Unfair Labor Practice Proceedings: Miscellaneous and General Requirements

Federal RegisterJul 31, 1997

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FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Parts 2423 and 2429

Unfair Labor Practice Proceedings: Miscellaneous and General

Requirements

AGENCY: Federal Labor Relations Authority.

ACTION: Final rule.

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SUMMARY: The Federal Labor Relations Authority amends portions of its

regulations regarding unfair labor practice (ULP) proceedings (Part

2423) and miscellaneous and general requirements (Part 2429). The

amendments are designed to streamline the existing regulations,

facilitate dispute resolution, clarify the matters to be adjudicated,

provide more flexibility to the participants in the ULP process,

simplify the filing and service requirements, and promote confidence in

ULP proceedings. Implementation of these changes enhances the ULP

process, by raising the level of advocacy and assisting in the

adjudication and resolution of ULP claims.

EFFECTIVE DATE: October 1, 1997.

ADDRESSES: Written comments received are available for public

inspection during normal business hours at the Office of Case Control,

Federal Labor Relations Authority, 607 14th Street, NW., Washington, DC

20424-0001.

FOR FURTHER INFORMATION CONTACT: Peter Constantine, Office of Case

Control, at the address listed above or by telephone # (202) 482-6540.

SUPPLEMENTARY INFORMATION:

Background

The Federal Labor Relations Authority proposed revisions to Part

2423 of its regulations addressing unfair labor practice (``ULP'')

proceedings, as well as to related miscellaneous and general

requirements located at Part 2429 of its regulations. The proposed rule

was published in the Federal Register and public comment was solicited

on the proposed changes (62 FR 28378) (May 23, 1997). Prior to

proposing the rule, the Federal Labor Relations Authority established a

task force to evaluate the policies and procedures concerning the

processing of an unfair labor practice complaint. The task force

conducted focus groups and invited the public to submit written

recommendations on ways to improve the post complaint ULP process (60

FR 11057) (Mar. 1, 1995).

Concurrent with issuing the proposed rule, the Authority invited

comment on the proposed rule in two ways: by convening focus group

meetings, in June 1997 in Chicago, IL and in Washington, DC, and by

offering the public an opportunity to submit written comments. All

comments, whether expressed orally in a focus group or submitted in

writing, have been considered prior to publishing the final rule,

although all comments are not specifically addressed in the section-by-

section analysis, below. Revisions to the proposed rule are driven for

the most part by suggestions and comments received from the public.

One commenter stated that in order to ensure that serious

consideration was afforded to suggested revisions, the regulations

should not be finalized until a lengthy time period after the close of

the comment period. The process of revising the Authority's ULP

regulations has been anything but precipitous. On the contrary,

publication of the final rule marks the culmination of years of careful

consideration of how to better the ULP process. The Authority has

afforded full consideration to the advice offered by commenters. The

improvements these essential and needed changes bring to the ULP

process should be implemented without further delay.

Those commenters who suggested changes to subpart A of part 2423

are reminded that it will be revised during 1998. As a result, comments

concerning subpart A (Filing, Investigating, Resolving, and Acting on

Charges) will not be addressed at this time.

Sectional Analyses

Sectional analyses of the 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--Final rule is amended to reflect the October 1,

1997 effective date of subparts B, C, and D of this part.

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

Sections 2423.2-2423.11--Final rule as promulgated is the same as

proposed rule.

Sections 2423.12-2423.19--These sections are reserved.

Subpart B--Post Complaint, Prehearing Procedures

Section 2423.20--Numerous commenters responded favorably to the

transfer of various functions from the Regional Director to the Office

of the Administrative Law Judge reflected in this and subsequent

sections. Commenters acknowledged that this transfer promoted

confidence in the system by properly recognizing the distinctions

between prosecutorial and adjudicatory responsibilities.

One proposed change, having both support and opposition, was the

proposal in paragraph (a) that the complaint specifically set out the

``relief sought.'' Those in favor of this change believed that this

requirement would clarify issues and notify the charged parties of what

was being requested of them. Those opposed contended that such a

pleading requirement could hinder settlement and might be interpreted

as placing a ceiling upon the remedy that ultimately could be awarded

in the case. It was suggested that this pleading requirement would lead

to complaints listing every conceivable remedy or, alternatively,

multiple amendments of the complaint. Suggesters recommended a less

onerous pleading requirement, such as requiring the pleading of only

non-traditional remedies, in order to avoid ``locking'' the parties

into positions that would jeopardize settlement discussions.

In addressing these concerns, the final regulation eliminates the

requirement to plead the remedy sought in the complaint, but instead

requires disclosing the relief sought prior to the hearing pursuant to

Sec. 2423.23. This modification was made in order to effectuate the

underlying goal of

[[Page 40912]]

providing notice and clarification to the respondent, while, at the

same time, allowing the parties the freedom to pursue resolution of the

complaint without having established positions concerning the remedy

desired.

