Unfair Labor Practice Proceedings

FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2423

Unfair Labor Practice Proceedings

AGENCY: Office of the General Counsel, Federal Labor Relations

Authority.

ACTION: Final rule.

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SUMMARY: The General Counsel of the Federal Labor Relations Authority

(FLRA) revises the regulations regarding the prevention, resolution,

and investigation of unfair labor practice (ULP) disputes (part 2423,

subpart A). The purpose of the revisions is to facilitate dispute

resolution and to simplify, clarify, and improve the processing of ULP

charges. Implementation of the 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 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. The regulations are applicable to any

charge pending or filed after January 1, 1999.

EFFECTIVE DATE: January 1, 1999.

FOR FURTHER INFORMATION CONTACT: David L. Feder, Deputy General

Counsel, at the address listed above or by telephone at (202) 482-6680,

ext. 203.

SUPPLEMENTARY INFORMATION:

Background

On August 24, 1998, the Office of the General Counsel (OGC) of the

FLRA published proposed 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, as well as to the meaning

of terms as used in this subchapter located at part 2421, and to

related miscellaneous and general requirements located at part 2429 (63

FR 45013) (August 24, 1998). These revisions are part of the FLRA's

initiative to facilitate dispute resolution and to simplify, clarify,

and improve the processing of ULP charges. For the sake of clarity,

with respect to the substance of the revisions proposed for parts 2421

and 2429, those revisions have been incorporated, where appropriate, in

subpart A of part 2423. Further, the general provision regarding dates

of applicability of part 2423, which was Sec. 2423.1, is now found

prior to subpart A as Sec. 2423.0. The respective revisions are

discussed below in the section-by-section analysis.

Concurrent with issuing the proposed rule, the General Counsel

invited comment on the proposed rule in one of two ways: By convening a

series of meetings held in each of the seven Regional Office cities as

well as the OGC Headquarters in Washington DC, and by offering the

public an opportunity to submit written comments. All comments, whether

expressed orally at one of the meetings, or submitted in writing, have

been considered prior to publishing the final rule, although all

comments are not specifically addressed below.

Sectional Analyses

Sectional analyses of the revisions to Part 2423--Unfair Labor

Practice Proceedings are as follows:

Part 2423--Unfair Labor Practice Proceedings

Section 2423.0

This newly-created section incorporates and amends Sec. 2423.1 of

the current regulations. Specifically, this section is amended to

clarify that Subpart A of the regulations is applicable to any charge

pending or filed after January 1, 1999. The provision regarding

applicability of this part to any complaint filed on or after October

1, 1997 remains unchanged.

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

Section 2423.1

Numerous commenters responded favorably to the regulatory revision.

One commenter stated that the revisions merely codify and emphasize the

dispute resolution efforts that Regional Office agents routinely

initiate.

Two commenters suggested retaining the 15-day delay before a

Regional Office begins processing a charge because the parties may wish

to resolve any ULP dispute without outside intervention or might prefer

to use another third party neutral to provide such services. The final

regulation deletes the 15-day delay requirement because the parties are

always free to communicate with each other to arrange for any

assistance, either through the efforts of Regional Office staff, or

through other outside assistance, prior or subsequent to filing a

charge. Regional Office representatives routinely assist parties in

resolving their dispute as part of the investigation. Thus, there is no

need to require a 15-day delay before beginning to process a ULP

charge. However, to further accommodate the interest raised by these

commenters, if an outside facilitator is assisting the parties in

resolving the subject matter of a pending ULP charge, the parties may

jointly request that the Regional Director defer the initiation of an

investigation for a reasonable period of time.

One commenter suggested adding a provision which clarifies that the

statutory time limits for filing a ULP charge are not tolled during the

time that the parties are attempting to resolve the dispute. This

suggestion has been incorporated in the final regulation because it is

necessary that parties consider the statutory time limit, which is set

forth at 5 U.S.C. 7118(a)(4), in determining whether to engage in

dispute resolution before a ULP charge is filed. The provision is

inserted as the last sentence of paragraph (a).

Another commenter suggested that there be a presumption in favor of

providing the services upon request. The OGC's public Intervention

Policy currently provides criteria and principles for Regional Offices

to follow in determining whether to offer these services. This Policy

will be incorporated into an Unfair Labor Practice Casehandling Manual

(ULP Manual) that will be issued and made public in the spring of 1999.

