Meaning of Terms as Used in This Subchapter; Unfair Labor Practice Proceedings; Miscellaneous and General Requirements

FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Parts 2421, 2423, and 2429

Meaning of Terms as Used in This Subchapter; Unfair Labor

Practice Proceedings; Miscellaneous and General Requirements

AGENCY: Office of the General Counsel, Federal Labor Relations

Authority.

ACTION: Notice of proposed rulemaking; notice of meeting.

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SUMMARY: The General Counsel of the Federal Labor Relations Authority

(FLRA) proposes to revise the regulations regarding the prevention,

resolution, and investigation of unfair labor practice (ULP) disputes

(part 2423, subpart A). The purpose of the proposed revisions is to

facilitate dispute resolution and to simplify, clarify, and improve the

processing of ULP charges. Implementation of the proposed changes will

enhance the purposes and policies of the Federal Service Labor-

Management Relations Statute (Statute) by preventing ULP disputes,

resolving disputes that arise, and fully investigating and taking

determinative action in disputes that are not resolved. The proposed

revisions implement the FLRA's agency-wide collaboration and

alternative dispute resolution initiative to assist labor and

management parties in developing collaborative relationships, and to

provide dispute resolution services in ULP, representation,

negotiability, impasses, and arbitration cases pending before the

Office of the General Counsel, the three Authority Members, and the

Federal Service Impasses Panel. In addition, two definitions of terms

used only in subpart A of part 2423 are proposed in part 2421, and it

is proposed that one section in part 2429 be clarified in light of the

proposed revisions to subpart A of part 2423.

DATES: Comments must be received on or before October 19, 1998. See

SUPPLEMENTARY INFORMATION section for meeting dates.

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

General Counsel, Federal Labor Relations Authority, 607 14th Street,

NW, Suite 210, Washington, DC 20424-0001. See SUPPLEMENTARY INFORMATION

section for meeting addresses.

FOR FURTHER INFORMATION CONTACT: Regulatory Information: David L.

Feder, Deputy General Counsel, at the address for the Office of the

General Counsel or by telephone # (202) 482-6680 ext. 203, facsimile #

(202) 482-6608. See SUPPLEMENTARY INFORMATION for persons to contact

for meeting registration.

SUPPLEMENTARY INFORMATION: The Office of the General Counsel (OGC) of

the FLRA proposes modifications to the existing rules and regulations

in subpart A of part 2423 of title 5 of the Code of Federal Regulations

regarding the prevention of ULPs. These proposed revisions are part of

the FLRA's initiative to facilitate dispute resolution and to simplify,

clarify, and improve the processing of ULP charges. On July 31, 1997,

the Authority Members published final regulations (62 FR 40911), which

became effective on October 1, 1997, on the processing of ULP

complaints from the issuance of a complaint through the transfer of the

case to the Authority Members after the issuance of a decision and

recommended order of an Administrative Law Judge. These proposed

revisions concern the prevention of ULP disputes and the investigation,

resolution, and disposition of ULP charges.

Subpart A of the regulations has not been reexamined in its

entirety since the regulations were enacted in 1980. Since that time,

the OGC has established internal policies to assist parties in

preventing and resolving ULP disputes and in investigating ULP charges.

Recent examples of these policies concern Settlement; Prosecutorial

Discretion; Injunctions; Scope of Investigations; Intervention; Quality

in ULP Investigations; and Facilitation, Intervention, Training, and

Education. In November 1997, the FLRA undertook a comprehensive

Customer Service Survey. The General Counsel also has held over 30 Town

Hall Meetings throughout the country, open to all parties, to discuss

the manner in which the OGC: (1) prevents ULPs by assisting parties in

avoiding ULP disputes and resolving those disputes which precipitate

the filing of a ULP charge; and (2) investigates and takes disposition

on the merits in those disputes which are not resolved. Many of the

proposed revisions are driven by the discussions during those Town Hall

meetings and the preliminary results of the Customer Service Survey.

These proposed revisions provide parties with alternative dispute

resolution (ADR) processes to avoid ULP disputes as well as to resolve

any ULP disputes that materialize prior to the filing of a ULP charge

and prior to issuance of a complaint.

