, and simplify the filing and service requirements.

Implementation of the proposed changes will enhance the ULP process,

raising the level of advocacy and facilitating adjudication of ULP

claims.

DATES: Comments must be received on or before June 30, 1997. Meetings

will be held at 10:00 a.m. on June 12, 1997, in Chicago, Illinois, and

at 10:00 a.m. on June 18, 1997, in Washington, D.C.

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

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

Washington, DC 20424-0001. The June 12, 1997 meeting will be held at

the Xerox Centre, 55 West Monroe Street, Room 1610, Chicago, Illinois

60603. The June 18, 1997 meeting will be held at the Federal Labor

Relations Authority's Headquarters, 607 14th St. NW., Washington, DC

20424, 2nd Floor Agenda Room.

FOR FURTHER INFORMATION CONTACT: Regulatory information or registration

for the Washington meeting: Edward Bachman, Office of Case Control, at

the address listed above or by telephone # (202) 482-6540. Registration

for the Chicago meeting: Peter Sutton, Chicago Regional Office, Federal

Labor Relations Authority, 55 West Monroe Street, Suite 1150, Chicago,

Illinois 60603, telephone # (312) 886-3465 ext. 22.

SUPPLEMENTARY INFORMATION: The Federal Labor Relations Authority

established a Task Force to study and evaluate the policies and

procedures in effect concerning the processing of a ULP complaint from

the issuance of the complaint through the transfer of the case to the

Authority after the issuance of a decision and recommended order of an

Administrative Law Judge-- Secs. 2423.12-2423.31 of the current

regulations. To this end, the Task Force published a Federal Register

notice (60 FR 11057) (Mar. 1, 1995) inviting parties to submit written

recommendations on ways to improve the post complaint ULP process. In

addition, the Task Force convened focus groups in order to solicit and

consider customers' views prior to proposing these revisions. The Task

Force's review of the ULP process also included review of certain of

the miscellaneous and general requirements of Part 2429.

The proposed revisions, driven for the most part by the

recommendations of the Task Force and focus group participants,

represent the Federal Labor Relations Authority's intent to simplify,

clarify, and improve the ULP regulations as well as related

miscellaneous and general regulations in Part 2429. The proposed

revisions attempt to eliminate perceptions of unfairness and potential

conflict of interest problems, noted by the Task Force, by moving

certain post-complaint, administrative responsibilities from the

Regional Director to the Office of Administrative Law Judges. Another

major aspect of this revision is the division of Part 2423 into four

sequential subparts: Subpart A--Filing, Investigating, Resolving and

Acting on Charges-- Secs. 2423.2-2423.19; Subpart B--Post Complaint,

Prehearing Procedures--Secs. 2423.20-2423.29; Subpart C--Hearing

Procedures--Secs. 2423.30-2423.39; and Subpart D--Post-transmission and

Exceptions to Authority Procedures--Secs. 2423.40-2423.49. Other than

the minor revisions to Secs. 2423.9 and 2423.11 included in these

proposed revisions, Subpart A, which sets forth the precomplaint

procedures, will be revised at a later date. With regard to Subpart A,

the Office of the General Counsel of the Federal Labor Relations

Authority has already established internal policies to improve the

precomplaint process. Recent examples include the Office of the General

Counsel's policies concerning Settlement, Prosecutorial Discretion,

Scope of Investigation, Intervention, and Quality in ULP

Investigations. Proposed revisions to Subpart A are anticipated for

1998.

In connection with the proposed revisions to Parts 2423 and 2429,

two focus group meetings will be conducted. The first focus group

meeting will be held on June 12, 1997, at the Xerox Centre, 55 West

Monroe Street, Room 1610, Chicago, Illinois 60603, at 10:00 a.m.

Persons interested in attending this first meeting on this proposed

rulemaking should write or call Peter Sutton, Chicago Regional Office,

Federal Labor Relations Authority, 55 West Monroe Street, Suite 1150,

Chicago, Illinois 60603, telephone # (312) 886-3465 ext. 22, to confirm

attendance. The second focus group meeting will be held on June 18,

1997, at the Federal Labor Relations Authority'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 second meeting on this proposed

rulemaking should write or call Edward Bachman, Office of Case Control,

at the address and phone number listed in the preceding section to

confirm attendance.

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 Office of Case Control.

Sectional analyses of the proposed amendments and revisions to Part

2423-- Unfair Labor Practice Proceedings and Part 2429--Miscellaneous

and General Requirements are as follows:

Part 2423--Unfair Labor Practice Proceedings

Section 2423.1

No change is made to the text; however, the section is separated

from all subparts to reflect its applicability to the entire part.

Subpart A--Filing, Investigating, Resolving, and Acting on Charges

Sections 2423.2-2423.8, 2423.10

No changes are made at this time.

[[Page 28379]]

Section 2423.9

Subsection (a)(3) is amended to incorporate changes to the

settlement regulations. Subsection (a)(5) of the current regulations,

which permits the Regional Director to transfer stipulations of fact to

the Authority pursuant to Sec. 2429.1, is omitted to reflect the

proposed deletion and reservation of Sec. 2429.1 from the revised

regulations. Subsection (a)(6) is redesignated as subsection (a)(5).

Section 2423.11

This section is revised in accord with the new sequential

arrangement of the ULP regulations. The general settlement policy in

current subsection (a) is deleted. Revised Sec. 2423.11 consists of the

precomplaint informal settlement language contained in current

subsections (b) (1) and (2). Post complaint, prehearing settlement

provisions, currently in subsections (c)-(d), are revised and removed

to Subpart B, at proposed Sec. 2423.25. Similarly, the provisions

currently contained in subsection (e), regarding settlements after the

opening of the hearing, are revised and moved to Subpart C, proposed

Sec. 2423.31.

Sections 2423.12-2423.19

These sections are reserved.

Subpart B--Post Complaint, Prehearing Procedures

Section 2423.20

Matters related to the complaint and answer, which appear in

Secs. 2423.12 and 2423.13 of the current regulations, are consolidated

here. A new provision in subsection (a)(5), requiring that the

complaint set out the relief sought, is intended to clarify both the

purpose of the complaint and the remedy to be obtained. Subsection

(a)(6) regarding scheduling the date, time, and place of the hearing

reflects the current practice, wherein the Regional Director sets forth

in the complaint the date, time, and place of the hearing established

by the Administrative Law Judge. Subsection (b) retains the 20-day

answer period established in Sec. 2423.13 of the current regulations.

Subsections (c) and (d) transfer to the Administrative Law Judge

certain adjudicatory responsibilities related to the complaint and

answer--including receiving the pleadings, ruling on motions and

amendments, and scheduling conference and hearing dates. Under the

current regulations, many of these items are the responsibility of the

Regional Director. Subsection (d) clarifies the authority of the Chief

Administrative Law Judge to designate judges in an efficient and

expeditious manner.

Section 2423.21

This section incorporates and amends the current motions procedure,

set out in Sec. 2423.22 of the current regulations. Specifically,

subsection (a) sets forth the general requirements of motions

procedure. Subsection (b) shifts the responsibility for ruling on

prehearing motions from the Regional Director to the Administrative Law

Judge. This accords with the changes in responsibility made in the

previous section. In addition, the time deadline for filing prehearing

motions is changed from 10 days to 15 days before the hearing. This is

intended to sharpen the factual and legal issues earlier in the

proceedings and, as a result, clarify the matters being adjudicated.

Requiring earlier party involvement also is expected to facilitate the

resolution of disputes. Subsections (c) and (d) explain the filing

process for post-transmission and interlocutory motions.

Section 2423.22

This section amends the current Sec. 2423.15 by establishing a

standard of review for motions to intervene and clarifying the extent

to which intervenors may participate in the proceedings. These changes

are expected to improve the Administrative Law Judge's decision-making

regarding intervention, improve the Authority's ability to review

rulings on intervention, and, in time, establish a uniform body of law

in this area. The changes generally accord with Merit Systems

Protection Board practice (5 CFR 1201.34).

