[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Proposed Rules]
[Pages 28378-28389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13661]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 62, No. 100 / Friday, May 23, 1997 / Proposed
Rules
[[Page 28378]]
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FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Parts 2423 and 2429
Unfair Labor Practice Proceedings: Miscellaneous and General
Requirements
AGENCY: Federal Labor Relations Authority.
ACTION: Notice of proposed rulemaking; notice of meeting.
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SUMMARY: The Federal Labor Relations Authority proposes to revise
portions of its regulations regarding unfair labor practice (ULP)
proceedings (Part 2423) and miscellaneous and general requirements
(Part 2429). The purpose of the proposed revisions is to streamline the
existing regulations, facilitate dispute resolution, clarify the
matters to be adjudicated, provide more flexibility to the participants
in the ULP process, and simplify the filing and service requirements.
Implementation of the proposed changes will enhance the ULP process,
raising the level of advocacy and facilitating adjudication of ULP
claims.
DATES: Comments must be received on or before June 30, 1997. Meetings
will be held at 10:00 a.m. on June 12, 1997, in Chicago, Illinois, and
at 10:00 a.m. on June 18, 1997, in Washington, D.C.
ADDRESSES: Mail or deliver written comments to the Office of Case
Control, Federal Labor Relations Authority, 607 14th Street, NW.,
Washington, DC 20424-0001. The June 12, 1997 meeting will be held at
the Xerox Centre, 55 West Monroe Street, Room 1610, Chicago, Illinois
60603. The June 18, 1997 meeting will be held at the Federal Labor
Relations Authority's Headquarters, 607 14th St. NW., Washington, DC
20424, 2nd Floor Agenda Room.
FOR FURTHER INFORMATION CONTACT: Regulatory information or registration
for the Washington meeting: Edward Bachman, Office of Case Control, at
the address listed above or by telephone # (202) 482-6540. Registration
for the Chicago meeting: Peter Sutton, Chicago Regional Office, Federal
Labor Relations Authority, 55 West Monroe Street, Suite 1150, Chicago,
Illinois 60603, telephone # (312) 886-3465 ext. 22.
SUPPLEMENTARY INFORMATION: The Federal Labor Relations Authority
established a Task Force to study and evaluate the policies and
procedures in effect concerning the processing of a ULP complaint from
the issuance of the complaint through the transfer of the case to the
Authority after the issuance of a decision and recommended order of an
Administrative Law Judge-- Secs. 2423.12-2423.31 of the current
regulations. To this end, the Task Force published a Federal Register
notice (60 FR 11057) (Mar. 1, 1995) inviting parties to submit written
recommendations on ways to improve the post complaint ULP process. In
addition, the Task Force convened focus groups in order to solicit and
consider customers' views prior to proposing these revisions. The Task
Force's review of the ULP process also included review of certain of
the miscellaneous and general requirements of Part 2429.
The proposed revisions, driven for the most part by the
recommendations of the Task Force and focus group participants,
represent the Federal Labor Relations Authority's intent to simplify,
clarify, and improve the ULP regulations as well as related
miscellaneous and general regulations in Part 2429. The proposed
revisions attempt to eliminate perceptions of unfairness and potential
conflict of interest problems, noted by the Task Force, by moving
certain post-complaint, administrative responsibilities from the
Regional Director to the Office of Administrative Law Judges. Another
major aspect of this revision is the division of Part 2423 into four
sequential subparts: Subpart A--Filing, Investigating, Resolving and
Acting on Charges-- Secs. 2423.2-2423.19; Subpart B--Post Complaint,
Prehearing Procedures--Secs. 2423.20-2423.29; Subpart C--Hearing
Procedures--Secs. 2423.30-2423.39; and Subpart D--Post-transmission and
Exceptions to Authority Procedures--Secs. 2423.40-2423.49. Other than
the minor revisions to Secs. 2423.9 and 2423.11 included in these
proposed revisions, Subpart A, which sets forth the precomplaint
procedures, will be revised at a later date. With regard to Subpart A,
the Office of the General Counsel of the Federal Labor Relations
Authority has already established internal policies to improve the
precomplaint process. Recent examples include the Office of the General
Counsel's policies concerning Settlement, Prosecutorial Discretion,
Scope of Investigation, Intervention, and Quality in ULP
Investigations. Proposed revisions to Subpart A are anticipated for
1998.