To obtain additional input from our customers, meetings to discuss

these proposed revisions will be held in each of the seven Regional

Office cities and at OGC Headquarters at the following locations, dates

and times:

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Office Location of meeting Date Time

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Boston............................ Thomas P. O'Neill Jr. Sept. 17, 1998............ 9:30 a.m.

Federal Building, 10

Causeway Street, 1st

Floor Auditorium, Boston,

MA.

Washington, DC.................... 1730 M Street, NW, Suite Sept. 17, 1998............ 9:30 a.m.

300, Conference Room,

Washington, DC.

Atlanta........................... Summit Building, 401 West Sept. 17, 1998............ 9:30 a.m.

Peachtree Street, 31st

Floor, Atlanta, GA.

Chicago........................... Ralph H. Metcalfe Federal Oct. 6, 1998.............. 9:00 a.m.

Building, 77 West Jackson

Blvd., Room 328, Chicago,

IL.

Dallas............................ A. Maceo Smith Federal Sept. 17, 1998............ 9:30 a.m.

Building, 525 Griffin

Street, Room 502, Dallas,

TX.

Denver............................ 1244 Speer Blvd., Room Sept. 17, 1998............ 9:30 a.m.

700, Denver, CO.

San Francisco..................... Oakland Federal Building, Oct. 8, 1998.............. 9:00 a.m.

1301 Clay Street, North

Tower, 2nd Floor,

Conference Rooms A and B,

Oakland, CA.

[[Page 45014]]

OGC HQ, Washington, DC............ 607 14th Street, NW, 2nd Sept. 17, 1998............ 9:30 a.m.

Floor Agenda Room,

Washington, DC.

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Persons interested in attending any of these Regional Office City

meetings on this proposed rulemaking should write or call the following

persons at the addresses and telephone numbers listed to confirm

attendance at the selected site: Gary J. Lieberman, Boston Regional

Office, 99 Summer Street, Suite 1500, Boston, MA 02110-1200, telephone

# (617) 424-5731 ext. 20, facsimile # (617) 424-5743; Barbara S.

Liggett, Washington Regional Office, 1255 22nd Street, NW, Suite 400,

Washington, DC 20037-1206, telephone # (202) 653-8502 ext. 23,

facsimile # (202) 653-5091; Gail R. Hitchcock, Atlanta Regional Office,

Marquis Two Tower, Suite 701, 285 Peachtree Center Ave., Atlanta, GA

30303-1270, telephone # (404) 331-5212 ext. 17, facsimile # (404) 331-

5280; Philip T. Roberts, Chicago Regional Office, 55 West Monroe

Street, Suite 1150, Chicago, IL 60603-9727, telephone # (312) 886-3465

ext. 20, facsimile # (312) 866-5977; Billie Jean Faulks, Dallas

Regional Office, 525 South Griffin Street, Suite 926, LB 107, Dallas,

TX 75202-5093, telephone # (214) 767-6266 ext. 10, facsimile # (214)

767-0156; Timothy J. Sullivan, Denver Regional Office, 1244 Speer

Blvd., Suite 100, Denver, CO 80204-3581, telephone # (303) 844-5226

ext. 12, facsimile # (303) 844-2774; Lisa C. Vandenberg, San Francisco

Regional Office, 901 Market St., Suite 220, San Francisco, CA 94103-

1791, telephone # (415) 356-5002 ext. 18, facsimile # (415) 356-5017;

and Nancy Speight, Office of the General Counsel, 607 14th Street, NW,

Suite 210, Washington, DC 20424-0001, telephone # (202) 482-6680 ext.

205, facsimile # (202) 482-6608.

Copies of all written comments will be available for inspection and

photocopying between 8:00 a.m. and 5:00 p.m., Monday through Friday, at

the Office of General Counsel, Suite 210, 607 14th St., NW, Washington,

DC 20424-0001.

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

of Terms As Used in This Subchapter, Part 2423--ULP Proceedings, and

Part 2429--Miscellaneous and General Requirements are as follows:

Part 2421--Meaning of Terms as Used in This Subchapter

Section 2421.23

The term Charging Party, which appears only in subpart A of part

2423, is not defined in the current regulations. This section now

defines Charging Party.

Section 2421.24

The term Charged Party, which appears only in subpart A of part

2423, is not defined in the current regulations. This section now

defines Charged Party.