Section 2423.23

This new section is intended to facilitate the trial process by

both broadening prehearing disclosure obligations and causing this

exchange of information to occur at least 21 days in advance of the

hearing. The 21-day period is necessary in order to permit the parties

time to properly evaluate and meet deadlines involving other pre-

hearing matters, such as motions, subpoenas, and the pre-hearing

conference. For example, the exchange of witness lists and theories of

the case 21 days prior to the hearing will assist parties in making

informed determinations concerning subpoena requests, which requests

must be made 15 days prior to the hearing, pursuant to Sec. 2429.7. By

contrast, under the current regulations (Sec. 2423.14(a)), witness

lists and documents are exchanged immediately before or at the start of

the hearing, and case theories are often not revealed until the hearing

begins. Involving the parties in the disclosure process well in advance

of the hearing should clarify the issues to be litigated and enable

knowledgeable settlement discussions.

Section 2423.24

This new section sets forth an expanded role for the Administrative

Law Judge in the prehearing process, specifically providing for the

Judge's regulation of the course and scheduling of prehearing matters.

Under subsection (c), the Administrative Law Judge has the discretion

to issue a prehearing order. Subsection (d) renders mandatory a

prehearing conference to be scheduled by the Administrative Law Judge,

unless the Administrative Law Judge determines that the conference is

not necessary and no party has moved for a prehearing conference. At

such conferences, which may occur telephonically or in person, the

parties must be prepared to discuss, narrow, and resolve the issues set

forth in the complaint and answer. The matters that may be discussed at

the prehearing conference are specifically set forth in the regulation.

As with Sec. 2423.23, this subsection emphasizes the discussion and

resolution of issues at an earlier stage in the proceedings. Subsection

(e), which grants the Administrative Law Judge authority to impose

sanctions as appropriate, such as the exclusion of evidence or

submissions regarding sanctions, represents a substantial change from

the current regulations. Such authority accords with the regulations of

both the Merit Systems Protection Board (MSPB) (5 CFR 1201.43) and

Equal Employment Opportunity Commission (EEOC) (29 CFR 1614.109(c)) as

well as other administrative agencies. In addition to the new

provisions set forth above, this section also incorporates the current

Sec. 2423.12(c), which addresses changing the date, time, or place of

hearing, as well as some of the powers of the Administrative Law Judge

set forth in the current Sec. 2423.19.

Section 2423.25

The provisions regarding post complaint, prehearing settlements of

an informal or formal nature, that appear in the current Sec. 2423.11,

are moved to this section and appear in subsections (a), (b), and (c).

A significant change to the overall settlement process is the provision

for the settlement judge program in subsection (d). This program

provides the parties with an Administrative Law Judge or other

appropriate official to conduct negotiations for informal settlements.

[[Page 28380]]

The settlement official shall not be the hearing judge unless otherwise

agreed to by the parties. Further, all settlement proceedings under

this program are confidential. This revision implements a successful

trial program that has been tested by the Authority for the past two

years and closely parallels the National Labor Relations Board's

settlement judge program regulations (29 CFR 102.35).

Section 2423.26

This is a new section that supersedes the current stipulation

provision in Sec. 2429.1. As under current stipulation practice, the

parties must agree that no material issue of fact exists. Subsection

(a) of the revised regulation provides that the parties may jointly

move to have a case considered on stipulation. Subsection (b) of the

revised regulation clarifies that stipulations of fact may be submitted

to the Administrative Law Judge rather than to the Authority. If the

stipulation is deemed adequate, the Judge may adjudicate the case on

the basis of the stipulation. This was not expressly authorized in the

current regulations. Subsection (c) alters the current procedure, by

providing that the Authority has discretion to grant such motions when

the Authority concludes that a decision by the Administrative Law Judge

would not assist in resolution of the case.

Section 2423.27

This section creates a specific regulation for the filing of a

motion for summary judgment. The current regulations do not provide for

the filing of such motions, although the Authority has held that

motions for summary judgment

serve the same purpose and have the same requirements as motions for

summary judgment filed with United States District Courts pursuant

to Rule 56 of the Federal Rules of Civil Procedure.

U.S. Equal Employment Opportunity Commission, 51 FLRA 248, 252-53

(1995) (citing Department of the Navy, U.S. Naval Ordnance Station,

Louisville, Kentucky, 33 FLRA 3, 4 (1988)), rev'd on other grounds, No.

88-1861 (D.C. Cir. Aug. 9, 1990) (unpublished). The requirements in

this section are comparable to Rule 56 of the Federal Rules of Civil

Procedure, as well as summary judgment procedures of other federal

agencies. Time limits are established to prevent the filing of summary

judgment motions from interfering with the overall post complaint

process. Also, the requirement that the motion be filed 15 days prior

to the hearing is consistent with the regulations of the EEOC (29 CFR

1614.109(e)).

Sections 2423.28-2423.29

These sections are reserved.

Subpart C--Hearing Procedures

Section 2423.30

This section regarding the general requirements for conduct of the

hearing consolidates and condenses various provisions of current

Secs. 2423.14, 2423.16, 2423.21, 2423.23, and 2423.24. Unnecessary

language is eliminated, particularly with regard to the relevant

procedures established in the Administrative Procedure Act (APA), 5

U.S.C. 554-557. Subsections (a) and (b) incorporate provisions of the

current regulations regarding an open hearing and conduct of the

hearing in accordance with the APA. Subsection (d) restates the current

objection regulation and eliminates antiquated and unclear language in

the current Sec. 2423.21(b), that

[a]utomatic exceptions will be allowed to all adverse rulings.

Under subsection (d), as under the current regulations (Sec. 2423.23)

objections not made before an Administrative Law Judge shall be deemed

waived. Subsections (c), (e), and (f) make no substantive changes from

the current regulations.

Section 2423.31

The current Secs. 2423.17 and 2423.19 are consolidated here. As

with Sec. 2423.30, this section eliminates superfluous language from

the current regulations without substantively changing the powers and

duties of the Administrative Law Judge at hearing. Rather than

delineating specific powers and duties, the revised regulation provides

general guidance regarding the Administrative Law Judge's authority at

the hearing. As in Sec. 2423.30, the powers of the Administrative Law

Judge set forth in the APA at 5 U.S.C. 556, 557, are controlling.

Subsection (c) is a new provision specifying that the Administrative

Law Judge may, under certain circumstances, issue bench decisions.

Settlement procedures to be utilized after the start of the hearing,

currently found in Sec. 2423.11, are set forth in subsection (d). This

settlement subsection retains the current practice with minor editorial

changes.

Section 2423.32

This section retains the requirement regarding the General

Counsel's burden of proof obligation, currently set forth in

Sec. 2423.18. A new provision specifies that the Respondent has the

burden of establishing any specific defenses to charges in the

complaint. This is in accord with established Authority precedent. See,

e.g., Internal Revenue Service (IRS), Washington, D.C. and IRS, Kansas

City Service Center, Kansas City, Missouri, 50 FLRA 661, 670 (1995)

(Respondent is required to identify specific anti-disclosure interests

to support defense that denial of information request is appropriate);

U.S. Department of Transportation, Federal Aviation Administration, New

York Tracon, Westbury, New York, 50 FLRA 338, 345 (1995) (Respondent

has burden of proving elements of Privacy Act defense); Letterkenny

Army Depot, 35 FLRA 113, 118 (1990) (Respondent has burden of rebutting

prima facie case of discrimination by a preponderance of the evidence).

Section 2423.33

This section parallels the current Sec. 2423.25.

Section 2423.34

This section, which addresses matters related to the Administrative

Law Judge's decision, incorporates the requirements set out in the

current Sec. 2423.26.

Sections 2423.35-2423.39

These sections are reserved.

Subpart D--Post-transmission and Exceptions to Authority Procedures

Section 2423.40

All matters related to exceptions, cross-exceptions, and

oppositions, which currently appear in Secs. 2423.26, 2423.27, and

2423.28, are consolidated here. In addition, this section requires that

each of these filings include a supporting brief meeting certain format

requirements. These changes are intended to assist the Authority in

evaluating arguments, accelerate the issuance of decisions, and improve

the quality and responsiveness of the Authority's decisions. This

section also increases the time that respondents have for filing

oppositions.

Section 2423.41

Consolidated into one section are matters related to action by the

Authority and compliance with decisions and orders of the Authority.