It was suggested that ``affirmative defenses'' be made a part of

the respondent's answer. Along these lines, one commenter suggested an

amendment that any affirmative defenses not raised in the answer would

be waived. On the other hand, one commenter indicated that even a ``no

comment'' answer from a respondent should be an acceptable reply, at

least until the General Counsel had proven his or her case. The final

regulation remains unchanged, in this regard, from the proposed rule,

requiring only that the respondent either admit, deny or explain

allegations contained in the complaint. In seeking to balance the

respective interests, the final rule treats the respondent's obligation

to set out affirmative defenses in the same way that it addresses the

General Counsel's obligation to describe the relief sought. As a

result, at the prehearing disclosure stage, governed by Sec. 2423.23,

the respondent will be required to set forth any and all defenses. The

regulation thus should serve the underlying goal of putting the parties

on notice as to what the defenses are, without requiring more than is

necessary in the answer itself. As the previous paragraph indicates,

the interests of all parties are served by having the remedies and

defenses set forth at the prehearing stage.

One commenter suggested that the Authority include a sentence in

paragraphs (a) and (b) regarding the service and filing requirements.

As stated in the proposed rule and unchanged in the final rule, all

pleadings are subject to the filing and service requirements of part

2429 of the subchapter.

One commenter noted that in unusual circumstances, a hearing might

begin less than 20 days after service of the complaint. In such cases,

under the regulation as proposed, the answer would not have been filed

and served prior to the beginning of the hearing. Paragraphs (b) and

the answer, and any amendments to the answer, must be filed and served,

in any event, prior to the beginning of the hearing.

Paragraph (d) has been changed to note that the terms

``Administrative Law Judge'' and ``Judge'' are synonymous for the

purposes of subparts B, C, and D.

Section 2423.21--Commenters favored the filing of motions with the

Judge rather than with the Regional Director, as was required under the

prior regulations. In response to commenters' concerns regarding the

prehearing time deadlines set forth in the proposed rules (for

prehearing disclosure, motions, and subpoenas), time deadlines are

changed throughout the final rule. The final rule changes the time for

filing of motions from 15 days before or after the specified event to

10 days. For prehearing motions, this 10-day prior to hearing deadline

retains the same number of days as the current rule (5 CFR 2423.22(a)).

The time for responses is unchanged. It is also noteworthy that the

Judge has the authority to vary the timeliness provisions governing the

filing of motions as necessary to meet the needs of a given case.

One commenter wanted to verify that all motions, including motions

for summary judgment, are subject to filing and service requirements of

part 2429. To ensure that this is understood, the last sentence of

paragraph (a) has been clarified.

Paragraph (b) of this section has been subdivided into four parts

in order to accommodate suggestions of commenters. As a result, the

final regulation clarifies that responses to motions made during the

hearing shall be made prior to the close of hearing, unless otherwise

directed by the Judge, and that motions to correct the transcript shall

be filed within 10 days of receiving the transcript, rather than within

15 days of hearing. Subsection (c) also now states that responses to

motions filed with the Authority shall be filed within 5 days after

service of the motion.

The reference to Sec. 2429.11 in paragraph (d) has been changed to

Sec. 2423.31(c) as a result of the relocation of the unfair labor

practice interlocutory appeals procedures to part 2423.

Section 2423.22--Final rule as promulgated is the same as proposed

rule.

Section 2423.23--Most commenters favored early disclosure of

information prior to hearing, believing that such an exchange would

facilitate an early resolution of cases and avert ``trial by ambush.''

One commenter disagreed, stating that early exchange of information

would not lead to earlier resolution via settlements; was unnecessary

because the parties already generally know what evidence and arguments

others in the case will offer; and would require extensive prehearing

preparation far in advance of the date of hearing. Having carefully

considered these opinions, the Authority continues to view prehearing

disclosure as an important device that will facilitate dispute

resolution and clarify the matters to be adjudicated. The parties are

more likely to resolve disputes earlier in the ULP process if they are

obliged to focus on their own and their opponents' evidence and theory

of the case in advance of the hearing. By settling earlier, the

Authority, the parties, and the witnesses avoid expending resources by

preparing for and traveling to trials that are averted by settlement on

the courthouse steps. On the other hand, if the dispute is not settled,

early prehearing disclosure will enable the parties to knowledgeably

and more efficiently prepare their cases without having to guess what

evidence or theories others in the litigation will offer.

As noted in the comment to Sec. 2423.21, several commenters

suggested that the time deadlines in the proposed regulations should be

modified. With regard to the number of days prior to the hearing that

information is disclosed, although some favored the proposed 21 days,

others asserted that 21 days was insufficient, and still others stated

that 21 days was too far in advance of the hearing. One commenter

suggested that disclosure should be 7 days prior to the prehearing

conference. Suggestions to lengthen the time have been rejected because

such a change would unduly increase the time prior to the hearing

during which the parties would have to devote resources to case

preparation. However, recommendations to truncate the period between

disclosure and the hearing have been adopted.