Part 2423--Unfair Labor Practice Proceedings

Section 2423.1

ULP charges filed on or after January 11, 1979, have been processed

under this part. Since there are no charges pending that were filed

before that date, this section is no longer required to serve as a

transitional guide and is therefore proposed to be deleted.

It is proposed that current Sec. 2423.2 be renumbered as 2423.1.

The current section encourages the parties to meet and resolve ULP

disputes prior to filing ULP charges. The proposed revisions continue

to encourage and further support such dispute resolution activities by

clarifying that the parties may jointly request or agree to have the

OGC assist them in this endeavor. This proposed revision is consistent

with a revision made to the processing of representation petitions in

1995 (60 FR 67288) (Dec. 29, 1995). The proposed revision also

highlights that Regional Office representatives may assist parties in

informally resolving their ULP dispute as part of the investigation.

Since Regional Office representatives are available to assist

parties in resolving ULP disputes both prior to the filing of a charge

and during the course of the investigation, there is no longer a need

to require a 15-day delay before a Regional Office begins processing a

charge. Accordingly, it is proposed that paragraph (c) be deleted.

Section 2423.2

Since the enactment of the Statute, the OGC has assisted employees,

labor organizations, and agencies in avoiding and resolving labor-

management disputes and enhancing labor-management relationships as

governed by the Statute. The use of a problem-solving approach and the

provision of facilitation, intervention, training, and education

services to the parties provide the participants in the Federal sector

labor-management relations program with an alternative to adversarial

litigation.

The preliminary results of the Customer Service Survey reveal that

improved relationships between labor and management result in the

filing of fewer ULP charges. The provision of ADR services to parties

promotes the purposes and policies of the Statute by: improving and

enhancing parties' labor-management relationships, enabling parties to

avoid ULP disputes, and assisting the parties in resolving ULP disputes

among themselves.

This proposed new section sets forth the purpose for providing ADR

services and the types of services that are available to the parties.

Parties may request assistance or a Region may suggest that the parties

may benefit from such ADR programs. In either situation, ADR programs

under this section are voluntary and undertaken only upon agreement by

both parties.

Section 2423.3

This section, which identifies who may file a ULP charge, is

substantially unchanged.

Section 2423.4

This section, describing the content of a ULP charge, is

substantially unchanged. Sometimes, the individual signing a charge, or

the individual upon whom a charge is served, is not the point of

contact for the Charging or Charged Party, respectively. To avoid any

delay in commencement of the investigation, this section clarifies that

a charge also identifies the points of contact for both parties. This

section also requires facsimile numbers, when such equipment is

available, to be supplied on the charge form. The section continues to

require that the charge contain a clear and concise statement of the

facts alleged to constitute a ULP. However, it is proposed that a party

filing a charge need not be required to specifically cite what

subsection(s) of 5 U.S.C. 7116(a) or (b) are being alleged. Sometimes

parties filing charges are uncertain which subsection to allege and

thus list all or inapplicable subsections, which only confuses the

parties and delays the investigation. The section clarifies that a

charge is a self-contained document which describes the alleged ULP

without the need to refer to other documents. This section also

provides further guidance to parties filing charges as to what

constitutes the supporting evidence and documents which are submitted

to the Region when filing a charge.

[[Page 45015]]

Section 2423.5

The current section, which provides for initial selection of the

ULP procedure or the negotiability procedure when the same issue is

involved, is identical to the provision in part 2424, section 2424.5.

The Chair and Members of the Authority published a Federal Register

notice (63 FR 19413, 19414) (Apr. 20, 1998), stating their intent to

review, and where appropriate, implement mechanisms to improve the

manner in which negotiability appeals are processed, and to revise the

regulations governing review of these appeals. One issue the Authority

requested comments on concerns the relationship between issues arising

under the negotiability appeals process and the ULP process.

Accordingly, since the substance of section 2423.5 is currently under

review, this section is proposed to be removed and reserved.

Section 2423.6

This section continues to describe the requirements for filing and

serving ULP charges and is substantially unchanged. One proposed change

is to allow filing of a charge with a Regional Office by facsimile

transmission. It is proposed that supporting evidence and documents

will continue to be required to be submitted by mail or delivered in

person, not by facsimile transmission. When a charge is filed by

facsimile transmission, an original of the charge need not also be sent

to the Region. Charges also may be served on Charged Parties by

facsimile transmission, if that equipment is available.