These matters appear in current Secs. 2423.29 and 2423.30. As with the

reorganizations made elsewhere in the proposed rules, this

consolidation is intended to facilitate the parties' understanding of

and compliance with the regulations. This section does not make

substantive changes to current regulations and practice.

[[Page 28381]]

Section 2423.42

This section simplifies current Sec. 2423.31, which sets forth the

procedures to be followed when compliance with a backpay order is at

issue. Current practice is continued with one exception--backpay

specifications by the Regional Director are no longer a required part

of the process. Instead, if the backpay amount is in question, the

Regional Director may issue a notice of hearing setting forth the

issues to be resolved without specification. The Respondent is

responsible for filing an answer to the notice of hearing. Thereafter,

the ULP hearing procedures are to be followed, with the Administrative

Law Judge ultimately determining the amount of backpay.

Sections 2423.43-2423.49

These sections are reserved.

Part 2429--Miscellaneous and General Requirements

Section 2429.1

This section is removed and reserved. The proposed Sec. 2423.26

covers this procedure.

Section 2429.7

The spelling of the term ``subpoena'' is changed throughout this

section to reflect the more commonly used and dictionary spelling of

the word. Other than this spelling change, subsections (a) and (b)

remain the same. Subsection (c) amends the current process wherein

requests for subpoenas in ULP proceedings are filed with the Regional

Director and provides instead that such subpoena requests shall be

filed with the Office of Administrative Law Judges. This revision is in

keeping with the goal of eliminating any perception of unfairness or

conflict of interest in ULP proceedings. Subsection (e) provides that

petitions to revoke a subpoena in the ULP process shall be filed with

the Administrative Law Judge. A change applying to all proceedings

before the Authority is that requests for subpoenas shall be granted if

the issuing authority finds that the testimony or documents are

material and relevant to the matters under consideration. The intent of

the regulations is to establish minimal requirements for the obtaining

of a subpoena. In the ULP process, such subpoenas would be issued, on

sufficient showing, by the Office of Administrative Law Judges.

Subsection (d) of the revised regulation also establishes that in all

proceedings, requests for subpoenas made less than 15 days prior to the

opening of the hearing shall be granted if sufficient explanation is

provided as to why the request was not timely filed. Subsection (e)

clarifies the requirements for revocation of subpoenas and describes

the presiding official's role in explaining the procedural or other

ground for the ruling. Subsection (e) also establishes a procedure for

the revocation of a subpoena if, on further review, the subpoena does

not appear appropriate. In the ULP process, subpoena revocation

determinations would be made by an Administrative Law Judge. Subsection

(f) changes the Federal Labor Relations Authority official responsible

for court enforcement of subpoenas in all Authority proceedings from

the General Counsel to the Solicitor of the Authority.

Section 2429.11

This section retains current language regarding interlocutory

appeals and also creates a procedure for filing and a standard for

reviewing interlocutory appeals in the ULP process. This new procedure

is consistent with both MSPB regulations (5 CFR 1201.91-93) and

interlocutory appeals procedure under federal practice (28 U.S.C.

1292(b)).

Section 2429.12

This section, addressing service on parties by Authority officials

in all proceedings, simplifies and facilitates service requirements in

several respects. Corresponding changes are made to other sections

addressing service by the parties (Secs. 2429.22 and 2429.27) and

filing with the Authority (Secs. 2429.21 and 2429.24). Subsection (a)

permits service of process by first-class rather than certified mail,

although service by certified mail is still permitted. The provision

permitting service by telegraph is deleted. In another change, service

by facsimile is permitted for certain procedural and other matters in

order to facilitate and expedite service where appropriate. However,

non-procedural determinations, such as recommended decisions of the

Administrative Law Judge or final decisions of the Authority, which are

likely to be lengthier and not as time-sensitive, will be served by

mail. Subsection (c) is revised to address the changes in subsection

(a); thus, proof of service is now accomplished by certificate of the

individual serving the papers. Date of service, when service is by

mail, remains the same. For facsimile service, the date of service is

the date of facsimile transmission.

Section 2429.13

This section is amended to eliminate the current provision that

necessary transportation and per diem expenses for witnesses are paid

by the employing activity or agency. The revision reflects current

practice in ULP proceedings.

Section 2429.14

The substance of subsection (a) is unchanged, although the language

is simplified and clarified. Subsection (b) is revised in accordance

with the changes regarding payment of witness fees explained in

Sec. 2429.13 above. Thus, witness fees, transportation, and per diem

expenses are paid by the party that calls the witness to testify.

Section 2429.21

No change is proposed to subsection (a) concerning computation of

time; however, comments are solicited concerning how it could be

clarified. Subsection (b) is changed to address the date of filing when

facsimile transmission is utilized and to clarify that if the filing is

by commercial delivery, it shall be considered filed on the date it is

received by the Authority.

Section 2429.22

This section is revised to permit service by facsimile

transmission.

Section 2429.24

Subsection (e) is amended to clarify that documents may be filed by

commercial delivery. The subsection also permits limited filing by

facsimile transmission and parallels the change in Sec. 2429.12(a). A

5-page limitation is placed on such filings to discourage extensive

filings by facsimile that would potentially overload facsimile

equipment capabilities and shift voluminous document reproduction

responsibility from the parties to the Authority office involved.

Section 2429.25

This section is amended to clarify that where filing by facsimile

transmission is permitted, one legible copy shall be a sufficient

submission. The requirement that the parties file an original plus four

copies of documents not served by facsimile transmission is retained.

The extra copies facilitate review by the various Authority officials

with whom the documents are filed.

Section 2429.27

Subsection (b) is amended to permit service by facsimile.

Subsection (d) now reflects the date of service when service is

effected by facsimile.

List of Subjects in 5 CFR Parts 2423 and 2429

Administrative practice and procedure, Government employees, Labor

management relations.

[[Page 28382]]

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

Relations Authority proposes to revise 5 CFR Part 2423 and to amend 5

CFR Part 2429 as follows:

1. Part 2423 is revised to read as follows:

PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS

Sec.

2423.1 Applicability of this part.

Subpart A--Filing, Investigating, Resolving, and Acting on Charges

2423.2 Informal proceedings.

2423.3 Who may file charges.

2423.4 Contents of the charge; supporting evidence and documents.

2423.5 Selection of the unfair labor practice procedure or the

negotiability procedure.

2423.6 Filing and service of copies.

2423.7 Investigation of charges.

2423.8 Amendment of charges.

2423.9 Action by the Regional Director.

2423.10 Determination not to issue complaint; review of action by

the Regional Director.

2423.11 Settlement prior to issuance of a complaint.

2423.12-2423.19 [Reserved]

Subpart B--Post Complaint, Prehearing Procedures

2423.20 Issuance and contents of the complaint; answer to the

complaint; amendments; role of Office of the Administrative Law

Judges.

2423.21 Motions procedure.

2423.22 Intervenors.

2423.23 Prehearing disclosure.

2423.24 Powers and duties of the Administrative Law Judge during

prehearing proceedings.

2423.25 Post Complaint, Prehearing Settlements.

2423.26 Stipulations of fact submissions.

2423.27 Summary judgment motions.

2423.28-2423.29 [Reserved]

Subpart C--Hearing Procedures

2423.30 General rules.

2423.31 Powers and duties of the Administrative Law Judge at the

hearing.

2423.32 Burden of proof before the Administrative Law Judge.

2423.33 Posthearing briefs.

2423.34 Decision and record.

2423.35-2423.39 [Reserved]

Subpart D--Post-transmission and Exceptions to Authority Procedures

2423.40 Exceptions; oppositions and cross-exceptions; waiver.

2423.41 Action by the Authority; compliance with Authority

decisions and orders.

2423.42 Backpay proceedings.

2423.43-2423.49 [Reserved]

Authority: 5 U.S.C. 7134.

Sec. 2423.1 Applicability of this part.

This part is applicable to any charge of alleged unfair labor

practices filed with the Authority on or after January 11, 1979.

Subpart A--Filing, Investigating, Resolving, and Acting on Charges

Sec. 2423.2 Informal proceedings.