A minor editorial modification has been made to paragraph (b) for

clarity purposes.

Section 2423.2

There was almost unanimous agreement among the commenters that the

provision of Alternative Dispute Resolution (ADR) Services promotes the

purposes and policies underlying the Statute. In this regard,

experience has shown that by providing these services to parties: Their

labor-management relationships are improved and enhanced; ULP disputes

are avoided; and, the parties are better able to resolve ULP disputes

among themselves. A desired by-product of the provision of ADR services

has been a reduction in the filing of ULP charges. Paragraph (a) has

been modified to reflect that these ADR services, delivered by the OGC,

are part of the FLRA-wide Collaboration and Alternative Dispute

Resolution Program.

Several commenters suggested inserting a requirement to notify the

national or parent organization when an ADR service is to be provided

at a local

[[Page 65639]]

facility, particularly where a nationwide bargaining unit is involved.

Parties engaged in ADR services delivered by the OGC are free to notify

their national or parent organization. However, to accommodate the

interest raised by these commenters, before undertaking to provide an

ADR service, Regional Office staff may inquire whether notification of

the parties' national or parent organization is desired.

Another commenter recommended that the ADR process be made

mandatory upon the request of one of the parties. Experience has shown

that the success and/or effectiveness of the provision of ADR services

depends upon the parties voluntarily requesting or agreeing to partake

in the process. Paragraph (b) is clarified to state that the parties

may jointly request, or agree to, the provision of an ADR service.

Section 2423.3

No comments were received concerning the proposed rule. New

paragraphs (b) and (c) have been added to incorporate the definitions

for ``Charging Party'' and ``Charged Party'' that were initially

proposed as definitions in proposed new Secs. 2421.23 and 2421.24 of

part 2421.

Section 2423.4

The majority of the comments concerning the proposed rule

recommended retaining the requirement that the charge state the

section(s) and paragraph(s) of the Statute alleged to have been

violated. These commenters stated that preserving this requirement will

help charged parties to better understand the basis of the charge.

Based upon comments received and discussion at the meetings, the OGC

has reconsidered the proposed rule and has decided to retain the

requirement which is set forth in the final rule at paragraph (a)(5).

Several comments suggested that the charge form be amended to

provide space for the charging party to indicate whether it has

attempted to meet with the charged party to resolve the ULP dispute

before the charge was filed and to ask whether the charging party is

willing to attempt to resolve the charge with or without the assistance

of the Regional Office. These matters are routinely considered by the

Regional Office in their initial conversations with the parties in

considering whether the provision of ADR services would be beneficial

in any given case. Since Regional Office staff routinely make these

inquiries, and the parties may communicate with each other prior to

filing a charge, there is no need to amend the charge form.

Many commenters expressed concern regarding the requirement that

supporting evidence and documents be submitted with the charge. These

commenters stated, for various reasons, that it is sometimes difficult

to gather all of the supporting evidence at the time a charge is filed.

This requirement, which is set forth at paragraph (e) is, in relevant

part, the same as the regulatory requirement that has always existed.

The new regulation merely explains the requirement by listing the types

of supporting evidence and documents that are routinely provided by

charging parties. It is necessary to submit supporting evidence with

the charge so that the agent to whom an investigation is assigned is

able to fully understand the basis of the charge and to prepare to talk

with the parties, which is the first step in the investigation process.

This regulation does not preclude parties from submitting additional

evidence and information during the course of the investigation, as it

becomes available. A minor edit also has been made to this paragraph

for clarity purposes.

The final regulation contains a new paragraph (c) concerning

Statement of Service requirements which had been proposed as the second

sentence of paragraph (b). Other minor editorial clarifications have

been made to the final regulation.

Section 2423.5

One comment received suggested that once the Authority revises part

2424 of the regulations concerning negotiability proceedings, the

General Counsel should make a corresponding revision concerning the

availability of the ULP process to resolve certain duty to bargain

issues. As the matter concerning related ULP and negotiability

proceedings is being addressed by the Authority in its final

regulations in part 2424, there is no reason to address the matter in

subpart A of part 2423. The Regions will continue to follow Sec. 2424.5

until the effective date of a new rule promulgated by the Authority.