Section 2423.7

This proposed new section establishes an alternative case

processing procedure to attempt to resolve the allegations in the

charge after it is filed. This procedure is voluntary and may be

undertaken only upon agreement by both parties. When utilized, the

Region undertakes a problem-solving approach to assist the parties in

resolving the dispute underlying the charge in lieu of initially

investigating the particular facts and determining the merits of the

charge. This alternative case processing procedure allows the parties

to attempt to resolve their underlying dispute prior to the Region

taking evidence. Thus, the Region does not gather any testimonial or

documentary evidence or positions on the merits of the charge during

the alternative case processing procedure. Should the parties be unable

to resolve their dispute, an agent of the Region who was not involved

in the alternative case processing procedure conducts an investigation.

Preliminary results of the Customer Service Survey confirm that a

majority of charges are resolved during the investigatory process. This

alternative case processing procedure allows the parties to agree to

attempt to resolve their dispute prior to attempting to prove their

allegations or defenses. The use of this procedure will assist the

parties in resolving disputes earlier in the process, even if a charge

is filed.

Section 2423.8

This section, similar to proposed Sec. 2423.1, deletes the

requirement to delay an investigation for 15 days since Regional Office

representatives are available to assist parties in resolving ULP

disputes both prior to the filing of a charge and during the course of

the investigation. This section continues the requirement that all

persons are expected to fully cooperate with the Regional Director in

the investigation of charges. The term ``fully cooperate'' is not

currently defined in the regulations. The proposed regulation

delineates what is included within the requirement to cooperate. The

cooperation requirement is identical for all parties, whether a

Charging Party or a Charged Party. The section provides that

cooperation includes, as deemed appropriate by the Regional Director:

(1) making union officials, employees, and agency supervisors and

managers available to give sworn/affirmed testimony regarding matters

under investigation; (2) producing documentary evidence pertinent to

the matters under investigation; and (3) providing statements of

position in the matters under investigation. This is the same standard

of cooperation that always has been applied to Charging Parties and

that always has been expected of Charged Parties. In addition, the

preliminary results of the Customer Service Survey reveal that a

significant majority of agency and labor organization respondents and

individual respondents believes that parties should be required to

cooperate during an investigation. A party is only required to

cooperate to that degree deemed appropriate by the Regional Director,

as determined on a case-by-case basis. However, any party may submit

evidence to the Region during an investigation even if that evidence

was not requested by the Region. In those situations where a Charging

Party fails or refuses to cooperate and such cooperation has been

deemed appropriate by the Regional Director, the Region may dismiss the

charge. In those situations where a Charged Party fails or refuses to

cooperate and such cooperation has been deemed appropriate by the

Regional Director, the General Counsel may, in appropriate

circumstances, exercise existing authority to issue an investigative

subpoena under 5 U.S.C. 7132(a) of the Statute and enforce an

investigative subpoena in an appropriate United States district court

under 5 U.S.C. 7132(b).

This section also continues the General Counsel's policy to protect

the identity of individuals who submit statements and information

during the investigation, and to protect against the disclosure of

documents obtained during the investigation, as a means of assuring the

General Counsel's continuing ability to obtain all relevant

information. The section also notes the new prehearing disclosure

requirement in Sec. 2423.23 that requires parties, after issuance of

complaint but before a ULP hearing, to exchange identification of

witnesses, a synopsis of their expected testimony and documents

proposed to be offered into evidence at the hearing.

Section 2423.9

This section, providing for the amendment of charges, is unchanged.

Section 2423.10

This section, describing the actions that can be taken by a

Regional Director on a charge and the processing of requests for

appropriate temporary relief under 5 U.S.C. 7123(d), remains unchanged

except for editorial modifications.

Section 2423.11

This section describes the process for appealing Regional Director

decisions not to issue a complaint. Aside from editorial modifications,

the section deletes the requirement that a Charging Party serve notice

of an appeal or a request for an extension of time on the other

party(ies). The current section provides that the failure to fulfill

this service requirement does not affect the validity of the appeal.