(a) The purposes and policies of the Federal Service Labor-

Management Relations Statute can best be achieved by the cooperative

efforts of all persons covered by the program. To this end, it shall be

the policy of the Authority and the General Counsel to encourage all

persons alleging unfair labor practices and persons against whom such

allegations are made to meet and, in good faith, attempt to resolve

such matters prior to the filing of unfair labor practice charges with

the Authority.

(b) In furtherance of the policy referred to in paragraph (a) of

this section, and noting the six (6) month period of limitation set

forth in 5 U.S.C. 7118(a)(4), it shall be the policy of the Authority

and the General Counsel to encourage the informal resolution of unfair

labor practice allegations subsequent to the filing of a charge and

prior to the issuance of a complaint by the Regional Director.

policy referred to in paragraphs (a) and (b) of this section, the

investigation of an unfair labor practice charge by the Regional

Director will normally not commence until the parties have been

afforded a reasonable amount of time, not to exceed 15 days from the

filing of the charge, during which period the parties are urged to

attempt to informally resolve the unfair labor practice allegation.

Sec. 2423.3 Who may file charges.

An activity, agency or labor organization may be charged by any

person with having engaged in or engaging in any unfair labor practice

prohibited under 5 U.S.C. 7116.

Sec. 2423.4 Contents of the charge; supporting evidence and documents.

(a) A charge alleging a violation of 5 U.S.C. 7116 shall be

submitted on forms prescribed by the Authority and shall contain the

following:

(1) The name, address and telephone number of the person(s) making

the charge;

(2) The name, address and telephone number of the activity, agency,

or labor organization against whom the charge is made;

(3) A clear and concise statement of the facts constituting the

alleged unfair labor practice, a statement of the section(s) and

subsection(s) of chapter 71 of title 5 of the United States Code

alleged to have been violated, and the date and place of occurrence of

the particular acts; and

(4) A statement of any other procedure invoked involving the

subject matter of the charge and the results, if any, including whether

the subject matter raised in the charge:

(i) Has been raised previously in a grievance procedure;

(ii) Has been referred to the Federal Service Impasses Panel, the

Federal Mediation and Conciliation Service, the Equal Employment

Opportunity Commission, the Merit Systems Protection Board or the

Special Counsel of the Merit Systems Protection Board for consideration

or action; or

(iii) Involves a negotiability issue raised by the charging party

in a petition pending before the Authority pursuant to Part 2424 of

this subchapter.

(b) Such charge shall be in writing and signed and shall contain a

declaration by the person signing the charge, under the penalties of

the Criminal Code (18 U.S.C. 1001), that its contents are true and

correct to the best of that person's knowledge and belief.

Regional Director any supporting evidence and documents.

Sec. 2423.5 Selection of the unfair labor practice procedure or the

negotiability procedure.

Where a labor organization files an unfair labor practice charge

pursuant to this part which involves a negotiability issue, and the

labor organization also files pursuant to Part 2424 of this subchapter

a petition for review of the same negotiability issue, the Authority

and the General Counsel ordinarily will not process the unfair labor

practice charge and the petition for review simultaneously. Under such

circumstances, the labor organization must select under which procedure

to proceed. Upon selection of one procedure, further action under the

other procedure will ordinarily be suspended. Such selection must be

made regardless of whether the unfair labor practice charge or the

petition for review of a negotiability issue is filed first.

Notification of this selection must be made in writing at the time that

both procedures have been invoked, and must be served on the Authority,

the appropriate Regional Director and all parties to both the unfair

labor practice case and the negotiability case. Cases which solely

involve an agency's allegation that the duty to bargain in good faith

does not extend to the matter proposed to be bargained and which do not

involve actual or contemplated

[[Page 28383]]

changes in conditions of employment may only be filed under Part 2424

of this subchapter.

Sec. 2423.6 Filing and service of copies.

(a) An original and four (4) copies of the charge together with one

copy for each additional charged party named shall be filed with the

Regional Director for the region in which the alleged unfair labor

practice has occurred or is occurring. A charge alleging that an unfair

labor practice has occurred or is occurring in two or more regions may

be filed with the Regional Director for any such region.

(b) Upon the filing of a charge, the charging party shall be

responsible for the service of a copy of the charge (without the

supporting evidence and documents) upon the person(s) against whom the

charge is made, and for filing a written statement of such service with

the Regional Director. The Regional Director will, as a matter of

course, cause a copy of such charge to be served on the person(s)

against whom the charge is made, but shall not be deemed to assume

responsibility for such service.

appropriate Regional Director in accordance with the requirements in

paragraph (a) of this section.

Sec. 2423.7 Investigation of charges.

(a) The Regional Director, on behalf of the General Counsel, shall

conduct such investigation of the charge as the Regional Director deems

necessary. Consistent with the policy set forth in Sec. 2423.2, the

investigation will normally not commence until the parties have been

afforded a reasonable amount of time, not to exceed 15 days from the

filing of the charge, to informally resolve the unfair labor practice

allegation.

(b) During the course of the investigation all parties involved

will have an opportunity to present their evidence and views to the

Regional Director.

are expected to cooperate fully with the Regional Director.

(d) The purposes and policies of the Federal Service Labor-

Management Relations Statute can best be achieved by the full

cooperation of all parties involved and the voluntary submission of all

potentially relevant information from all potential sources during the

course of the investigation. To this end, it shall be the policy of the

Authority and the General Counsel to protect the identity of

individuals and the substance of the statements and information they

submit or which is obtained during the investigation as a means of

assuring the Authority's and the General Counsel's continuing ability

to obtain all relevant information.

Sec. 2423.8 Amendment of charges.

Prior to the issuance of a complaint, the charging party may amend

the charge in accordance with the requirements set forth in

Sec. 2423.6.

Sec. 2423.9 Action by the Regional Director.

(a) The Regional Director shall take action which may consist of

the following, as appropriate:

(1) Approve a request to withdraw a charge;

(2) Refuse to issue a complaint;

(3) Approve a written settlement agreement in accordance with the

provisions of Part 2423;

(4) Issue a complaint; or

(5) Withdraw a complaint.

(b) Parties may request the General Counsel to seek appropriate

temporary relief (including a restraining order) under 5 U.S.C.

7123(d). The General Counsel will initiate and prosecute injunctive

proceedings under 5 U.S.C. 7123(d) only upon approval of the Authority.

A determination by the General Counsel not to seek approval of the

Authority for such temporary relief is final and may not be appealed to

the Authority.

deemed advisable by the Authority to seek appropriate temporary relief

(including a restraining order) under 5 U.S.C. 7123(d), the Regional

Attorney or other designated agent of the Authority to whom the matter

has been referred will make application for appropriate temporary

relief (including a restraining order) in the district court of the

United States within which the unfair labor practice is alleged to have

occurred or in which the party sought to be enjoined resides or

transacts business. Such temporary relief will not be sought unless the

record establishes probable cause that an unfair labor practice is

being committed, or if such temporary relief will interfere with the

ability of the agency to carry out its essential functions.

(d) Whenever temporary relief has been obtained pursuant to 5

U.S.C. 7123(d) and thereafter the Administrative Law Judge hearing the

complaint, upon which the determination to seek such temporary relief

was predicated, recommends dismissal of such complaint, in whole or in

part, the Regional Attorney or other designated agent of the Authority

handling the case for the Authority shall inform the district court

which granted the temporary relief of the possible change in

circumstances arising out of the decision of the Administrative Law

Judge.

Sec. 2423.10 Determination not to issue complaint; review of action by

the Regional Director.

(a) If the Regional Director determines that the charge has not

been timely filed, that the charge fails to state an unfair labor

practice, or for other appropriate reasons, the Regional Director may

request the charging party to withdraw the charge, and in the absence

of such withdrawal within a reasonable time, decline to issue a

complaint.

(b) If the Regional Director determines not to issue a complaint on

a charge which is not withdrawn, the Regional Director shall provide

the parties with a written statement of the reasons for not issuing a

complaint.

Director's decision not to issue a complaint by filing an appeal with

the General Counsel within 25 days after service of the Regional

Director's decision. The appeal shall contain a complete statement

setting forth the facts and reasons upon which it is based. A copy of

the appeal shall also be filed with the Regional Director. In addition,

the charging party should notify all other parties of the fact that an

appeal has been taken, but any failure to give such notice shall not

affect the validity of the appeal.