Moreover, the deletion of any provision addressing negotiability

matters from subpart A of part 2423 has no impact on the availability

of the ULP process to a charging party to resolve allegations that a

charged party failed to fulfill a statutory bargaining obligation and

committed a ULP.

Section 2423.6

Almost all of the comments on this section were favorable and

pertained to the use of facsimile transmission to file a charge.

Several commenters expressed concern regarding verification of receipt

of a charge filed by facsimile transmission. This concern has been

addressed by clarifying in paragraph (c) that a ``charging party

assumes responsibility for receipt of a charge.''

Two commenters questioned the proposed imposition of a 5-page

limitation on those charges filed by facsimile transmission. One

commenter inquired about the basis for the proposed limitation and

another was concerned about practical problems that arise upon the

imposition of a page limitation. The final regulation has been changed

to contain a 2-page limitation for those charges filed by facsimile.

After reviewing the proposed regulation, the OGC has concluded that in

order to expedite the inception of the investigatory process, charging

parties must present their factual allegations supporting the charge in

a succinct and organized manner. This may be accomplished in 2 pages.

The final regulation also clarifies that a charging party may not file

a charge by electronic mail and that supporting evidence and documents

shall be filed in person, by commercial delivery, first-class mail, or

certified mail. Recognizing that at times, supporting evidence and

other documents may be voluminous, the regulation provides that all

such documents may not be filed by facsimile transmission. Other minor

editorial revisions have been made to this section to clarify that

parties are aware that a charge may now be filed by facsimile

transmission.

Section 2423.7

One commenter and others who favor the use of facilitation as an

effective means to resolve disputes in some circumstances nevertheless

expressed concern that there are other circumstances that may require

enforcement of the Statute through issuance of a formal complaint. The

OGC agrees that not every dispute is an appropriate candidate for the

alternative case processing procedure. Regional staff will apply

criteria and principles in determining whether to offer an alternative

case processing procedure, upon joint request, to the parties. These

criteria and principles currently are contained in the OGC's public

Intervention Policy and will be incorporated into the public ULP

Manual. The intent underlying the revision of the regulations is not to

accord lesser priority to the General Counsel's essential prosecutorial

role in seeking enforcement of the Statute through traditional means,

but rather to recognize the use of an alternative case processing

procedure and other ADR techniques as tools to assist parties in

resolving their dispute.

[[Page 65640]]

Another commenter in favor of the alternative case processing

procedure suggested that the process be mandatory upon the request of

one of the parties. For the reasons discussed above concerning ADR

services under Sec. 2423.2, the OGC has determined that a strictly

voluntary process works best. For those reasons, paragraph (a) has been

amended to clearly state that the parties must ``voluntarily'' agree to

use the alternative case processing procedure.

In addition, paragraph (b) has been clarified by substituting

``shall'' for ``may'' in the last sentence. This revision is necessary

to contrast the difference between the alternative case processing

procedure and a traditional investigation. In the former, the regional

agent facilitates a problem-solving process which does not, in any way,

involve taking evidence or the parties' positions on the merits.

Several commenters suggested that attempts to resolve the dispute

should also occur during the investigation. This concern is

specifically addressed in Sec. 2423.1(b) concerning resolving ULP

disputes after filing a charge, where it is stated that a

``representative of the appropriate Regional Office, as part of the

investigation, may assist the parties in informally resolving their

dispute.'' Only one other minor editorial modification has been made to

this paragraph.

The comments received regarding paragraph (c) concerned the last

sentence. Several individuals recommended replacing ``may'' with

``shall'' to indicate a mandatory requirement that another

representative of the Regional Office will conduct an investigation in

the event an alternative case processing procedure is unsuccessful.

Another commenter suggested that the person who presides over the

alternative case processing procedure is better situated to investigate

the case, if necessary. Yet another commenter suggested that the word

``shall'' be used with the caveat that the parties be allowed to waive

the requirement that the same agent who facilitated the alternative

case processing procedure shall not be the same person who investigates

the merits of the charge. The last recommendation has been modified and

adopted because it addresses the interests of the parties, as well as

those of the Regional Director.