Since the OGC notifies the Charged Party of an appeal and a request for

extension of time when confirming receipt of an appeal, there is no

need to continue this service requirement. In addition, a new

subsection (e) is added which sets forth the grounds upon which an

appeal may be granted by the General Counsel. The General Counsel may

grant an appeal if a party establishes that one of the following five

grounds exists:

1. The Regional Director's decision did not consider material facts

that would have resulted in issuance of a complaint;

[[Page 45016]]

2. The Regional Director's decision is based on a material fact

that is clearly erroneous;

3. The Regional Director's decision is based on an incorrect

statement of the applicable rule of law;

4. There is no Authority precedent on the legal issue in the case;

or

5. The manner in which the Region conducted the investigation has

resulted in prejudicial error.

These standards, which were first announced in 1996, set forth a

fair and consistent approach to the decisional analysis that is

conducted in each appeal case. Their publication as part of the

regulations puts all persons on notice of the standards needed to be

established to sustain an appeal. In an effort to further promote the

parties' application of the appeals standards in fashioning their

appeal, every dismissal letter issued by a Regional Director routinely

will include an attachment which provides an explanation of the appeals

process and the manner in which each of the standards for review can be

established. The proposed regulation also adds a subsection to codify

the current practice with respect to motions to reconsider decisions on

appeal. Motions are granted only if extraordinary circumstances are

established in the moving papers.

Section 2423.12

This section describes the settlement of ULP charges after a

Regional Director determination to issue a complaint but prior to the

actual issuance of a complaint. This section differs from proposed

Sec. 2423.1 which concerns resolving ULP disputes both before and after

a charge is filed, but in any event before the Regional Director makes

a determination to issue a complaint. This section, which provides for

both unilateral and bilateral settlement agreements, remains unchanged

except for editorial modifications.

Part 2429--Miscellaneous and General Requirements

Section 2429.24

Paragraph (e) of this section, which generally concerns the manner

in which parties may file documents, is revised to reference that ULP

charges are filed pursuant to Sec. 2423.6, and that supporting evidence

and documents may not be submitted to the Region by facsimile

transmission.

Regulatory Flexibility Act Certification

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5

U.S.C. 605(b), the General Counsel of the FLRA has determined that this

regulation, as amended, will not have a significant economic impact on

a substantial number of small entities, because this rule applies to

federal employees, federal agencies, and labor organizations

representing federal employees.

Unfunded Mandates Reform Act of 1995

This rule change will not result in the expenditure by state,

local, and tribal governments, in the aggregate, or by the private

sector, of $100,000,000 or more in any one year, and it will not

significantly or uniquely affect small governments. Therefore, no

actions were deemed necessary under the provisions of the Unfunded

Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This action is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Fairness Act of 1996. This rule

will not result in an annual effect on the economy of $100,000,000 or

more; a major increase in costs or prices; or significant adverse

effects on competition, employment, investment, productivity,

innovation, or on the ability of United States-based companies to

compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act of 1995

The amended regulations contain no additional information

collection or record keeping requirement under the Paperwork Reduction

Act of 1995, 44 U.S.C. 3501, et seq.

List of Subjects in 5 CFR Parts 2421, 2423, and 2429

Administrative practice and procedure, Government employees, Labor

management relations.

For the reasons discussed in the preamble, the General Counsel of

the Federal Labor Relations Authority proposes to amend 5 CFR Parts

2421, 2423, and 2429 as follows:

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

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

follows:

Authority: 5 U.S.C. 7134.

2. Part 2421 is amended by adding Secs. 2421.23 and 2421.24 to read

as follows:

Sec. 2421.23 Charging Party.

Charging Party means the individual, labor organization, activity

or agency filing an unfair labor practice charge with a Regional

Director under part 2423 of this subchapter.

Sec. 2421.24 Charged Party.

Charged Party means the activity, agency or labor organization

charged with allegedly having engaged in, or engaging in, an unfair

labor practice under part 2423 of this subchapter.

PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS

3. The authority citation for part 2423 continues to read as

follows:

Authority: 5 U.S.C. 7134.

3a. Section 2423.1 is removed.

4. Subpart A of part 2423 is revised to read as follows:

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

Sec.

2423.1 Resolution of unfair labor practice disputes prior to a

Regional Director determination to issue a complaint.