In connection with the proposed revisions to Parts 2423 and 2429,
two focus group meetings will be conducted. The first focus group
meeting will be held on June 12, 1997, at the Xerox Centre, 55 West
Monroe Street, Room 1610, Chicago, Illinois 60603, at 10:00 a.m.
Persons interested in attending this first meeting on this proposed
rulemaking should write or call Peter Sutton, Chicago Regional Office,
Federal Labor Relations Authority, 55 West Monroe Street, Suite 1150,
Chicago, Illinois 60603, telephone # (312) 886-3465 ext. 22, to confirm
attendance. The second focus group meeting will be held on June 18,
1997, at the Federal Labor Relations Authority's Headquarters, 607 14th
St. N.W., Washington, D.C. 20424, 2nd Floor Agenda Room, at 10:00 a.m.
Persons interested in attending this second meeting on this proposed
rulemaking should write or call Edward Bachman, Office of Case Control,
at the address and phone number listed in the preceding section to
confirm attendance.
Copies of all written comments will be available for inspection and
photocopying between 8 a.m. and 5 p.m., Monday through Friday, in Suite
415 at the Office of Case Control.
Sectional analyses of the proposed amendments and revisions to Part
2423-- Unfair Labor Practice Proceedings and Part 2429--Miscellaneous
and General Requirements are as follows:
Part 2423--Unfair Labor Practice Proceedings
Section 2423.1
No change is made to the text; however, the section is separated
from all subparts to reflect its applicability to the entire part.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
Sections 2423.2-2423.8, 2423.10
No changes are made at this time.
[[Page 28379]]
Section 2423.9
Subsection (a)(3) is amended to incorporate changes to the
settlement regulations. Subsection (a)(5) of the current regulations,
which permits the Regional Director to transfer stipulations of fact to
the Authority pursuant to Sec. 2429.1, is omitted to reflect the
proposed deletion and reservation of Sec. 2429.1 from the revised
regulations. Subsection (a)(6) is redesignated as subsection (a)(5).
Section 2423.11
This section is revised in accord with the new sequential
arrangement of the ULP regulations. The general settlement policy in
current subsection (a) is deleted. Revised Sec. 2423.11 consists of the
precomplaint informal settlement language contained in current
subsections (b) (1) and (2). Post complaint, prehearing settlement
provisions, currently in subsections (c)-(d), are revised and removed
to Subpart B, at proposed Sec. 2423.25. Similarly, the provisions
currently contained in subsection (e), regarding settlements after the
opening of the hearing, are revised and moved to Subpart C, proposed
Sec. 2423.31.
Sections 2423.12-2423.19
These sections are reserved.
Subpart B--Post Complaint, Prehearing Procedures
Section 2423.20
Matters related to the complaint and answer, which appear in
Secs. 2423.12 and 2423.13 of the current regulations, are consolidated
here. A new provision in subsection (a)(5), requiring that the
complaint set out the relief sought, is intended to clarify both the
purpose of the complaint and the remedy to be obtained. Subsection
(a)(6) regarding scheduling the date, time, and place of the hearing
reflects the current practice, wherein the Regional Director sets forth
in the complaint the date, time, and place of the hearing established
by the Administrative Law Judge. Subsection (b) retains the 20-day
answer period established in Sec. 2423.13 of the current regulations.
Subsections (c) and (d) transfer to the Administrative Law Judge
certain adjudicatory responsibilities related to the complaint and
answer--including receiving the pleadings, ruling on motions and
amendments, and scheduling conference and hearing dates. Under the
current regulations, many of these items are the responsibility of the
Regional Director. Subsection (d) clarifies the authority of the Chief
Administrative Law Judge to designate judges in an efficient and
expeditious manner.
Section 2423.21
This section incorporates and amends the current motions procedure,
set out in Sec. 2423.22 of the current regulations. Specifically,
subsection (a) sets forth the general requirements of motions
procedure. Subsection (b) shifts the responsibility for ruling on
prehearing motions from the Regional Director to the Administrative Law
Judge. This accords with the changes in responsibility made in the
previous section. In addition, the time deadline for filing prehearing
motions is changed from 10 days to 15 days before the hearing. This is
intended to sharpen the factual and legal issues earlier in the
proceedings and, as a result, clarify the matters being adjudicated.
Requiring earlier party involvement also is expected to facilitate the
resolution of disputes. Subsections (c) and (d) explain the filing
process for post-transmission and interlocutory motions.