An additional concern was raised about the potential for disclosure

of information discussed during the alternative case processing

procedure should the dispute not be resolved and a ULP investigation be

necessary. No evidence pertaining to the alleged ULP violation will be

obtained during the alternative case processing procedure. Moreover,

the agent involved in working with the parties in the alternative case

processing procedure will not be involved in any manner in the

investigation and decision-making process of the ULP charge, unless the

parties and the Regional Director agree otherwise. These safeguards

ensure that the alternative case processing procedure will have no

impact on the investigation, if deemed necessary.

Section 2423.8

This section of the proposed regulations generated the most

comments. Many commenters who favor the proposed regulation stated that

it is useful to explain what specific actions are expected of a party

during an investigation.

Many other commenters expressed concern that the proposed

regulation would upset the careful balance that currently exists

between Regional Directors and charged parties. That is, under the

regulation, commenters stated that Regional Directors will have access

to all of the evidence whereas charged parties do not have access to

the statements relied upon by the Regional Director unless and until

after that person testifies at trial.

Other concerns raised by commenters suggest that, among other

things: (1) There is no statutory authority to order Federal

supervisors and managers to give sworn testimony; (2) based on a vague

charge, the Regional Director will insist that a charged party provide

sworn statements; (3) the General Counsel should delete the reference

to cooperation in the final regulations; (4) the Regional Director

should be required to disclose exculpatory evidence to the charged

party representative obtained during the course of an investigation;

(5) the regulation provides the Regional Director with investigatory

powers that exceed the current level of discovery afforded litigants

before Administrative Law Judges under Sec. 2423.23; (6) a detailed

explanation for expanding the General Counsel's investigatory authority

should be given because the current procedures have worked well for 20

years; and (7) that in exchange for charged party cooperation, the

Regional Offices should disclose their case file prior to a decision on

the merits. It further is suggested that unlike the private sector,

where there is good reason to withhold the General Counsel's evidence

due to the prospect of retaliation that may befall a charging party or

neutral witness, retaliation should not be an issue in the Federal

sector because a Federal employee has avenues of redress before several

different agencies. The following discussion addresses these concerns.

The role of a Regional Office investigator, in part, is to obtain

the best possible relevant evidence for a Regional Director to be able

to reach a proper disposition in each case. This is an OGC quality

standard applicable to all investigations which is part of the OGC's

current, public Quality of Investigations Policy, and which will be

incorporated into the public ULP Manual. To this end, a regional agent

must identify the questions to ask witnesses, and ask the parties to

provide relevant documents from all potential sources. So that a

complete record is developed, it is necessary that both the charging

party and the charged party voluntarily cooperate during the

investigation. None of the commenters have cited any legal authority

which purportedly allows any Federal agency that has been charged with

violating a Federal law, to refuse to cooperate with another Federal

agency that has been charged by the Congress to initiate an

investigation to determine if the alleged violation of law has

occurred, and if so, to prosecute, absent settlement, the agency

charged with violating the law.

Current OGC practice protects a charged party's right to represent

its agents. If a Regional Director deems it necessary to take the

sworn/affirmed statement of a charged party witness, whether an agency

or a union witness, the current OGC practice provides that all regional

agents first contact the charged party representative to arrange to

take the charged party witness' statement. No regional agent is

authorized to directly initiate contact with any current agency

manager/supervisor or union official who is an agent of a charged party

agency or union unless authorized to do so by a charged party agency or

union representative. Second, anytime it is necessary to take the

statement of a charged party witness, the charged party has the right

to have a representative present when the statement is given. These

safeguards protect the interest of a charged party to represent its

agents.

If a charging party fails to cooperate in an investigation, after

being afforded ample opportunity to do so, the charge will be dismissed

for lack of cooperation, absent withdrawal. If a neutral entity or a

charged party fails to cooperate in an investigation, after being

afforded ample opportunity to do so, the final regulation provides that

an investigatory subpoena may be issued and enforced.

A new paragraph (c) has been added to the final regulation to

incorporate a

[[Page 65641]]

provision concerning investigatory subpoenas. This section is modeled

after, and consistent with, the subpoena provision set forth at

Sec. 2423.28 in subpart B of part 2423, which concerns post complaint

and prehearing procedures. The authority for both of these sections is

derived from section 7132 of the Statute. Under section 7132, the

General Counsel, the Authority Members, and the Federal Service

Impasses Panel have the same authority to issue and enforce subpoenas.

