§ 2424.32 - Parties' responsibilities; failure to raise, support, or respond to arguments; failure to participate in conferences or respond to Authority orders.

§ 2424.32 Parties' responsibilities; failure to raise, support, and/ or respond to arguments; failure to participate in conferences and/ or respond to Authority orders.

Cross Reference

Link to an amendment published at 88 FR 62459, Sept. 12, 2023.

Cross Reference

Link to a correction published at 88 FR 69873, Oct. 10, 2023.

(a) Responsibilities of the exclusive representative. The exclusive representative has the burden of explaining the meaning, operation, and effects of the proposal or provision; and raising and supporting arguments that the proposal or provision is within the duty to bargain, within the duty to bargain at the agency's election, or not contrary to law, respectively, and, where applicable, why severance is appropriate.

(b) Responsibilities of the agency. The agency has the burden of explaining the agency's understanding of the meaning, operation, and effects of the proposal or provision, if the agency disagrees with the exclusive representative's explanations; and raising and supporting arguments that the proposal or provision is outside the duty to bargain or contrary to law, respectively.

(c) Responsibilities to sufficiently explain. Each party has the burden to give sufficiently detailed explanations to enable the Authority to understand the party's position regarding the meaning,

and, where applicable, why severance is not appropriate.

(coperation, and effects of a proposal or provision. A party's failure to provide such explanations may affect the Authority's decision in a manner that is adverse to the party.

(d) Failure to raise, support,

and

or respond to arguments.

(1) Failure to raise and support an argument

will, where appropriate

may, in the Authority's discretion, be deemed a waiver of such argument. Absent good cause:

(i) Arguments that could have been but were not raised by an exclusive representative in the petition for review, or made in its response to the agency's statement of position, may not be made in this or any other proceeding; and

(ii) Arguments that could have been but were not raised by an agency in the statement of position, or made in its reply to the exclusive representative's response, may not be raised in this or any other proceeding.

(2) Failure to respond to an argument or assertion raised by the other party

will, where appropriate, be deemed a concession to

may, in the Authority's discretion, be treated as conceding such argument or assertion.

(

d

e) Failure to participate in conferences; failure to respond to Authority orders. Where a party fails to participate in a post-petition conference pursuant to § 2424.23, a direction or proceeding under § 2424.31, or otherwise fails to provide timely or responsive information pursuant to an Authority order, including an Authority procedural order directing the correction of technical deficiencies in filing, the Authority may, in addition to those actions set forth in paragraph (

c

d) of this section, take any other action that, in the Authority's discretion,

is deemed

it deems appropriate, including dismissal of the petition for review

,

(with or without prejudice to the exclusive representative's refiling of the petition for review), and granting the petition for review and directing bargaining

and/

or rescission of an agency head disapproval under 5 U.S.C. 7114(c)

,

(with or without conditions).

[88 FR 62459, Sept. 12, 2023; 88 FR 69873, Oct. 10, 2023]