(d) A request for extension of time to file an appeal shall be in

writing and received by the General Counsel not later than 5 days

before the date the appeal is due. The charging party should notify the

Regional Director and all other parties that it has requested an

extension of time in which to file an appeal, but any failure to give

such notice shall not affect the validity of its request for an

extension of time to file an appeal.

(e) The General Counsel may sustain the Regional Director's refusal

to issue or re-issue a complaint, stating the grounds of affirmance, or

may direct the Regional Director to take further action. The General

Counsel's decision shall be served on all the parties. The decision of

the General Counsel shall be final.

Sec. 2423.11 Settlement prior to issuance of a complaint.

(a) Prior to the issuance of any complaint or the taking of other

formal action, the Regional Director will afford the Charging Party and

the Respondent

[[Page 28384]]

a reasonable period of time in which to enter into an informal

settlement agreement to be approved by the Regional Director. Upon

approval by the Regional Director and compliance with the terms of the

informal settlement agreement, no further action shall be taken in the

case. If the Respondent fails to perform its obligations under the

informal settlement agreement, the Regional Director may determine to

institute further proceedings.

(b) In the event that the Charging Party fails or refuses to become

a party to an informal settlement agreement offered by the Respondent,

if the Regional Director concludes that the offered settlement will

effectuate the policies of the Federal Service Labor-Management

Relations Statute, the Regional Director shall enter into the agreement

with the Respondent and shall decline to issue a complaint. The

Charging Party may obtain a review of the Regional Director's action by

filing an appeal with the General Counsel in accordance with

Sec. 2423.10(c). The General Counsel shall take action on such appeal

as set forth in Sec. 2423.10(e).

Secs. 2423.12-2423.19 [Reserved]

Subpart B--Post Complaint, Prehearing Procedures

Sec. 2423.20 Issuance and contents of the complaint; answer to the

complaint; amendments; role of Office of Administrative Law Judges.

(a) Complaint. Whenever formal proceedings are deemed necessary,

the Regional Director shall file and serve, in accordance with

Sec. 2429.12 of this Subchapter, a complaint with the Office of

Administrative Law Judges. The decision to issue a complaint shall not

be subject to review. Any complaint may be withdrawn by the Regional

Director prior to the hearing. The complaint shall set forth:

(1) Notice of the charge;

(2) The basis for jurisdiction;

(3) The facts alleged to constitute an unfair labor practice;

(4) The particular sections of 5 U.S.C., chapter 71 and the rules

and regulations involved;

(5) The relief sought;

(6) Notice of the date, time, and place that a hearing will take

place before an Administrative Law Judge; and

(7) A brief statement explaining the nature of the hearing.

(b) Answer. Within 20 days after the date of service of the

complaint, the Respondent shall file and serve, in accordance with Part

2429 of this Subchapter, an answer with the Office of Administrative

Law Judges. The answer shall admit, deny, or explain each allegation of

the complaint. If the Respondent has no knowledge of an allegation or

insufficient information as to its truthfulness, the answer shall so

state. Absent a showing of good cause to the contrary, failure to file

an answer or respond to any allegation shall constitute an admission.

Motions to extend the filing deadline shall be filed in accordance with

Sec. 2423.21.

any time before the answer is filed. The Respondent then has 20 days

from the date of service of the amended complaint to file an answer

with the Office of Administrative Law Judges. The answer may be amended

by the Respondent within 20 days after the answer is filed. Thereafter,

any requests to amend the complaint or answer must be made by motion to

the Office of Administrative Law Judges.

(d) Office of Administrative Law Judges. Pleadings, motions,

conferences, hearings, and other matters throughout as specified in

Subparts B, C, and D shall be administered by the Office of

Administrative Law Judges. The Chief Administrative Law Judge, or any

Administrative Law Judge designated by the Chief Administrative Law

Judge, shall administer any matters properly submitted to the Office of

Administrative Law Judges. Throughout subparts B, C, and D of this

part, ``Administrative Law Judge'' refers to the Chief Administrative

Law Judge or his or her designee.

Sec. 2423.21 Motions procedure.

(a) General requirements. All motions, except those made during a

prehearing conference or hearing, shall be in writing. Motions for an

extension of time, postponement of a hearing, or any other procedural

ruling shall include a statement of the position of the other parties

on the motion. All written motions and responses shall satisfy the

filing and service requirements of part 2429 of this subchapter.

(b) Motions made to the Administrative Law Judge. Prehearing

motions and motions made at the hearing shall be filed with the

Administrative Law Judge. Unless otherwise specified in Subparts B or C

of this part, or otherwise directed or approved by the Administrative

Law Judge, prehearing motions shall be filed at least 15 days prior to

the hearing, and responses to both prehearing motions and motions made

at the hearing shall be filed within 5 days after the date of service

of the motion. Posthearing motions shall be filed within 15 days after

the date the hearing closes, and responses shall be filed within 5 days

after the date of service of the motion. Motions to correct the

transcript shall be filed with the Administrative Law Judge.

to the Authority, motions shall be filed with the Authority.

(d) Interlocutory appeals. Motions for an interlocutory appeal of

any ruling and responses shall be filed in accordance with this section

and Sec. 2429.11 of this subchapter.

Sec. 2423.22 Intervenors.

Motions for permission to intervene and responses shall be filed in

accordance with Sec. 2423.21. Such motions shall be granted upon a

showing that the outcome of the proceeding is likely to directly affect

the movant's rights or duties. Intervenors may participate only: on the

issues determined by the Administrative Law Judge to affect them; and

to the extent permitted by the Judge. Denial of such motions may be

appealed pursuant to Sec. 2423.21(d).

Sec. 2423.23 Prehearing disclosure.

Unless otherwise directed or approved by the Judge, the parties

shall exchange the following items at least 21 days prior to the

hearing:

(a) Proposed witness lists, including a brief synopsis of the

expected testimony of each witness;

(b) Copies of documents, with an index, to be offered into

evidence; and

all defenses to the charges, and citations to any precedent relied

upon.

Sec. 2423.24 Powers and duties of the Administrative Law Judge during

prehearing proceedings.

(a) Prehearing procedures. The Administrative Law Judge shall

regulate the course and scheduling of prehearing matters, including

prehearing orders, conferences, disclosure, motions, and subpoena

requests.

(b) Changing date, time, or place of hearing. After issuance of the

complaint or any prehearing order, the Administrative Law Judge may,

upon his or her own motion or proper cause shown by any party through

the motions procedure in Sec. 2423.21, change the date, time, or place

of the hearing.

prehearing order confirming or changing:

(i) The date, time, or place of the hearing;

(ii) The schedule for prehearing disclosure of witness lists and

[[Page 28385]]

documents intended to be offered into evidence at the hearing;

(iii) The date for submission of procedural and substantive

motions;

(iv) The date, time, and place of the prehearing conference; and

(v) Any other matter pertaining to prehearing or hearing

procedures.

(2) The prehearing order shall be served in accordance with

Sec. 2429.12 of this Subchapter.

(d) Prehearing conferences. The Administrative Law Judge shall

conduct one or more prehearing conferences, either by telephone or in

person, at least 7 days prior to the hearing date, unless the

Administrative Law Judge determines that a prehearing conference would

serve no purpose and no party has moved for a prehearing conference in

accordance with Sec. 2423.21. If a prehearing conference is held, all

parties must participate and be prepared to discuss, narrow, and

resolve the issues set forth in the complaint and answer. The

Administrative Law Judge may either prepare and file for the record a

written summary of actions taken at the conference or direct a party to

do so. Summaries of the conference shall be served on all parties in

accordance with Sec. 2429.12 of this Subchapter.The following matters

may also be considered at the prehearing conference:

(1) Settlement of the case, either by the Judge conducting the

prehearing conference or pursuant to Sec. 2423.25;

(2) Admissions of fact, disclosure of contents and authenticity of

documents, and stipulations of fact;

(3) Objections to the introduction of evidence at the hearing,

including oral or written testimony, documents, papers, exhibits, or

other submissions proposed by a party;

(4) Subpoena requests;

(5) Any matters subject to official notice;

(6) Outstanding motions; or

(7) Any other matter that may expedite the hearing or aid in the

disposition of the case.