Section 2423.22
This section amends the current Sec. 2423.15 by establishing a
standard of review for motions to intervene and clarifying the extent
to which intervenors may participate in the proceedings. These changes
are expected to improve the Administrative Law Judge's decision-making
regarding intervention, improve the Authority's ability to review
rulings on intervention, and, in time, establish a uniform body of law
in this area. The changes generally accord with Merit Systems
Protection Board practice (5 CFR 1201.34).
Section 2423.23
This new section is intended to facilitate the trial process by
both broadening prehearing disclosure obligations and causing this
exchange of information to occur at least 21 days in advance of the
hearing. The 21-day period is necessary in order to permit the parties
time to properly evaluate and meet deadlines involving other pre-
hearing matters, such as motions, subpoenas, and the pre-hearing
conference. For example, the exchange of witness lists and theories of
the case 21 days prior to the hearing will assist parties in making
informed determinations concerning subpoena requests, which requests
must be made 15 days prior to the hearing, pursuant to Sec. 2429.7. By
contrast, under the current regulations (Sec. 2423.14(a)), witness
lists and documents are exchanged immediately before or at the start of
the hearing, and case theories are often not revealed until the hearing
begins. Involving the parties in the disclosure process well in advance
of the hearing should clarify the issues to be litigated and enable
knowledgeable settlement discussions.
Section 2423.24
This new section sets forth an expanded role for the Administrative
Law Judge in the prehearing process, specifically providing for the
Judge's regulation of the course and scheduling of prehearing matters.
Under subsection (c), the Administrative Law Judge has the discretion
to issue a prehearing order. Subsection (d) renders mandatory a
prehearing conference to be scheduled by the Administrative Law Judge,
unless the Administrative Law Judge determines that the conference is
not necessary and no party has moved for a prehearing conference. At
such conferences, which may occur telephonically or in person, the
parties must be prepared to discuss, narrow, and resolve the issues set
forth in the complaint and answer. The matters that may be discussed at
the prehearing conference are specifically set forth in the regulation.
As with Sec. 2423.23, this subsection emphasizes the discussion and
resolution of issues at an earlier stage in the proceedings. Subsection
(e), which grants the Administrative Law Judge authority to impose
sanctions as appropriate, such as the exclusion of evidence or
submissions regarding sanctions, represents a substantial change from
the current regulations. Such authority accords with the regulations of
both the Merit Systems Protection Board (MSPB) (5 CFR 1201.43) and
Equal Employment Opportunity Commission (EEOC) (29 CFR 1614.109(c)) as
well as other administrative agencies. In addition to the new
provisions set forth above, this section also incorporates the current
Sec. 2423.12(c), which addresses changing the date, time, or place of
hearing, as well as some of the powers of the Administrative Law Judge
set forth in the current Sec. 2423.19.
Section 2423.25
The provisions regarding post complaint, prehearing settlements of
an informal or formal nature, that appear in the current Sec. 2423.11,
are moved to this section and appear in subsections (a), (b), and (c).
A significant change to the overall settlement process is the provision
for the settlement judge program in subsection (d). This program
provides the parties with an Administrative Law Judge or other
appropriate official to conduct negotiations for informal settlements.
[[Page 28380]]
The settlement official shall not be the hearing judge unless otherwise
agreed to by the parties. Further, all settlement proceedings under
this program are confidential. This revision implements a successful
trial program that has been tested by the Authority for the past two
years and closely parallels the National Labor Relations Board's
settlement judge program regulations (29 CFR 102.35).
Section 2423.26
This is a new section that supersedes the current stipulation
provision in Sec. 2429.1. As under current stipulation practice, the
parties must agree that no material issue of fact exists. Subsection
(a) of the revised regulation provides that the parties may jointly
move to have a case considered on stipulation. Subsection (b) of the
revised regulation clarifies that stipulations of fact may be submitted
to the Administrative Law Judge rather than to the Authority. If the
stipulation is deemed adequate, the Judge may adjudicate the case on
the basis of the stipulation. This was not expressly authorized in the
current regulations. Subsection (c) alters the current procedure, by
providing that the Authority has discretion to grant such motions when
the Authority concludes that a decision by the Administrative Law Judge
would not assist in resolution of the case.