Because charged parties are usually cooperative to the extent

deemed necessary by the Region during an investigation, it is

anticipated that only in rare situations will it be necessary for an

investigatory subpoena to be issued. During the meetings, many

commenters suggested that since these subpoenas will be used only on

rare occasions, they should only be issued upon the approval of the

General Counsel. To accommodate this interest, the final regulation

provides that an investigatory subpoena will be issued only by the

General Counsel, upon the recommendation of a Regional Director.

Moreover, prior to the issuance of an investigatory subpoena, a charged

party will be afforded ample opportunity to cooperate in the

investigation before a Regional Director recommends to the General

Counsel to issue an investigatory subpoena ``for the attendance and

testimony of witnesses and the production of documentary or other

evidence.'' Further, the Regional Directors will consider, among other

things, the following factors before recommending the issuance of an

investigatory subpoena: (1) Whether the evidence submitted by charging

party and any neutral witnesses establishes a potential violation (if

the Region has sufficient evidence for the Regional Director to decide

the merits of the charge, it would not be necessary to require the

charged party to produce additional evidence); (2) whether the evidence

sought is relevant and material and is neither privileged, unduly

repetitious nor unreasonably cumulative; (3) whether the evidence is

necessary to decide a factual issue which must be resolved to determine

whether or not a violation of the Statute has occurred, and that

evidence is not otherwise available; (4) whether the evidence sought is

not within the control of the charging party; (5) whether the evidence

can be produced without an undue burden and is specific, narrowly

tailored, and reasonable; and (6) the likelihood of compliance, and

failing that, the prospect for successful enforcement of the subpoena.

Once the General Counsel has determined to issue a subpoena, the

investigative agent will once again contact the charged party

representative and give the charged party one final opportunity to

voluntarily cooperate with the investigation. The charged party will be

informed that absent voluntary compliance, a subpoena will issue, and

absent compliance with the subpoena, enforcement will be sought in an

appropriate United States district court.

Thus, it is expected that the use of an investigatory subpoena will

occur only in rare cases. Parties should understand that its use will

be infrequent and that it is not intended either as a substitute for,

or to lessen, the charging party's burden of submitting evidence to

support the underlying allegations of a charge.

Consistent with Sec. 2423.28, under paragraph (c)(2), a provision

for the revocation of an investigatory subpoena has been included,

although not statutorily required under section 7132. Paragraph (c)(3)

contains the applicable standards for ruling on a petition to revoke a

subpoena. These standards are, with minor editorial modifications, the

same as those set forth at paragraph (e)(1) of Sec. 2423.28. In

addition, the regulation provides that any petition to revoke, and any

ruling on the petition to revoke, shall become part of the official

record if there is a hearing under subpart C of this part.

Subsection (c)(4) addresses the situation where a charged party

fails to comply with a subpoena issued by the General Counsel. In this

situation, the General Counsel makes the determination whether to

institute proceedings in the appropriate district court for the

enforcement of the subpoena.

The General Counsel's confidentiality policy reflected in paragraph

(d) (previously paragraph (c) in the proposed rule), which is the same

as stated in the proposed rule, has existed for many years and remains

sound. Maintaining the confidentiality of individuals who submit

statements and information during the course of an investigation and to

protect against the disclosure of documents obtained during an

investigation is essential. However, it bears noting that under the

section of the Authority's revised post-complaint regulations published

on July 31, 1997 (62 FR 40911), which specifically concerns new

prehearing disclosure requirements (Sec. 2423.23), the OGC attorney is

required to disclose to charged parties, among other things, the

witnesses and documents on which the OGC attorney will rely to prove

the General Counsel's case, should a complaint issue and, absent

settlement, the case goes to hearing.

Section 2423.9

No comments were received concerning this section.

Section 2423.10

No comments were received concerning this section. Minor editorial

modifications have been made to paragraphs (a), (b) and (c). One

additional edit to proposed paragraph (c) has been made in the next-to-

last sentence. In this regard, to be consistent with the remainder of

the paragraph, the word ``will'' has been changed to ``may.''