(e) Sanctions. The Administrative Law Judge may impose sanctions

upon the parties as necessary and appropriate under the circumstances.

Such authority includes, but is not limited to, the power to:

(1) Prohibit a party who fails to comply with any requirement of

Subpart B or C of this part from, as appropriate, introducing evidence,

calling witnesses, or raising objections to the introduction of

evidence or testimony of witnesses at the hearing.

(2) Refuse to consider any submission that is not filed in

compliance with Subparts B or C of this part.

Sec. 2423.25 Post Complaint, Prehearing Settlements.

(a) Informal and formal settlements. Post complaint settlements may

be either informal or formal.

(1) Informal settlement agreements provide for withdrawal of the

complaint by the Regional Director and are not subject to approval by

or an order of the Authority. If the Respondent fails to perform its

obligations under the informal settlement agreement, the Regional

Director may re-institute formal proceedings consistent with this

Subpart.

(2) Formal settlement agreements are subject to approval by the

Authority, and include the parties' agreement to waive their right to a

hearing and acknowledgment that the Authority may issue an order

requiring the Respondent to take action appropriate to the terms of the

settlement. The formal settlement agreement shall also contain the

Respondent's consent to the Authority's application for the entry of a

decree by an appropriate federal court enforcing the Authority's order.

(b) Informal settlement procedure. If the Charging Party and the

Respondent enter into an informal settlement agreement that is accepted

by the Regional Director, the Regional Director shall withdraw the

complaint and approve the informal settlement agreement. If the

Charging Party fails or refuses to become a party to an informal

settlement agreement offered by the Respondent, and the Regional

Director concludes that the offered settlement will effectuate the

policies of the Federal Service Labor-Management Relations Statute, the

Regional Director shall enter into the agreement with the Respondent

and shall withdraw the complaint. The Charging Party then may obtain a

review of the Regional Director's action by filing an appeal with the

General Counsel as provided in subpart A of this part.

Respondent enter into a formal settlement agreement that is accepted by

the Regional Director, the Regional Director shall withdraw the

complaint upon approval of the formal settlement agreement by the

Authority. If the Charging Party fails or refuses to become a party to

a formal settlement agreement offered by the Respondent, and the

Regional Director concludes that the offered settlement will effectuate

the policies of the Federal Service Labor-Management Relations Statute,

the agreement shall be between the Respondent and the Regional

Director. The formal settlement agreement together with the Charging

Party's objections, if any, shall be submitted to the Authority for

approval. The Authority may approve a formal settlement agreement upon

a sufficient showing that it will effectuate the policies of the

Federal Service Labor-Management Relations Statute.

(d) Settlement judge program. The Administrative Law Judge, on his

or her own motion, or upon the request of any party, may assign a judge

or other appropriate official, who shall be other than the hearing

judge unless otherwise mutually agreed to by the parties, to conduct

negotiations for informal settlements.

(1) The settlement official shall convene and preside over

settlement conferences by telephone or in person.

(2) The settlement official may require that the representative for

each party be present at settlement conferences and that the parties or

agents with full settlement authority be present or available by

telephone.

(3) All discussions between the parties and the settlement official

shall be confidential. The settlement official shall not discuss any

aspect of the case with the hearing judge, and no evidence regarding

statements, conduct, offers of settlement, and concessions of the

parties made in proceedings before the settlement official shall be

admissible in any proceeding before the Administrative Law Judge or

Authority, except by stipulation of the parties.

Sec. 2423.26 Stipulations of fact submissions.

(a) General. In any unfair labor practice case under this

Subchapter, upon agreement of all parties that no material issue of

fact exists, the parties may jointly submit a motion to the

Administrative Law Judge or Authority requesting consideration of the

matter based upon stipulations of fact.

(b) Stipulations to the Administrative Law Judge. Where the

stipulation adequately addresses the appropriate material facts, the

Administrative Law Judge may grant the motion and decide the case

through stipulation.

addresses the appropriate material facts and a decision by the

Administrative Law Judge would not assist in the resolution of the

case, the Authority may grant the motion and decide the case through

stipulation.

Sec. 2423.27 Summary judgment motions.

(a) Any party may move, no later than 15 days prior to the

scheduled hearing, for a summary judgment in its favor upon any of the

issues pleaded. The motion shall demonstrate that there is no genuine

issue of material fact and that the moving party is entitled to a

[[Page 28386]]

judgment as a matter of law. Such motions shall be supported by

documents, affidavits, applicable precedent, or other appropriate

materials.

(b) Responses must be filed within 10 days after the date of

service of the motion. Responses may not rest upon mere allegations or

denials but must show, by documents, affidavits, applicable precedent,

or other appropriate materials, that there is a genuine issue to be

determined at the hearing.

be held and the Administrative Law Judge shall prepare a decision in

accordance with Sec. 2423.34. If summary judgment is denied, or if

partial summary judgment is granted, the Administrative Law Judge shall

issue an opinion and order, subject to interlocutory appeal as provided

in Sec. 2429.11 of this subchapter, and the hearing shall proceed as

necessary.

Secs. 2423.28-2423.29 [Reserved]

Subpart C--Hearing Procedures

Sec. 2423.30 General rules.

(a) Open hearing. The hearing shall be open to the public unless

otherwise ordered by the Administrative Law Judge.

(b) Administrative Procedure Act. The hearing shall, to the extent

practicable, be conducted in accordance with the Administrative

Procedure Act, 5 U.S.C. 554-557.

any hearing in person, by counsel, or by other representative; to

examine and cross-examine witnesses; to introduce into the record

documentary or other relevant evidence; and to submit rebuttal

evidence, except that the participation of any party shall be limited

to the extent prescribed by the Administrative Law Judge.

(d) Objections. Objections are oral or written complaints

concerning the conduct of a hearing. Any objection not raised to the

Administrative Law Judge shall be deemed waived.

(e) Oral argument. Any party shall be entitled, upon request, to a

reasonable period prior to the close of the hearing for oral argument,

which shall be included in the official transcript of the hearing.

(f) Official transcript. An official reporter shall make the only

official transcript of such proceedings. Copies of the transcript may

be examined in the appropriate Regional Office during normal working

hours. Parties desiring a copy of the transcript shall make

arrangements for a copy with the official hearing reporter.

Sec. 2423.31 Powers and duties of the Administrative Law Judge at the

hearing.

(a) Conduct of hearing. The Administrative Law Judge shall conduct

the hearing in a fair, impartial, and judicial manner, taking action as

needed to avoid unnecessary delay and maintain order during the

proceedings. The Administrative Law Judge may take any action necessary

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

including ruling on motions and taking official notice of material

facts when appropriate. No provision of these regulations shall be

construed to limit the powers of the Administrative Law Judge provided

by the Administrative Procedure Act, 5 U.S.C. 556, 557.

(b) Evidence. The Administrative Law Judge shall receive evidence

and inquire fully into the relevant and material facts concerning the

matters that are the subject of the hearing. The Administrative Law

Judge may exclude any evidence which is immaterial, irrelevant, unduly

repetitious, or customarily privileged. Rules of evidence shall not be

strictly followed.

agreement of and motion by the parties, issue a decision orally at the

close of the hearing when the nature of the case and the public

interest warrant. If the motion is granted, the parties waive their

right to file posthearing briefs and exceptions to the Authority. If

the decision is announced orally, a copy thereof, excerpted from the

transcript or recording, shall be furnished to the parties in

accordance with Sec. 2429.12 of this subchapter. Irrespective of the

date such copy is served, the issuance date of the decision shall be

the date the certified record, as corrected, and any Order, is served.

(d) Settlements after the opening of the hearing. As set forth in

Sec. 2423.25(a), settlements may be either informal or formal.

(1) Informal settlement procedure: Judge's approval of withdrawal.

If the Charging Party and the Respondent enter into an informal

settlement agreement that is accepted by the Regional Director, the

Regional Director may request the Administrative Law Judge for

permission to withdraw the complaint and, having been granted such

permission, shall withdraw the complaint and approve the informal

settlement between the Charging Party and Respondent. If the Charging

Party fails or refuses to become a party to an informal settlement

agreement offered by the Respondent, and the Regional Director

concludes that the offered settlement will effectuate the policies of

the Federal Service Labor-Management Relations Statute, the Regional

Director shall enter into the agreement with the Respondent and shall,

if granted permission by the Administrative Law Judge, withdraw the

complaint. The Charging Party then may obtain a review of the Regional

Director's decision as provided in subpart A of this part.