Section 2423.27
This section creates a specific regulation for the filing of a
motion for summary judgment. The current regulations do not provide for
the filing of such motions, although the Authority has held that
motions for summary judgment
serve the same purpose and have the same requirements as motions for
summary judgment filed with United States District Courts pursuant
to Rule 56 of the Federal Rules of Civil Procedure.
U.S. Equal Employment Opportunity Commission, 51 FLRA 248, 252-53
(1995) (citing Department of the Navy, U.S. Naval Ordnance Station,
Louisville, Kentucky, 33 FLRA 3, 4 (1988)), rev'd on other grounds, No.
88-1861 (D.C. Cir. Aug. 9, 1990) (unpublished). The requirements in
this section are comparable to Rule 56 of the Federal Rules of Civil
Procedure, as well as summary judgment procedures of other federal
agencies. Time limits are established to prevent the filing of summary
judgment motions from interfering with the overall post complaint
process. Also, the requirement that the motion be filed 15 days prior
to the hearing is consistent with the regulations of the EEOC (29 CFR
1614.109(e)).
Sections 2423.28-2423.29
These sections are reserved.
Subpart C--Hearing Procedures
Section 2423.30
This section regarding the general requirements for conduct of the
hearing consolidates and condenses various provisions of current
Secs. 2423.14, 2423.16, 2423.21, 2423.23, and 2423.24. Unnecessary
language is eliminated, particularly with regard to the relevant
procedures established in the Administrative Procedure Act (APA), 5
U.S.C. 554-557. Subsections (a) and (b) incorporate provisions of the
current regulations regarding an open hearing and conduct of the
hearing in accordance with the APA. Subsection (d) restates the current
objection regulation and eliminates antiquated and unclear language in
the current Sec. 2423.21(b), that
[a]utomatic exceptions will be allowed to all adverse rulings.
Under subsection (d), as under the current regulations (Sec. 2423.23)
objections not made before an Administrative Law Judge shall be deemed
waived. Subsections (c), (e), and (f) make no substantive changes from
the current regulations.
Section 2423.31
The current Secs. 2423.17 and 2423.19 are consolidated here. As
with Sec. 2423.30, this section eliminates superfluous language from
the current regulations without substantively changing the powers and
duties of the Administrative Law Judge at hearing. Rather than
delineating specific powers and duties, the revised regulation provides
general guidance regarding the Administrative Law Judge's authority at
the hearing. As in Sec. 2423.30, the powers of the Administrative Law
Judge set forth in the APA at 5 U.S.C. 556, 557, are controlling.
Subsection (c) is a new provision specifying that the Administrative
Law Judge may, under certain circumstances, issue bench decisions.
Settlement procedures to be utilized after the start of the hearing,
currently found in Sec. 2423.11, are set forth in subsection (d). This
settlement subsection retains the current practice with minor editorial
changes.
Section 2423.32
This section retains the requirement regarding the General
Counsel's burden of proof obligation, currently set forth in
Sec. 2423.18. A new provision specifies that the Respondent has the
burden of establishing any specific defenses to charges in the
complaint. This is in accord with established Authority precedent. See,
e.g., Internal Revenue Service (IRS), Washington, D.C. and IRS, Kansas
City Service Center, Kansas City, Missouri, 50 FLRA 661, 670 (1995)
(Respondent is required to identify specific anti-disclosure interests
to support defense that denial of information request is appropriate);
U.S. Department of Transportation, Federal Aviation Administration, New
York Tracon, Westbury, New York, 50 FLRA 338, 345 (1995) (Respondent
has burden of proving elements of Privacy Act defense); Letterkenny
Army Depot, 35 FLRA 113, 118 (1990) (Respondent has burden of rebutting
prima facie case of discrimination by a preponderance of the evidence).
Section 2423.33
This section parallels the current Sec. 2423.25.
Section 2423.34
This section, which addresses matters related to the Administrative
Law Judge's decision, incorporates the requirements set out in the
current Sec. 2423.26.
Sections 2423.35-2423.39
These sections are reserved.
Subpart D--Post-transmission and Exceptions to Authority Procedures
Section 2423.40
All matters related to exceptions, cross-exceptions, and
oppositions, which currently appear in Secs. 2423.26, 2423.27, and
2423.28, are consolidated here. In addition, this section requires that
each of these filings include a supporting brief meeting certain format
requirements. These changes are intended to assist the Authority in
evaluating arguments, accelerate the issuance of decisions, and improve
the quality and responsiveness of the Authority's decisions. This
section also increases the time that respondents have for filing
oppositions.