The final rule changes the prescribed disclosure period from 21 to

14 days. Changing the time to 14 days will still allow for timely

illumination of strategy concerning other prehearing activities, e.g.,

subpoenas or motions, as those time deadlines also have been adjusted

based upon the change in the time for information disclosure. The 14-

day deadline should also allay some commenters' concerns regarding

prehearing administrative burdens and the potential that information

will be unnecessarily prepared and exchanged in cases that may well be

resolved before hearing.

As noted earlier in commentary concerning Sec. 2423.21, if 14 days

is not deemed an appropriate time to exchange information in a given

case, a party may move the Judge, pursuant to Sec. 2423.24(c)(1)(ii),

to change the disclosure date or any other prehearing dates where

appropriate. The final regulation has only established 14 days as the

time period that will be controlling absent the changing of the time

line by the Judge.

[[Page 40913]]

In response to queries about the meaning of the term ``shall

exchange,'' the final regulations indicate that parties shall serve the

documents on any other party in accordance with Sec. 2429.27(b). This

should clarify both acceptable methods of exchange and the fact that

all parties--the General Counsel, the Respondent, and the Charging

Party--are required to disclose and be served. With respect to such

information, several commenters suggested that the Judge be served

along with the parties, and that copies served on the Judge be made

exhibits at hearing. The final regulation declines to provide for

service to the Judge for the reason that disclosure is intended to put

the parties on notice and not to create a record of the information

exchanged in disclosure. The Judge will thus not need to review the

information exchanged unless there is a dispute over disclosure, which

would normally be handled at the prehearing conference, pursuant to

Sec. 2423.24(d).

As prompted by suggestions, the language relating to disclosure of

documents has been modified to reflect that it only includes documents

proposed to be offered into evidence. Thus, the requirement for

document disclosure in paragraph (b) mirrors the requirement for

witness disclosure in paragraph (a) in that both now refer to

disclosing proposed lists of both witnesses and documents.

One commenter questioned the meaning of the requirement to disclose

``synopsis of testimony,'' suggesting that this phrase could be

subjected to different interpretations, e.g., the facts about which the

witness would testify, a summary of the testimony the witness would

offer, or the allegation(s) in the complaint the witness would address.

The first two examples would satisfy the ``synopsis of testimony''

requirement, but the third would be insufficient because it would not

disclose the substance of the expected testimony.

One commenter suggested that in addition to the synopsis of

testimony, a witness's prehearing statements should also be exchanged

prior to the hearing. The final regulation declines to adopt, at this

time, this suggested addition to the disclosure requirement; instead,

until this matter is fully litigated, the Authority will maintain the

rule presently in effect governing release of prehearing statements.

Under long-settled current law, and pursuant to the Jencks Rule (Jencks

v. United States, 353 U.S. 657 (1957)), a written statement previously

obtained prior to the hearing is disclosable for the purpose of cross-

examination after the witness has testified. Department of Treasury,

Internal Revenue Service, Memphis Service Center, 16 FLRA 687 (1984).

Of course, under the final rule, if parties have taken a statement from

a witness and intend to introduce the written statement itself into

evidence, such a statement will have to be disclosed in advance of the

hearing pursuant to paragraph (b).

Some commenters recommended that the regulations specify the

consequences for failing to comply with disclosure requirements. The

final rule does not adopt this suggestion, but instead reserves to the

Judge's discretion the power to impose sanctions in appropriate cases.

Offering the Judge such discretion answers the concern of one commenter

that sanctions would too often be levied against unsophisticated

parties. The expectation is that the Judge will exercise prudence,

consider all relevant factors, and impose appropriate sanctions when

parties fail to act in good faith in meeting their respective

prehearing disclosure obligations.

Finally, in response to suggestions, three changes have been made

to paragraph (c). First, and as noted earlier, the final rule adds the

relief sought to the information that must be disclosed 14 days prior

to the hearing. Second, the word ``charges'' has been replaced with the

more appropriate phrase ``allegations in the complaint.'' Third,

several commenters noted that the requirement to disclose citations

relied upon in support of a theory of the case or a defense is overly

broad and could be interpreted to prevent a party from relying on a

case precedent at a later stage in the litigation if the case was not

exchanged in disclosure. The final regulation has been modified to

delete the requirement that parties list citations to precedent.

Section 2423.24--Language has been added into paragraphs (b), (c),

and (e) to reflect that the changing of hearing date or place, the

issuing of a prehearing order, and imposition of sanctions may be

ordered either by the Judge in his or her discretion, or on the motion

of a party.

The final rule does not accept the recommendation of a commenter

that paragraph (b) of the regulation recognize the authority of the

Regional Director to order a change in the date, time, or place of the

hearing when directed by the Judge. Any orders making such changes must

be issued by the Judge.