2423.2 Alternative Dispute Resolution (ADR) services.

2423.3 Who may file charges.

2423.4 Contents of the charge; supporting evidence and documents.

2423.5 [Reserved]

2423.6 Filing and service of copies.

2423.7 Alternative case processing procedure.

2423.8 Investigation of charges.

2423.9 Amendment of charges.

2423.10 Action by the Regional Director.

2423.11 Determination not to issue complaint; review of action by

the Regional Director.

2423.12 Settlement of unfair labor practice charges after a

Regional Director determination to issue a complaint but prior to

issuance of a complaint.

2423.13-2423.19 [Reserved]

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

Sec. 2423.1 Resolution of unfair labor practice disputes prior to a

Regional Director determination to issue a complaint.

(a) Resolving unfair labor practice disputes prior to filing a

charge. The purposes and policies of the Federal Service Labor-

Management Relations Statute can best be achieved by the collaborative

efforts of all persons covered by that law. The General Counsel

encourages all persons to meet and, in good faith, attempt to resolve

unfair labor practice disputes prior to filing unfair labor practice

charges. If requested or agreed to by both parties, a representative of

the Regional Office, in appropriate circumstances, may participate in

these meetings to assist the parties in identifying the issue and their

interests and in resolving the dispute.

[[Page 45017]]

(b) Resolving unfair labor practice disputes after filing a charge.

The General Counsel encourages the informal resolution of unfair labor

practice allegations subsequent to the filing of a charge and prior to

the issuance of a complaint by a Regional Director. A representative of

the appropriate Regional Office, as part of the investigation, may

assist the parties in informally resolving their dispute.

Sec. 2423.2 Alternative Dispute Resolution (ADR) services.

(a) Purpose of ADR services. The Office of the General Counsel

furthers its mission by promoting stable and productive labor-

management relationships governed by the Federal Service Labor-

Management Relations Statute and by providing services which assist

labor organizations and agencies, on a voluntary basis: to develop

collaborative labor-management relationships; to avoid unfair labor

practice disputes; and to resolve any unfair labor practice disputes

informally.

(b) Types of ADR Services. Agencies and labor organizations may

request the Office of the General Counsel to provide any of the

following services:

(1) Facilitation. Assisting the parties in improving their labor-

management relationship as governed by the Federal Service Labor-

Management Relations Statute;

(2) Intervention. Intervening when parties are experiencing or

expect significant unfair labor practice disputes;

(3) Training. Training labor organization officials and agency

representatives on their rights and responsibilities under the Federal

Service Labor-Management Relations Statute and how to avoid litigation

over those rights and responsibilities, and on utilizing problem

solving and ADR skills, techniques, and strategies to resolve

informally unfair labor practice disputes; and

(4) Education. Working with the parties to recognize the benefits

of, and establish processes for, avoiding unfair labor practice

disputes, and resolving any unfair labor practice disputes that arise

by consensual, rather than adversarial, methods.

(c) ADR services after initiation of an investigation. As part of

processing an unfair labor practice charge, the Office of the General

Counsel may suggest to the parties, as appropriate, that they may

benefit from these ADR services.

Sec. 2423.3 Who may file charges.

Any person may charge an activity, agency or labor organization

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) What to file. The Charging Party may file a charge alleging a

violation of 5 U.S.C. 7116 by completing a form prescribed by the

General Counsel, or on a substantially similar form, that contains the

following information:

(1) The name, address, telephone number, and facsimile number

(where facsimile equipment is available) of the Charging Party;

(2) The name, address, telephone number, and facsimile number

(where facsimile equipment is available) of the Charged Party;

(3) The name, address, telephone number, and facsimile number

(where facsimile equipment is available) of the Charging Party's point

of contact;

(4) The name, address, telephone number, and facsimile number

(where facsimile equipment is available) of the Charged Party's point

of contact;

(5) A clear and concise statement of the facts alleged to

constitute an unfair labor practice including the date and place of

occurrence of the particular acts; and

(6) 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

Office of the Special Counsel 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) Declaration of truth and statement of service. A 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. A charge shall also contain a statement

that the Charging Party served the charge on the Charged Party, and

shall list the person's name, title, location, date of service and

method of service.

(c) Self-contained document. A charge shall be a self-contained

document describing the alleged unfair labor practice without a need to

refer to other documents.