(2) Formal settlement procedure: Judge's approval of settlement. If

the Charging Party and the Respondent enter into a formal settlement

agreement that is accepted by the Regional Director, the Regional

Director may request the Administrative Law Judge to approve such

formal settlement agreement, and upon such approval, to transmit the

agreement to the Authority for approval. If the Charging Party fails or

refuses to become a party to a formal settlement agreement offered by

the Respondent, and the Regional Director concludes that the offered

settlement will effectuate the policies of the Federal Service Labor-

Management Relations Statute, the agreement shall be between the

Respondent and the Regional Director. After the Charging Party is given

an opportunity to state on the record or in writing the reasons for

opposing the formal settlement, the Regional Director may request the

Administrative Law Judge to approve such formal settlement agreement,

and upon such approval, to transmit the agreement to the Authority for

approval.

Sec. 2423.32 Burden of proof before the Administrative Law Judge.

The General Counsel shall present the evidence in support of the

complaint and have the burden of proving the allegations of the

complaint by a preponderance of the evidence. The Respondent shall have

the burden of establishing any specific defenses that it raises to the

charges in the complaint.

Sec. 2423.33 Posthearing briefs.

Posthearing briefs may be filed with the Administrative Law Judge

within a time period set by the Judge, not to exceed 30 days from the

close of the hearing, unless otherwise directed by the judge, and shall

satisfy the filing and service requirements of part 2429 of this

subchapter. Reply briefs shall not be filed absent permission of the

Judge. Motions to extend the filing deadline or for permission to file

a reply brief shall be filed in accordance with Sec. 2423.21.

[[Page 28387]]

Sec. 2423.34 Decision and record.

(a) Except when bench decisions are issued pursuant to

Sec. 2423.31(c), the Administrative Law Judge shall prepare a written

decision expeditiously in every case. All written decisions shall be

served in accordance with Sec. 2429.12 of this subchapter. The decision

shall set forth:

(1) A statement of the issues;

(2) Relevant findings of fact;

(3) Conclusions of law and reasons therefor;

(4) Credibility determinations as necessary; and

(5) A recommended disposition or order.

(b) The Judge shall transmit the decision and record to the

Authority. The record shall include the charge, complaint, service

sheet, answer, motions, rulings, orders, stipulations, objections,

depositions, interrogatories, exhibits, documentary evidence, official

transcript of the hearing, briefs, and any other filings or submissions

made by the parties.

Secs. 2423.35-2423.39 [Reserved]

Subpart D--Post-transmission and Exceptions to Authority Procedures

Sec. 2423.40 Exceptions; oppositions and cross-exceptions; waiver.

(a) Exceptions. Exceptions may be filed with the Authority within

25 days after the date of service of the Judge's decision. Exceptions

and supporting briefs shall satisfy the filing and service requirements

of part 2429 of this subchapter.

(1) Exceptions shall state: the specific findings, conclusions,

determinations, rulings, or recommendations being challenged; the

grounds relied upon; and the relief sought.

(2) Exceptions shall include a supporting brief. The brief shall

set forth in this order: all relevant facts; the issues to be

addressed; and a separate argument for each issue. Statements of fact

shall include specific citations to the record, and arguments shall be

supported by specific citations to legal authority. Attachments to

briefs shall be separately paginated and indexed as necessary. Briefs

containing 20 or more pages shall include a table of contents and a

table of legal authorities cited.

(b) Oppositions and cross-exceptions. Unless otherwise directed or

approved by the Authority, oppositions to exceptions and/or cross-

exceptions may be filed with the Authority within 20 days after the

date of service of the exceptions. Oppositions shall state the specific

exceptions being opposed. Oppositions and cross-exceptions shall be

subject to the same requirements as exceptions set out in paragraph (a)

of this section.

have been waived.

Sec. 2423.41 Action by the Authority; compliance with Authority

decisions and orders.

(a) In the absence of the filing of exceptions within the time

limits established in Sec. 2423.40, the findings, conclusions, and

recommendations in the decision of the Administrative Law Judge shall,

without precedential significance, become the findings, conclusions,

decision and order of the Authority, and all objections and exceptions

to the rulings and decision of the Administrative Law Judge shall be

deemed waived for all purposes. Failure to comply with any filing

requirement established in Sec. 2423.40 may result in the information

furnished being disregarded.

(b) Whenever exceptions are filed in accordance with Sec. 2423.40,

the Authority shall issue a decision affirming or reversing, in whole

or in part, the decision of the Administrative Law Judge or disposing

of the matter as is otherwise deemed appropriate.

with 5 U.S.C. 7118(a)(7), issue an order directing the violator, as

appropriate, to cease and desist from any unfair labor practice, or to

take any other action to effectuate the purposes of the Federal Service

Labor-Management Relations Statute.

(d) Upon finding no violation, the Authority shall dismiss the

complaint.

(e) After the Authority issues an order, the Respondent shall,

within the time specified in the order, provide to the appropriate

Regional Director a report regarding what compliance actions have been

taken. Upon determining that the Respondent has not complied with the

Authority's order, the Regional Director shall refer the case to the

Authority for enforcement or take other appropriate action.

Sec. 2423.42 Backpay proceedings.

After the entry of an Authority order directing payment of backpay,

or the entry of a court decree enforcing such order, if it appears to

the Regional Director that a controversy exists between the Authority

and a Respondent regarding backpay that cannot be resolved without a

formal proceeding, the Regional Director may issue and serve on all

parties a notice of hearing before an Administrative Law Judge to

determine the backpay amount. The notice of hearing shall set forth the

specific backpay issues to be resolved. The Respondent shall, within 20

days after the service of a notice of hearing, file an answer in

accordance with Sec. 2423.20. After the issuance of a notice of

hearing, the procedures provided in subparts B, C, and D of this part

shall be followed as applicable.

Secs. 2423.43-2423.49 [Reserved]

PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS

2. The authority citation for Part 2429 continues to read as

follows:

Authority: 5 U.S.C. 7134.

3. Section 2429.1 is removed and reserved, and reads as follows:

Sec. 2429.1 [Removed and reserved]

4. Section 2429.7 is amended by revising the heading, removing the

word ``subpena'' and substituting ``subpoena'' throughout the section

and by revising paragraphs (c) through (f) to read as follows:

Sec. 2429.7 Subpoenas.

* * * * *

7103(a)(1), shall be in writing and filed with the Regional Director,

in proceedings arising under part 2422 of this Subchapter, with the

Office of Administrative Law Judges in proceedings arising under

subparts B and C of part 2423 of this subchapter, or with the

Authority, in proceedings arising under parts 2424 and 2425 of this

subchapter, not less than 15 days prior to the opening of a hearing, or

with the appropriate presiding official(s) during the hearing.

(d) All requests shall name and identify the witnesses or documents

sought and state the reasons therefor. The Authority, General Counsel,

Office of Administrative Law Judges, Regional Director, Hearing

Officer, or any other employee of the Authority designated by the

Authority, as appropriate, shall grant timely requests upon the

determination that the testimony or documents appear to be material and

relevant to the matters under investigation and the request describes

with sufficient particularity the documents sought. Requests for

subpoenas made less than 15 days prior to the opening of the hearing

shall be granted on sufficient explanation of why the request was not

timely filed. Service of an approved subpoena is the responsibility of

the party on whose behalf the subpoena was issued. The

[[Page 28388]]

subpoena shall show on its face the name and address of the party on

whose behalf the subpoena was issued.

(e)(1) Any person served with a subpoena who does not intend to

comply, shall, within 5 days after the date of service of the subpoena

upon such person, petition in writing to revoke the subpoena. A copy of

any petition to revoke a subpoena shall be served on the party on whose

behalf the subpoena was issued. Such petition to revoke, if made prior

to the hearing, and a written statement of service, shall be filed with

the Regional Director in proceedings arising under part 2422 of this

subchapter, with the Administrative Law Judge in proceedings arising

under part 2423 of this subchapter, and with the Authority, in

proceedings arising under parts 2424 and 2425 of this subchapter for

ruling. A petition to revoke a subpoena filed during the hearing, and a

written statement of service, shall be filed with the appropriate

presiding official(s).