Commenters generally, with one exception, favored prehearing

conferences; one commenter suggested requiring prehearing conferences

in every case. The Authority has concluded that at this time it is not

necessary to mandate a prehearing conference in every case. As a

result, the final rule in paragraph (d) retains the procedure that was

proposed, with the Judge scheduling and conducting a conference at

least 7 days before the hearing unless the Judge determines that a

conference is not necessary and no party has moved for a prehearing

conference. This process for the holding of prehearing conferences will

be monitored; if it proves unwieldy, it will be altered. Many

commenters objected to the Judge having the authority to assign one of

the parties to draft a summary of the prehearing conference. This

objection has been accommodated in the final regulations; thus, when a

summary of a conference is necessary, it will be prepared and filed in

the record by the Judge. In response to a commenter's suggestion,

paragraph (d)(4) has been broadened to clarify that petitions to revoke

subpoenas are a matter that may be considered at a prehearing

conference.

Several commenters suggested that the Judge's sanction authority

should be more expressly regulated. As noted in the commentary

concerning Sec. 2423.23, the final rule on sanctions does not establish

specific penalties and procedures, opting instead to leave these

matters to the discretion of the Judge. However, paragraph (e) has been

clarified to reflect that an important purpose of sanctions is to

ensure that a party's failing to comply with subpart B or C is not

condoned. Also, in paragraph (e)(1), theories of violation, specific

relief, and specific defenses have been included among the examples of

items that a party may be precluded from pursuing if that party has

failed to satisfy prehearing obligations.

Section 2423.25--One commenter suggested that implementation of an

informal settlement be stayed pending the appeal by a charging party

who objected to the settlement between the Regional Director and the

respondent. Since this is already the practice under the current

regulation, which has not been substantively altered by the proposed

rule change, it does not appear necessary that stays be regulated by

the final rule.

The settlement judge program, set out in paragraph (d), was

favored, with commenters believing it will increase chances of

settlement and reduce unnecessary litigation expense. Three suggestions

have been incorporated in the final rule. First, the word ``informal''

has been stricken from the last sentence in the introductory paragraph,

thus permitting a settlement official to conduct negotiations for any

type of settlement. Second, the final rule has

[[Page 40914]]

been modified to clarify that information derived from settlement

discussions will be inadmissible rather than confidential; thus, the

final rule does not preclude the parties from discussing settlement.

Third, the proposed paragraph (3), as modified, has been subdivided

into two separate paragraphs.

Section 2423.26--Responding to a concern that motions for

stipulations will add an additional step and time to the process, the

final rule provides that such motions will be ruled upon expeditiously.

The final rule also notes that individual briefs are required and must

be filed within 30 days of the filing of the joint motion.

In response to suggestions, the final rule clarifies when

stipulations to the Authority will be permitted. One commenter

suggested that stipulations to the Authority be permitted when a United

States Court of Appeals has already ruled on the legal issue in the

case. It might well be that a motion to stipulate would be granted in

such a case; however, it is not clear that a recommended decision of

the Judge would be of no assistance in the resolution of every case

falling into this category--especially if the Authority had not had an

opportunity to consider the court's decision. Instead, the final rule

permits stipulations when an adequate basis for application of

established precedent exists. The final rule also provides the

Authority discretion to grant the motion to stipulate in unusual

circumstances.

Lastly, and also in response to comment, paragraph (d) has been

added to the section noting that once a motion to stipulate has been

granted, the Authority will adjudicate the case based upon the

information in the stipulation and the briefs. It is anticipated that

this provision will enable the Authority to avoid remanding cases to

the parties for additions to the stipulation.

Section 2423.27--Most comments noted that codification of the

summary judgment procedures should promote judicial economy.

As noted earlier, motions for summary judgment, like all written

motions, are subject to the requirements of Sec. 2423.21. In keeping

with the time deadline changes in that section, the time for filing

motions for summary judgment has changed from 15 days to 10 days prior

to the hearing. In order to ensure that summary judgment motions do not

interfere with the overall post complaint process, responses to motions

for summary judgment must be filed within 5 days after the date of

service of the motion instead of 10 days after service.

In response to a concern that such motions must, in every case, be

filed at least 10 days prior to hearing, the final rule permits, with

the approval of the Judge, motions for summary judgment to be filed

less than 10 days in advance of the hearing. One commenter suggested

that a party moving for summary judgment shortly in advance of a

hearing be required to move for a postponement of the hearing so that

those opposing the summary judgment motion would not be overloaded with

the dual obligations of responding to the motion and preparing for

trial. Although this suggestion has not been adopted, it is noted that

any party, whether a movant for or an opponent of a summary judgment,

may move the Judge to postpone the hearing pending a ruling on the

motion for summary judgment.

The reference to Sec. 2429.11 in paragraph (c) has been changed to

Sec. 2423.31(c) as a result of the relocation of the unfair labor

practice interlocutory appeals procedures to part 2423.

Section 2423.28--Based upon one commenter's suggestion and in

furtherance of unifying the rules governing the ULP process and ease of

reference, the procedures governing subpoenas in an unfair labor

practice proceeding have been moved from Sec. 2429.7 to this section of

the final rule. This section has been modeled after the revised

Sec. 2429.7 governing subpoena procedures in other FLRA proceedings.

Also, the time for requesting subpoenas has been adjusted to

correspond with other prehearing disclosure deadlines, as discussed in

the commentary concerning Secs. 2423.21 and 2423.23. Thus, subpoena

requests must be made not less than 10 days prior to the hearing,

instead of the 15 days in the proposed regulations.