Section 2423.11

Commenters submitted favorable responses to the proposed revisions

in this section. Two commenters suggested that the charging party be

required to serve a copy of an appeal of a Regional Director

determination not to issue complaint on the charged party. This

interest has been addressed by modifying paragraph (c) which requires

the OGC to serve notice on the charged party that an appeal has been

filed.

Another commenter suggested adding the standards Regional Directors

use to exercise prosecutorial discretion to this section. These

standards are set forth in the OGC's public Prosecutorial Discretion

Policy, which will be incorporated in the public ULP Manual.

Other minor editorial modifications have been made to this section.

For example, paragraphs (a) and (b) have been clarified to state that

the Regional Director acts on behalf of the General Counsel when

determining not to issue a complaint. Thus, a dismissal letter issued

by a Regional Director, on behalf of the General Counsel, constitutes

the ``written statement of reasons for not issuing a complaint'' as

required by section 7118(a) of the Statute. Further, an appeal of a

Regional Director's dismissal decision will only be granted on one of

the specific grounds in paragraph (e). The review, therefore, is

similar to the Authority's review of Regional Directors' decisions and

orders in representation cases, and is not a de novo review. Upon an

appeal, the appeal letter states the grounds listed in paragraph (e)

for granting or denying the appeal.

One other suggestion concerned clarification of paragraph (g) to

state that the General Counsel's decision on reconsideration is final.

This suggestion has been adopted. In addition, this paragraph has been

changed to state that a motion for reconsideration shall be

[[Page 65642]]

filed within 10 days of the date on which the General Counsel's

decision is postmarked. The provisions for filing an appeal and for

filing a motion for reconsideration are governed by 5 CFR 2429.22.

Section 2423.12

The only change made to this section appears in paragraph (b) which

now clarifies that the Regional Director acts on behalf of the General

Counsel in approving a unilateral settlement agreement.

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

final rule will not have a significant 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 final 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 final rule is not a major rule as defined by section 804 of

the Small Business Regulatory Enforcement Fairness Act of 1996. This

final 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 final rule contains no additional information collection or

record keeping requirements under the Paperwork Reduction Act of 1995,

44 U.S.C. 3501, et seq.

List of Subjects in 5 CFR Part 2423

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 revises 5 CFR part 2423 as

follows:

PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS

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

follows:

Authority: 5 U.S.C. 7134.

2. Section 2423.0 and subpart A of Part 2423 are revised to read as

follows:

Sec.

2423.0 Applicability of this part.

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

2423.1 Resolution of unfair labor practice disputes prior to a

Regional Director determination whether 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]

Sec. 2423.0 Applicability of this part

This part is applicable to any charge of alleged unfair labor

practices pending or filed with the Authority on or after January 1,

1999, and any complaint filed on or after October 1, 1997.

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

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

Regional Director determination whether 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 issues and

their interests and in resolving the dispute. Attempts to resolve

unfair labor practice disputes prior to filing an unfair labor practice

charge do not toll the time limitations for filing a charge set forth

at 5 U.S.C. 7118(a)(4).

(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

a determination on the merits of the charge 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 and implements the agency-wide Federal Labor

Relations Authority Collaboration and Alternative Dispute Resolution

Program 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

jointly request, or agree to, the provision of the following services

by the Office of the General Counsel:

(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

[[Page 65643]]

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.

(a) Filing 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.

(b) Charging Party. Charging Party means the individual, labor

organization, activity or agency filing an unfair labor practice charge

with a Regional Director.

(c) Charged Party. Charged Party means the activity, agency or

labor organization charged with allegedly having engaged in, or

engaging in, an unfair labor practice.

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, a statement of the section(s) and

paragraph(s) of the Federal Service Labor-Management Relations Statute

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

the particular acts; and

(6) A statement 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;

(iii) Involves a negotiability issue raised by the Charging Party

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

this subchapter; or

(iv) Has been the subject of any other administrative or judicial

proceeding.

(7) A statement describing the result or status of any proceeding

identified in paragraph (a)(6) of this section.

(b) Declaration of truth and statement of service. A charge shall

be in writing and signed, and shall contain a declaration by the

individual 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 individual's knowledge and belief.

(c) Statement of service. A charge shall also contain a statement

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

shall list the name, title and location of the individual served, and

the method of service.