(d) Supporting evidence and documents and potential witnesses. When

filing a charge, the Charging Party shall submit to the Regional

Director any supporting evidence and documents, including, but not

limited to, correspondence and memoranda, records, reports, applicable

collective bargaining agreement clauses, memoranda of understanding,

minutes of meetings, applicable regulations, statements of position and

other documentary evidence. The Charging Party also shall identify

potential witnesses and shall provide a brief synopsis of their

expected testimony.

Sec. 2423.5 [Reserved]

Sec. 2423.6 Filing and service of copies.

(a) Where to file. A Charging Party shall file the charge 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 in any of those regions.

(b) Filing date. A charge is deemed filed when it is received by a

Regional Director.

(c) Method of filing. A Charging Party may file a charge with a

Regional Office in person or by commercial delivery, first-class mail,

or certified mail. A Charging Party also may file a charge by facsimile

transmission if the charge does not exceed 5 pages. If filing by

facsimile transmission, the Charging Party is not required to file an

original copy of the charge with the Region. Supporting evidence and

documents may not be submitted by facsimile transmission.

(d) Service of the charge. The Charging Party shall serve a copy of

the charge (without supporting evidence and documents) on the Charged

Party. Where facsimile equipment is available, the charge may be served

by facsimile transmission in accordance with paragraph (c) of this

section. The Region routinely serves a copy of the charge on the

Charged Party, but the Charging Party remains responsible for serving

the charge in accordance with this paragraph.

Sec. 2423.7 Alternative case processing procedure.

(a) Alternative case processing procedure. The Region may utilize

an alternative case processing procedure to assist the parties in

resolving their unfair labor practice dispute, if the parties agree, by

facilitating a problem-solving approach, rather than initially

investigating the particular facts and determining the merits of the

charge.

[[Page 45018]]

(b) No evidence is taken. The purpose of the alternative case

processing procedure is to resolve the underlying unfair labor practice

dispute without determining the merits of the charge. The role of the

agent is to assist the parties in that endeavor by facilitating a

solution rather than conducting an investigation. No testimonial or

documentary evidence or position on the merits of the charge may be

gathered during the alternative case processing procedure or entered

into the case file.

(c) Investigation is not waived. If the parties are unable to

resolve the dispute, the Region conducts an investigation on the merits

of the charge. The agent who is involved in the alternative case

processing procedure may not be involved in any subsequent

investigation on the merits of the charge.

Sec. 2423.8 Investigation of charges.

(a) Investigation. The Regional Director, on behalf of the General

Counsel, conducts such investigation of the charge as the Regional

Director deems necessary. During the course of the investigation, all

parties involved are afforded an opportunity to present their evidence

and views to the Regional Director.

(b) Cooperation. 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 timely submission of all

potentially relevant information from all potential sources during the

course of the investigation. All persons are expected to cooperate

fully with the Regional Director in the investigation of charges.

Cooperation includes any of the following actions, when deemed

appropriate by the Regional Director:

(1) Making union officials, employees and agency supervisors and

managers available to give sworn/affirmed testimony regarding matters

under investigation;

(2) Producing documentary evidence pertinent to the matters under

investigation; and

(3) Providing statements of position on the matters under

investigation.

(c) Confidentiality. It is the General Counsel's policy to protect

the identity of individuals who submit statements and information

during the investigation, and to protect against the disclosure of

documents obtained during the investigation, as a means of assuring the

General Counsel's continuing ability to obtain all relevant

information. After issuance of a complaint and in preparation for a

hearing, however, identification of witnesses, a synopsis of their

expected testimony and documents proposed to be offered into evidence

at the hearing may be disclosed as required by the prehearing

disclosure requirements in Sec. 2423.23.

Sec. 2423.9 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. 2423.10 Action by the Regional Director.

(a) Regional Director action. The Regional Director may take action

which may consist of the following, as appropriate:

(1) Approving a request to withdraw a charge;

(2) Refusing to issue a complaint;

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

provisions of Sec. 2423.12;

(4) Issuing a complaint; or

(5) Withdrawing a complaint.

(b) Request for appropriate temporary relief. 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 may

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 to seek such temporary

relief is final and may not be appealed to the Authority.