With regard to the subpoena process, many commenters suggested that

subpoenas be issued ministerially with a minimum of involvement by the

Judge in the issuance. The final rule addresses this concern in

paragraph (c) by providing that subpoena requests filed with the Office

of Administrative Law Judges will be automatically issued on an ex

parte basis. The requesting party will be responsible for completion of

the subpoena form and service of the subpoena. This change should avoid

delays in issuing subpoenas and eliminate the potential problems of a

Judge having to revisit a previous decision to issue a subpoena when a

petition to revoke is filed.

In response to concerns about service, language has been added

defining proper ``service'' for the subpoena. In the final rule, the

process for service of a subpoena is different from the general service

provisions of part 2429, in that registered or certified mail or

personal delivery is required.

Section 2423.29--This section is reserved.

Subpart C--Hearing Procedures

Section 2423.30--Paragraph (b) has been edited for clarity in the

final rule.

Section 2423.31--The final sentence in paragraph (a) has been

edited for clarity in the final rule.

One commenter suggested that the last sentence in paragraph (b)

could be interpreted as precluding a Judge from following the rules of

evidence. This is neither the meaning nor intent of the sentence. The

last sentence in paragraph (b) should be read in context of the entire

paragraph. As such, the rules of evidence are a guide, but do not

strictly govern the proceeding.

The final rule moves procedures governing interlocutory appeals

from Sec. 2429.11 to paragraph (c) of this section. This reorganization

has been accomplished for the same reasons referenced in the commentary

to the newly established Sec. 2423.28, i.e., unifying unfair labor

practice rules and ease of reference. Although provisions governing

interlocutory appeals have been located in subpart C, which governs

hearing procedures, these procedures would be equally applicable if a

party were to challenge a prehearing determination of the Judge.

Substantively, one commenter suggested that the regulation require

that the hearing be stayed while the certified interlocutory appeal is

before the Authority. The final rule does not mandate such a stay,

leaving this matter to the discretion of the Judge or the Authority.

This flexibility would, in appropriate circumstances, allow segregable

portions of a hearing to continue while an interlocutory appeal

proceeded.

Voluminous commentary was received on the issue of bench decisions.

While commenters appreciated the availability of such an option, most

objected to the requirement that parties waive their rights to file

exceptions and to obtain other forms of review. These concerns should

be alleviated by the modifications contained in the final rule which is

now denominated as paragraph (d) of this section. Under the final rule,

all of the parties may jointly move the Judge to issue an oral bench

decision at the close of the hearing. In filing such a motion, the

parties waive their rights to file a posthearing brief to the Judge. If

the Judge, relying on judicial discretion, grants the joint motion, the

Judge will

[[Page 40915]]

render an oral decision which shall satisfy the requirements of

Sec. 2423.34(a)(1)-(5). Subsequent to the hearing, the Judge's oral

decision will be transcribed. This transcription, together with any

supplementary matter the Judge deems necessary, will be the written

recommended decision which the Judge shall transmit to the Authority

and serve on the parties. Exceptions to this recommended decision will

be permitted. In response to queries about the relevance of ``the

public interest'' to this process, the final rule has deleted this

phrase.

The last paragraph in the section, formerly denominated as (d), has

been redesignated as (e) in the final rule.

Section 2423.32--Comment was received noting that the proposed

rule's requirement that the respondent have the burden of establishing

defenses would cause confusion and controversy. One commenter noted

that the respondent's burden varies depending upon the type of case and

is not subject to a generic requirement. It was also pointed out that a

respondent's burden is often a ``burden of going forward'' rather than

a ``burden of proof.'' Noting these comments, and recognizing that the

General Counsel has and retains the burden of proof in all cases, the

final rule clarifies that the respondent shall have the burden of

proving any ``affirmative'' defenses that it raises. Use of this more

specific term serves to remind the respondent of its burden concerning

certain defenses that it chooses to raise. This language is not

intended to impose any additional burden on respondents; rather, it

notifies respondents of their burden which is established in the case

law.

Section 2423.33--The final rule is modified to account for waiver

of the right to file posthearing briefs when bench decisions are

issued, pursuant to Sec. 2423.31(d).

Section 2423.34--In response to suggestions, summaries of

prehearing conferences, as well as the basis for any ruling on

sanctions, are specifically made part of the record, in order to

document these matters and to allow the parties to except to any matter

involving the prehearing conference or sanctions.

Sections 2423.35-2423.39--These sections are reserved.

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

Section 2423.40--The final rule clarifies in paragraph (a), that a

single document containing both exceptions to the Judge's decision and

a brief in support of those exceptions, is contemplated. The final rule

also expressly explains how separate arguments for each issue raised

are to be set forth in the exceptions. The page limitation triggering

the table of contents and legal authorities requirement has been raised

from 20 to 25 pages. Parties should note that pursuant to

Sec. 2429.24(e) and Sec. 2429.25, standard font sizes (12 point) and

margins (1 inch) will be required.