Section 2423.41
Consolidated into one section are matters related to action by the
Authority and compliance with decisions and orders of the Authority.
These matters appear in current Secs. 2423.29 and 2423.30. As with the
reorganizations made elsewhere in the proposed rules, this
consolidation is intended to facilitate the parties' understanding of
and compliance with the regulations. This section does not make
substantive changes to current regulations and practice.
[[Page 28381]]
Section 2423.42
This section simplifies current Sec. 2423.31, which sets forth the
procedures to be followed when compliance with a backpay order is at
issue. Current practice is continued with one exception--backpay
specifications by the Regional Director are no longer a required part
of the process. Instead, if the backpay amount is in question, the
Regional Director may issue a notice of hearing setting forth the
issues to be resolved without specification. The Respondent is
responsible for filing an answer to the notice of hearing. Thereafter,
the ULP hearing procedures are to be followed, with the Administrative
Law Judge ultimately determining the amount of backpay.
Sections 2423.43-2423.49
These sections are reserved.
Part 2429--Miscellaneous and General Requirements
Section 2429.1
This section is removed and reserved. The proposed Sec. 2423.26
covers this procedure.
Section 2429.7
The spelling of the term ``subpoena'' is changed throughout this
section to reflect the more commonly used and dictionary spelling of
the word. Other than this spelling change, subsections (a) and (b)
remain the same. Subsection (c) amends the current process wherein
requests for subpoenas in ULP proceedings are filed with the Regional
Director and provides instead that such subpoena requests shall be
filed with the Office of Administrative Law Judges. This revision is in
keeping with the goal of eliminating any perception of unfairness or
conflict of interest in ULP proceedings. Subsection (e) provides that
petitions to revoke a subpoena in the ULP process shall be filed with
the Administrative Law Judge. A change applying to all proceedings
before the Authority is that requests for subpoenas shall be granted if
the issuing authority finds that the testimony or documents are
material and relevant to the matters under consideration. The intent of
the regulations is to establish minimal requirements for the obtaining
of a subpoena. In the ULP process, such subpoenas would be issued, on
sufficient showing, by the Office of Administrative Law Judges.
Subsection (d) of the revised regulation also establishes that in all
proceedings, requests for subpoenas made less than 15 days prior to the
opening of the hearing shall be granted if sufficient explanation is
provided as to why the request was not timely filed. Subsection (e)
clarifies the requirements for revocation of subpoenas and describes
the presiding official's role in explaining the procedural or other
ground for the ruling. Subsection (e) also establishes a procedure for
the revocation of a subpoena if, on further review, the subpoena does
not appear appropriate. In the ULP process, subpoena revocation
determinations would be made by an Administrative Law Judge. Subsection
(f) changes the Federal Labor Relations Authority official responsible
for court enforcement of subpoenas in all Authority proceedings from
the General Counsel to the Solicitor of the Authority.
Section 2429.11
This section retains current language regarding interlocutory
appeals and also creates a procedure for filing and a standard for
reviewing interlocutory appeals in the ULP process. This new procedure
is consistent with both MSPB regulations (5 CFR 1201.91-93) and
interlocutory appeals procedure under federal practice (28 U.S.C.
1292(b)).
Section 2429.12
This section, addressing service on parties by Authority officials
in all proceedings, simplifies and facilitates service requirements in
several respects. Corresponding changes are made to other sections
addressing service by the parties (Secs. 2429.22 and 2429.27) and
filing with the Authority (Secs. 2429.21 and 2429.24). Subsection (a)
permits service of process by first-class rather than certified mail,
although service by certified mail is still permitted. The provision
permitting service by telegraph is deleted. In another change, service
by facsimile is permitted for certain procedural and other matters in
order to facilitate and expedite service where appropriate. However,
non-procedural determinations, such as recommended decisions of the
Administrative Law Judge or final decisions of the Authority, which are
likely to be lengthier and not as time-sensitive, will be served by
mail. Subsection (c) is revised to address the changes in subsection
(a); thus, proof of service is now accomplished by certificate of the
individual serving the papers. Date of service, when service is by
mail, remains the same. For facsimile service, the date of service is
the date of facsimile transmission.
Section 2429.13
This section is amended to eliminate the current provision that
necessary transportation and per diem expenses for witnesses are paid
by the employing activity or agency. The revision reflects current
practice in ULP proceedings.