(2) The Authority, General Counsel, Administrative Law Judge,

Regional Director, Hearing Officer, or any other employee of the

Authority designated by the Authority, as appropriate, shall revoke the

subpoena if, on further review, the person or evidence, the production

of which is required, is not material and relevant to the matters under

investigation or in question in the proceedings, or the subpoena does

not describe with sufficient particularity the evidence the production

of which is required, or if for any other reason sufficient in law the

subpoena is invalid. The Authority, General Counsel, Administrative Law

Judge, Regional Director, Hearing Officer, or any other employee of the

Authority designated by the Authority, as appropriate, shall state the

procedural or other ground for the ruling on the petition to revoke.

The petition to revoke, any answer thereto, and any ruling thereon

shall not become part of the official record except upon the request of

the party aggrieved by the ruling.

(f) Upon the failure of any person to comply with a subpoena issued

and upon the request of the party on whose behalf the subpoena was

issued, the Solicitor of the Authority shall institute proceedings on

behalf of such party in the appropriate district court for the

enforcement thereof, unless to do so would be inconsistent with law and

the Federal Service Labor-Management Relations Statute.

5. Section 2429.11 is revised to read as follows:

Sec. 2429.11 Interlocutory Appeals.

(a) Except as set forth in paragraphs (b), (c), and (d), of this

section, the Authority and the General Counsel ordinarily will not

consider interlocutory appeals.

(b) In an unfair labor practice proceeding under Part 2423 of this

Subchapter, motions for an interlocutory appeal shall be filed in

writing with the Administrative Law Judge within 5 days after the date

of the contested ruling. The motion shall state why interlocutory

review is appropriate, and why the Authority should modify or reverse

the contested ruling.

ruling to the Authority if:

(1) The ruling involves an important question of law or policy

about which there is substantial ground for difference of opinion; and

(2) Immediate review will materially advance completion of the

proceeding, or the denial of immediate review will cause undue harm to

a party or the public.

(d) If the motion is granted, the Judge or Authority may stay the

hearing during the pendency of the appeal. If the motion is denied,

exceptions to the contested ruling may be filed in accordance with

Sec. 2423.40 of this Subchapter after the Judge issues a decision and

recommended order in the case.

6. Section 2429.12 is amended by revising paragraphs (a) and (c) to

read as follows:

Sec. 2429.12 Service of process and papers by the Authority.

(a) Methods of service. Notices of hearings, decisions and orders

of Regional Directors, decisions and recommended orders of

Administrative Law Judges, decisions of the Authority, complaints,

written rulings on motions, and all other papers required by this

Subchapter to be issued by the Authority, the General Counsel, Regional

Directors, Hearing Officers, and Administrative Law Judges, shall be

served personally, by first-class mail, or by certified mail. Provided,

however: Where facsimile equipment is available, rulings on motions;

information pertaining to prehearing disclosure, conferences, orders,

or hearing dates, times, and locations; information pertaining to

Sec. 2429.7; and other similar matters may be served by facsimile

transmission.

* * * * *

certificate of the individual serving the papers describing the manner

of such service. When service is by mail, the date of service shall be

the day when the matter served is deposited in the United States mail.

When service is by facsimile, the date of service shall be the date the

facsimile transmission is transmitted and, when necessary, verified by

a dated facsimile record of transmission.

7. Section 2429.13 is revised to read as follows:

Sec. 2429.13 Official time for witnesses.

If the participation of any employee in any phase of any proceeding

before the Authority, including the investigation of unfair labor

practice charges and representation petitions and the participation in

hearings and representation elections, is deemed necessary by the

Authority, the General Counsel, any Administrative Law Judge, Regional

Director, Hearing Officer, or other agent of the Authority designated

by the Authority, the employee shall be granted official time for such

participation, including necessary travel time, as occurs during the

employee's regular work hours and when the employee would otherwise be

in a work or paid leave status.

8. Section 2429.14 is revised to read as follows:

Sec. 2429.14 Witness fees.

(a) Witnesses, whether appearing voluntarily or pursuant to a

subpoena, shall be paid the fee and mileage allowances which are paid

subpoenaed witnesses in the courts of the United States. However, any

witness who is employed by the Federal Government shall not be entitled

to receive witness fees.

(b) Witness fees, as appropriate, as well as transportation and per

diem expenses for a witness shall be paid by the party that calls the

witness to testify.

9. Section 2429.21 is amended by revising paragraph (b) to read as

follows:

Sec. 2429.21 Computation of time for filing papers.

* * * * *

(b) Except when filing an unfair labor practice charge pursuant to

part 2423 of this subchapter, a representation petition pursuant to

part 2422 of this subchapter, and a request for an extension of time

pursuant to Sec. 2429.23(a) of this part, when this Subchapter requires

the filing of any paper with the Authority, the General Counsel, a

Regional Director, or an Administrative Law Judge, the date of filing

shall be determined by the date of mailing indicated by the postmark

date or the date a facsimile is transmitted. If no postmark date is

evident on the mailing, it shall be presumed to have

[[Page 28389]]

been mailed 5 days prior to receipt. If the date of facsimile

transmission is unclear, the date of transmission shall be the date the

facsimile transmission is received. If the filing is by personal or

commercial delivery, it shall be considered filed on the date it is

received by the Authority or the officer or agent designated to receive

such materials.

* * * * *

10. Section 2429.22 is revised to read as follows:

Sec. 2429.22 Additional time after service by mail or facsimile.

Except as to the filing of an application for review of a Regional

Director's Decision and Order under Sec. 2422.31 of this subchapter,

whenever a party has the right or is required to do some act pursuant

to this Subchapter within a prescribed period after service of a notice

or other paper upon such party, and the notice or paper is served on

such party by mail or by facsimile transmission, 5 days shall be added

to the prescribed period: Provided, however, that 5 days shall not be

added in any instance where an extension of time has been granted.

11. Section 2429.24 is amended by revising paragraph (e) to read as

follows:

Sec. 2429.24 Place and method of filing; acknowledgment.

* * * * *

(e) All documents filed pursuant to this section shall be filed in

person, by commercial delivery, by first-class mail, or by certified

mail. Provided, however, that where facsimile equipment is available,

motions; information pertaining to prehearing disclosure, conferences,

orders, or hearing dates, times, and locations; information pertaining

to Sec. 2429.7; and other similar matters may be filed by facsimile

transmission, provided that the document filed does not exceed 5 pages

in total length.

* * * * *

12. Section 2429.25 is revised to read as follows:

Sec. 2429.25 Number of copies and paper size.

Unless otherwise provided by the Authority or the General Counsel,

or their designated representatives, as appropriate, or under this

Subchapter, and with the exception of any prescribed forms, any

document or paper filed with the Authority, General Counsel,

Administrative Law Judge, Regional Director, or Hearing Officer, as

appropriate, under this Subchapter, together with any enclosure filed

therewith, shall be submitted on 8\1/2\ x 11 inch size paper in an

original and four (4) legible copies. Where facsimile filing is

permitted pursuant to Sec. 2924.24(e), one (1) legible copy, capable of

reproduction, shall be sufficient. A clean copy capable of being used

as an original for purposes such as further reproduction may be

substituted for the original.

13. Section 2429.27 is amended by revising paragraphs (b) and (d)

to read as follows:

Sec. 2429.27 Service; statement of service.

* * * * *

(b) Service of any document or paper under this Subchapter, by any

party, including documents and papers served by one party on another,

shall be accomplished by certified mail, first-class mail, or in

person. Where facsimile equipment is available, service by facsimile of

documents described in Sec. 2429.24(e) is permissible.

* * * * *

(d) The date of service or date served shall be the day when the

matter served is deposited in the U.S. mail, delivered in person, or,

in the case of facsimile transmissions, the date of transmission.

Dated: May 20, 1997.

Solly Thomas,

Executive Director, Federal Labor Relations Authority.

[FR Doc. 97-13661 Filed 5-22-97; 8:45 am]

BILLING CODE 6727-01-P

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.