The section heading and paragraph (b) have been altered to clarify

the time within which to file oppositions to cross-exceptions.

Commenters approved of the increased time--20 days--to file oppositions

to exceptions as a valuable change.

Paragraph (c) has been added clarifying that reply briefs are not

allowed, absent permission of the Authority.

Sections 2423.41-2423.42--Final rule as promulgated is the same as

proposed rule.

Sections 2423.43-2423.49--These sections are reserved.

Part 2429--Miscellaneous and General Requirements

Section 2429.1--This section is removed and reserved.

Section 2429.7--As noted earlier, a separate section addressing

subpoena process in ULP cases has been established in part 2423,

Sec. 2423.28. This section establishes subpoena processes for other

Authority proceedings, pursuant to parts 2422, 2424, and 2425 and

generally follows the procedures established for the issuance and

revocation of subpoenas in ULP cases. The only significant difference

between this section and the rules established in Sec. 2423.28 involves

the official who is authorized to issue and is revoke subpoenas.

Section 2429.11--As noted earlier, the procedures governing

interlocutory appeals in unfair labor practice cases have been moved to

Sec. 2423.31(c). The final rule notes that such appeals will ordinarily

not be considered, except as set forth in part 2423.

Section 2429.12--Almost all commenters endorsed the liberalization

of service requirements allowing for first class mail and facsimile

transmissions. The final rule adopts the proposed rule's service

requirements.

In response to a suggestion, the final rule expands the list of

documents that must be served to include amended complaints and

withdrawals of complaints and amends the list of those who are required

to serve to include the Regional Director when not acting as a party

under part 2423. The reference in the proposed regulation to

Sec. 2429.7 has been changed in the final rule to subpoenas, as a

result of subpoena sections appearing in both parts 2429 and 2423.

Also, the final rule has been revised to provide for the

Authority's service by facsimile of time sensitive matters.

Section 2429.13--Final rule as promulgated is the same as proposed

rule.

Section 2429.14--Final rule as promulgated is the same as proposed

rule.

Section 2429.21--Final rule as promulgated is the same as proposed

rule.

Section 2429.22--Commenters noted that when service is by

facsimile, there is no reason to add 5 additional days to periods

within which a party must act, as is done in the case of service by

mail. The final regulation adopts this suggestion and has been modified

to delete facsimile filing from this section.

Section 2429.24--As previously noted, parties uniformly and

overwhelmingly supported the change allowing for filing by facsimile.

In response to several requests, the 5-page limitation on facsimile

filings with the Authority has been increased in the final rule to 10

pages. However, piecemeal filing is not permitted, as the 10-page limit

applies to the entire individual document. This limit, however, will be

strictly enforced and standard font sizes (12 point) and margins (1

inch) will be required.

Clarification was sought as to the term ``other similar matters''

with respect to documents appropriate for facsimile submissions. The

final rule lists a number of items that may be filed by facsimile; with

these examples offered in the regulation, further definition of this

phrase is not considered feasible or prudent at this time. As in

Sec. 2429.12, the reference in the proposed regulation to Sec. 2429.7

has been changed in the final rule to subpoenas, as a result of

subpoena sections appearing in both parts 2429 and 2423.

Section 2429.25--The final rule includes one minor change to

clarify that standard font sizes and margins will be required in all

filings with the Authority.

Section 2429.27--Three minor changes have been incorporated into

the final rule: First, in paragraph (b), the modifier of the word party

has been changed from ``another'' to ``any other,'' thus clarifying

that all parties, including the charging party, must be served; second,

in paragraph (d), commercial delivery has been included as a method of

service; and third, also in paragraph (d), the phrase ``date of

transmission'' has been changed to ``date transmitted.''

[[Page 40916]]

List of Subjects

5 CFR Part 2423

Administrative practice and procedure, Government employees, Labor-

management relations.

5 CFR Part 2429

Administrative practice and procedure, Government employees, Labor-

management relations.

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

Relations Authority amends parts 2423 and 2429 of its regulations 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 Subpoenas.

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; oppositions

to 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, and

any complaint filed on or after October 1, 1997.

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

paragraph(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

[[Page 40917]]

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 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

[[Page 40918]]

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

place before an Administrative Law Judge; and

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

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

complaint, but in any event, prior to the beginning of the hearing, 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. Prior to the beginning of

the hearing, 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 of this part shall be administered by the Office

of Administrative Law Judges, as appropriate. 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'' or

``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 in subparts B, C, or D

of this part 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:

(1) Prehearing motions shall be filed at least 10 days prior to the

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

service of the motion;

(2) Responses to motions made during the hearing shall be filed

prior to the close of hearing;

(3) Posthearing motions shall be filed within 10 days after the

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

after the date of service of the motion; and

(4) Motions to correct the transcript shall be filed with the

Administrative Law Judge within 10 days after receipt of the

transcript, and responses shall be filed within 5 days after the date

of service of the motion.

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

shall be filed within 5 days after the date of service of the motion.

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

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

and Sec. 2423.31(c).