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

document describing the alleged unfair labor practice without a need to

refer to supporting evidence documents submitted under paragraph (e) of

this section.

(e) Submitting supporting evidence and documents and identifying

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 the

Regional Director in person or by commercial delivery, first-class

mail, or certified mail. Notwithstanding Sec. 2429.24(e) of this

subchapter, a Charging Party also may file a charge by facsimile

transmission if the charge does not exceed 2 pages. If filing by

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

original copy of the charge with the Region. A Charging Party assumes

responsibility for receipt of a charge. Supporting evidence and

documents shall be submitted to the Regional Director in person, by

commercial delivery, first-class mail, or certified mail, not by

facsimile transmission. Charges shall not be filed by electronic mail.

(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

voluntarily agree, by facilitating a problem-solving approach, rather

than initially investigating the particular facts and determining the

merits of the charge.

(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 positions on the merits of the charge shall 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 shall not be involved in any subsequent

investigation on the merits of the charge, unless the parties and the

Regional Director agree otherwise.

Sec. 2423.8 Investigation of charges.

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

[[Page 65644]]

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 shall 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) Investigatory subpoenas. If a person fails to cooperate with

the Regional Director in the investigation of a charge, the General

Counsel, upon recommendation of a Regional Director, may decide in

appropriate circumstances to issue a subpoena under 5 U.S.C. 7132 for

the attendance and testimony of witnesses and the production of

documentary or other evidence. However, no subpoena shall be issued

under this section which requires the disclosure of intramanagement

guidance, advice, counsel or training within an agency or between an

agency and the Office of Personnel Management.

(1) A subpoena shall be served by any individual who is at least 18

years old and who is not a party to the proceeding. The individual who

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

(i) By delivering it to the witness in person;

(ii) By registered or certified mail; or

(iii) By delivering the subpoena to a responsible individual (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 Regional Director and the General Counsel.

(2) 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 General Counsel.

(3) The General Counsel shall revoke the subpoena if the witness 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

General Counsel shall state the procedural or other grounds for the

ruling on the petition to revoke. The petition to revoke, and any

ruling on the petition to revoke, shall become part of the official

record if there is a hearing under subpart C of this part.

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

by the General Counsel, the General Counsel shall determine whether to

institute proceedings in the appropriate district court for the

enforcement of the subpoena. Enforcement shall not be sought if to do

so would be inconsistent with law, including the Federal Service Labor-

Management Relations Statute.

(d) 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 ensuring 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 any of

the following actions, 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 Sec. 2423.12;

(4) Issue a complaint; or

(5) Withdraw 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 appropriate

temporary relief is final and shall 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 may be sought

if it is just and proper and the record establishes probable cause that

an unfair labor practice is being committed. Temporary relief shall not

be sought if it would interfere with the ability of the agency to carry

out its essential functions.

(d) Actions subsequent to obtaining appropriate temporary relief.

The General Counsel shall inform 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 upon the completion of an

investigation under Sec. 2423.8, the Regional Director, on behalf of

the General Counsel, determines that issuance of a complaint is not

warranted because 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,

on behalf of the General Counsel, 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

[[Page 65645]]

a complaint by filing an appeal with the General Counsel within 25 days

after service of the Regional Director's decision. A Charging Party

shall serve a copy of the appeal on the Regional Director. The Office

of the General Counsel shall serve notice on the Charged Party that an

appeal has been filed.

(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 finding of 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

listed in paragraph (e) of this section for denying or granting the

appeal, and is served on all the parties. Absent a timely motion for

reconsideration, 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 circumstances in its moving

papers. The motion shall be filed within 10 days after the date on

which the General Counsel's final decision is postmarked. A motion for

reconsideration shall state with particularity the extraordinary

circumstances claimed and shall be supported by appropriate citations.

The decision of the General Counsel on a motion for reconsideration is

final.

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, on behalf of the General Counsel, shall issue 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

shall take action on the appeal as set forth in Sec. 2423.11(e)-(g).

Secs. 2423.13-2423.19 [Reserved]

Dated: November 24, 1998.

Joseph Swerdzewski,

General Counsel, Federal Labor Relations Authority.

[FR Doc. 98-31763 Filed 11-27-98; 8:45 am]

BILLING CODE 6727-01-P