(c) General Counsel requests to the Authority. When a complaint

issues and the Authority approves the General Counsel's request to seek

appropriate temporary relief (including a restraining order) under 5

U.S.C. 7123(d), the General Counsel may 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. Temporary relief will be sought

if the record establishes probable cause that an unfair labor practice

is being committed. Temporary relief will not be sought if it will

interfere with the ability of the agency to carry out its essential

functions.

(d) Actions subsequent to obtaining appropriate temporary relief.

The General Counsel informs the district court which granted temporary

relief pursuant to 5 U.S.C. 7123(d) whenever an Administrative Law

Judge recommends dismissal of the complaint, in whole or in part.

Sec. 2423.11 Determination not to issue complaint; review of action by

the Regional Director.

(a) Opportunity to withdraw a charge. 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.

(b) Dismissal letter. If the Charging Party does not withdraw the

charge within a reasonable period of time, the Regional Director may

dismiss the charge and provide the parties with a written statement of

the reasons for not issuing a complaint.

(c) Appeal of a dismissal letter. The Charging Party may obtain

review of the Regional 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.

(d) Extension of time. The Charging Party may file a request, in

writing, for an extension of time to file an appeal, which shall be

received by the General Counsel not later than 5 days before the date

the appeal is due. A Charging Party shall serve a copy of the request

for an extension of time on the Regional Director.

(e) Grounds for granting an appeal. The General Counsel may grant

an appeal when the appeal establishes at least one of the following

grounds:

(1) The Regional Director's decision did not consider material

facts that would have resulted in issuance of complaint;

(2) The Regional Director's decision is based on a material fact

that is clearly erroneous;

(3) The Regional Director's decision is based on an incorrect

statement of the applicable rule of law;

(4) There is no Authority precedent on the legal issue in the case;

or

(5) The manner in which the Region conducted the investigation has

resulted in prejudicial error.

(f) General Counsel action. The General Counsel may deny the appeal

of the Regional Director's refusal to issue a complaint, or may grant

the appeal and remand the case to the Regional Director to take further

action. The General Counsel's decision on the appeal states the grounds

for denying or granting the appeal and is served on all the parties.

The decision of the General Counsel is final.

(g) Reconsideration. After the General Counsel issues a final

decision, the Charging Party may move for reconsideration of the final

decision if it can establish extraordinary

[[Page 45019]]

circumstances in its moving papers. The motion shall be filed within 10

days after service of the General Counsel's final decision. A motion

for reconsideration shall state with particularity the extraordinary

circumstances claimed and shall be supported by appropriate citations.

Sec. 2423.12 Settlement of unfair labor practice charges after a

Regional Director determination to issue a complaint but prior to

issuance of a complaint.

(a) Bilateral informal settlement agreement. Prior to issuing a

complaint, the Regional Director may afford the Charging Party and the

Charged Party a reasonable period of time to enter into an informal

settlement agreement to be approved by the Regional Director. When a

Charged Party complies with the terms of an informal settlement

agreement approved by the Regional Director, no further action is taken

in the case. If the Charged Party fails to perform its obligations

under the approved informal settlement agreement, the Regional Director

may institute further proceedings.

(b) Unilateral informal settlement agreement. If the Charging Party

elects not to become a party to an informal settlement agreement which

the Regional Director concludes effectuates the policies of the Federal

Service Labor-Management Relations Statute, the agreement may be

between the Charged Party and the Regional Director. The Regional

Director issues a letter stating the grounds for approving the

settlement agreement and declining to issue a complaint. The Charging

Party may obtain review of the Regional Director's action by filing an

appeal with the General Counsel in accordance with Sec. 2423.11(c) and

(d). The General Counsel takes action on the appeal as set forth in

Sec. 2423.11(f) and (g).

Secs. 2423.13-2423.19 [Reserved]

PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS

5. The authority citation for part 2429 continues to read as

follows:

Authority: 5 U.S.C. 7134.

6. 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; except for unfair labor practice charges filed in accordance with

Sec. 2423.6 of this subchapter. 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; except for supporting evidence and documents submitted

pursuant to Secs. 2423.4 and 2423.6 of this subchapter, 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.

* * * * *

Dated: August 19, 1998.

Joseph Swerdzewski,

General Counsel, Federal Labor Relations Authority.

[FR Doc. 98-22645 Filed 8-21-98; 8:45 am]

BILLING CODE 6727-01-P