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, in accordance with the service requirements of

Sec. 2429.27(b) of this subchapter, the following items at least 14

days prior to the hearing:

(a) Witnesses. Proposed witness lists, including a brief synopsis

of the expected testimony of each witness;

[[Page 40919]]

(b) Documents. Copies of documents, with an index, proposed to be

offered into evidence; and

including relief sought, and any and all defenses to the allegations in

the complaint.

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, in

the Judge's discretion or upon motion by any party through the motions

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

hearing.

Judge's discretion or upon motion by any party through the motions

procedure in Sec. 2423.21, issue a prehearing order confirming or

changing:

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

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

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 in the prehearing conference and be prepared

to discuss, narrow, and resolve the issues set forth in the complaint

and answer, as well as any prehearing disclosure matters or disputes.

When necessary, the Administrative Law Judge shall prepare and file for

the record a written summary of actions taken at the conference.

Summaries of the conference shall be served on all parties in

accordance with Sec. 2429.12 of this subchapter. The following 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 or petitions to revoke subpoenas;

(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, in the Judge's

discretion or upon motion by any party through the motions procedure in

Sec. 2423.21, impose sanctions upon the parties as necessary and

appropriate to ensure that a party's failure to fully comply with

subpart B or C of this part is not condoned. 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, raising objections to the introduction of evidence

or testimony of witnesses at the hearing, presenting a specific theory

of violation, seeking certain relief, or relying upon a particular

defense.

(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 reinstitute 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, in the

Judge's discretion 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 settlement.

(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.

[[Page 40920]]

(3) The settlement official shall not discuss any aspect of the

case with the hearing judge.

(4) 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. When all parties agree 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. Briefs of the parties are required and must

be submitted within 30 days of the joint motion. Upon receipt of the

briefs, such motions shall be ruled upon expeditiously.

(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.

an adequate basis for application of established precedent and a

decision by the Administrative Law Judge would not assist in the

resolution of the case, or in unusual circumstances, the Authority may

grant the motion and decide the case through stipulation.

(d) Decision based on stipulation. Where the motion is granted, the

Authority will adjudicate the case and determine whether the parties

have met their respective burdens based on the stipulation and the

briefs.

Sec. 2423.27 Summary judgment motions.

(a) Motions. Any party may move for a summary judgment in its favor

on any of the issues pleaded. Unless otherwise approved by the

Administrative Law Judge, such motion shall be made no later than 10

days prior to the hearing. The motion shall demonstrate that there is

no genuine issue of material fact and that the moving party is entitled

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

documents, affidavits, applicable precedent, or other appropriate

materials.

(b) Responses. Responses must be filed within 5 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.

hearing will 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. 2423.31(c) of this subchapter, and the

hearing shall proceed as necessary.

Sec. 2423.28 Subpoenas.

(a) When necessary. Where the parties are in agreement that the

appearance of witnesses or the production of documents is necessary,

and such witnesses agree to appear, no subpoena need be sought.

(b) Requests for subpoenas. A request for a subpoena by any person,

as defined in 5 U.S.C. 7103(a)(1), shall be in writing and filed with

the Office of Administrative Law Judges not less than 10 days prior to

the hearing, or with the Administrative Law Judge during the hearing.

Requests for subpoenas made less than 10 days prior to the hearing

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

timely filed.

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

appropriate, shall furnish the requester the subpoenas sought, provided

the request is timely made. Requests for subpoenas may be made ex

parte. Completion of the specific information in the subpoena and the

service of the subpoena are the responsibility of the party on whose

behalf the subpoena was issued.

(d) Service of subpoena. A subpoena may be served by any person who

is at least 18 years old and who is not a party to the proceeding. The

person who served the subpoena must certify that he or she did so:

(1) By delivering it to the witness in person,

(2) By registered or certified mail, or

(3) By delivering the subpoena to a responsible person (named in

the document certifying the delivery) at the residence or place of

business (as appropriate) of the person for whom the subpoena was

intended. The subpoena shall show on its face the name and address of

the party on whose behalf the subpoena was issued.

(e)(1) Petition to revoke subpoena. 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 Office of Administrative

Law Judges for ruling. A petition to revoke a subpoena filed during the

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

Administrative Law Judge.

(2) The Administrative Law Judge, or any other employee of the

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

subpoena if 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 Administrative Law Judge, 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) Failure to comply. 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.

Sec. 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 5 U.S.C. 554-557, and

other applicable provisions of the Administrative Procedure Act.

any hearing in person, by counsel, or by other

[[Page 40921]]

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 5 U.S.C. 556, 557, and other applicable provisions of the

Administrative Procedure Act.

(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 that is immaterial, irrelevant, unduly

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

strictly followed.

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.

(1) The Judge shall grant the motion and certify the contested

ruling to the Authority if:

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

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

(ii) 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.

(2) 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.

(d) Bench decisions. Upon joint motion of the parties, the

Administrative Law Judge may issue an oral decision at the close of the

hearing when, in the Judge's discretion, the nature of the case so

warrants. By so moving, the parties waive their right to file

posthearing briefs with the Administrative Law Judge, pursuant to

Sec. 2423.33. If the decision is announced orally, it shall satisfy the

requirements of Sec. 2423.34(a)(1)-(5) and a copy thereof, excerpted

from the transcript, together with any supplementary matter the judge

may deem necessary to complete the decision, shall be transmitted to

the Authority, in accordance with Sec. 2423.34(b), and furnished to the

parties in accordance with Sec. 2429.12 of this subchapter.

(e) 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 proving any affirmative defenses that it raises to the

allegations in the complaint.

Sec. 2423.33 Posthearing briefs.

Except when bench decisions are issued pursuant to Sec. 2423.31(d),

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.

Sec. 2423.34 Decision and record.

(a) Recommended decision. Except when bench decisions are issued

pursuant to Sec. 2423.31(d), 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;

[[Page 40922]]

(3) Conclusions of law and reasons therefor;

(4) Credibility determinations as necessary; and

(5) A recommended disposition or order.

(b) Transmittal to Authority. The Judge shall transmit the decision

and record to the Authority. The record shall include the charge,

complaint, service sheet, answer, motions, rulings, orders, prehearing

conference summaries, stipulations, objections, depositions,

interrogatories, exhibits, documentary evidence, basis for any

sanctions ruling, 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; oppositions

to cross-exceptions; waiver.

(a) Exceptions. Any exceptions to the Administrative Law Judge's

decision must be filed with the Authority within 25 days after the date

of service of the Judge's decision. Exceptions shall satisfy the filing

and service requirements of part 2429 of this subchapter. Exceptions

shall consist of the following:

(1) The specific findings, conclusions, determinations, rulings, or

recommendations being challenged; the grounds relied upon; and the

relief sought.

(2) Supporting arguments, which shall set forth, in order: all

relevant facts with specific citations to the record; the issues to be

addressed; and a separate argument for each issue, which shall include

a discussion of applicable law. Attachments to briefs shall be

separately paginated and indexed as necessary.

(3) Exceptions containing 25 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, cross-exceptions,

and oppositions to cross-exceptions may be filed with the Authority

within 20 days after the date of service of the exceptions or cross-

exceptions, respectively. 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.

permission of the Authority.

(d) Waiver. Any exception not specifically argued shall be deemed

to have been waived.

Sec. 2423.41 Action by the Authority; compliance with Authority

decisions and orders.

(a) Authority decision; no exceptions filed. 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) Authority decision; exceptions filed. 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.

shall, in accordance 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) Dismissal. Upon finding no violation, the Authority shall

dismiss the complaint.

(e) Report of compliance. 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.

Sec. 2429.1 [Removed and Reserved]

3. Section 2429.1 is removed and reserved

4. Section 2429.7 is amended by revising the heading and by

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, or with the

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

subchapter, not less than 10 days prior to the hearing, or with the

appropriate presiding official(s) during the hearing. Requests for

subpoenas made less than 10 days prior to the opening of the hearing

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

timely filed.

(d) The Authority, General Counsel, Regional Director, Hearing

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

Authority, as appropriate, shall furnish the requester the subpoenas

sought, provided the request is timely made. Requests for subpoenas may

be made ex parte. Completion of the specific information in the

subpoena and the service of the subpoena are the responsibility of the

party on whose behalf the subpoena was issued. A subpoena may be served

by any person who is at least 18 years old and who is not a party to

the proceeding. The person who served the subpoena must certify that he

or she did so:

(1) By delivering it to the witness in person,

(2) By registered or certified mail, or

(3) By delivering the subpoena to a responsible person (named in

the

[[Page 40923]]

document certifying the delivery) at the residence or place of business

(as appropriate) of the person for whom the subpoena was intended. The

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, 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, Regional Director, Hearing

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

Authority, as appropriate, shall revoke the subpoena if 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, 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.

Except as set forth in part 2423, the Authority and the General

Counsel ordinarily will not consider interlocutory appeals.

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,

amended complaints, withdrawals of 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, Administrative Law Judges, and Regional Directors when not

acting as a party under part 2423 of this subchapter, shall be served

personally, by first-class mail, by facsimile transmission, or by

certified mail. Where facsimile equipment is available, rulings on

motions; information pertaining to prehearing disclosure, conferences,

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

subpoenas; and other similar or time sensitive 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 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.

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, 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.

[[Page 40924]]

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 subpoenas; and other similar matters may be filed by facsimile

transmission, provided that the entire individual filing by the party

does not exceed 10 pages in total length, with normal margins and font

sizes.

* * * * *

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, using

normal margins and font sizes, in an original and four (4) legible

copies. Where facsimile filing is permitted pursuant to

Sec. 2429.24(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 any other

party, shall be accomplished by certified mail, first-class mail,

commercial delivery, 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,

received from commercial delivery, or, in the case of facsimile

transmissions, the date transmitted.

Dated: July 28, 1997.

Solly Thomas,

Executive Director, Federal Labor Relations Authority.

[FR Doc. 97-20244 Filed 7-30-97; 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.