Section 2429.14
The substance of subsection (a) is unchanged, although the language
is simplified and clarified. Subsection (b) is revised in accordance
with the changes regarding payment of witness fees explained in
Sec. 2429.13 above. Thus, witness fees, transportation, and per diem
expenses are paid by the party that calls the witness to testify.
Section 2429.21
No change is proposed to subsection (a) concerning computation of
time; however, comments are solicited concerning how it could be
clarified. Subsection (b) is changed to address the date of filing when
facsimile transmission is utilized and to clarify that if the filing is
by commercial delivery, it shall be considered filed on the date it is
received by the Authority.
Section 2429.22
This section is revised to permit service by facsimile
transmission.
Section 2429.24
Subsection (e) is amended to clarify that documents may be filed by
commercial delivery. The subsection also permits limited filing by
facsimile transmission and parallels the change in Sec. 2429.12(a). A
5-page limitation is placed on such filings to discourage extensive
filings by facsimile that would potentially overload facsimile
equipment capabilities and shift voluminous document reproduction
responsibility from the parties to the Authority office involved.
Section 2429.25
This section is amended to clarify that where filing by facsimile
transmission is permitted, one legible copy shall be a sufficient
submission. The requirement that the parties file an original plus four
copies of documents not served by facsimile transmission is retained.
The extra copies facilitate review by the various Authority officials
with whom the documents are filed.
Section 2429.27
Subsection (b) is amended to permit service by facsimile.
Subsection (d) now reflects the date of service when service is
effected by facsimile.
List of Subjects in 5 CFR Parts 2423 and 2429
Administrative practice and procedure, Government employees, Labor
management relations.
[[Page 28382]]
For the reasons set forth in the preamble, the Federal Labor
Relations Authority proposes to revise 5 CFR Part 2423 and to amend 5
CFR Part 2429 as follows:
1. Part 2423 is revised to read as follows:
PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS
Sec.
2423.1 Applicability of this part.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
2423.2 Informal proceedings.
2423.3 Who may file charges.
2423.4 Contents of the charge; supporting evidence and documents.
2423.5 Selection of the unfair labor practice procedure or the
negotiability procedure.
2423.6 Filing and service of copies.
2423.7 Investigation of charges.
2423.8 Amendment of charges.
2423.9 Action by the Regional Director.
2423.10 Determination not to issue complaint; review of action by
the Regional Director.
2423.11 Settlement prior to issuance of a complaint.
2423.12-2423.19 [Reserved]
Subpart B--Post Complaint, Prehearing Procedures
2423.20 Issuance and contents of the complaint; answer to the
complaint; amendments; role of Office of the Administrative Law
Judges.
2423.21 Motions procedure.
2423.22 Intervenors.
2423.23 Prehearing disclosure.
2423.24 Powers and duties of the Administrative Law Judge during
prehearing proceedings.
2423.25 Post Complaint, Prehearing Settlements.
2423.26 Stipulations of fact submissions.
2423.27 Summary judgment motions.
2423.28-2423.29 [Reserved]
Subpart C--Hearing Procedures
2423.30 General rules.
2423.31 Powers and duties of the Administrative Law Judge at the
hearing.
2423.32 Burden of proof before the Administrative Law Judge.
2423.33 Posthearing briefs.
2423.34 Decision and record.
2423.35-2423.39 [Reserved]
Subpart D--Post-transmission and Exceptions to Authority Procedures
2423.40 Exceptions; oppositions and cross-exceptions; waiver.
2423.41 Action by the Authority; compliance with Authority
decisions and orders.
2423.42 Backpay proceedings.
2423.43-2423.49 [Reserved]
Authority: 5 U.S.C. 7134.
Sec. 2423.1 Applicability of this part.
This part is applicable to any charge of alleged unfair labor
practices filed with the Authority on or after January 11, 1979.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
Sec. 2423.2 Informal proceedings.
(a) The purposes and policies of the Federal Service Labor-
Management Relations Statute can best be achieved by the cooperative
efforts of all persons covered by the program. To this end, it shall be
the policy of the Authority and the General Counsel to encourage all
persons alleging unfair labor practices and persons against whom such
allegations are made to meet and, in good faith, attempt to resolve
such matters prior to the filing of unfair labor practice charges with
the Authority.
(b) In furtherance of the policy referred to in paragraph (a) of
this section, and noting the six (6) month period of limitation set
forth in 5 U.S.C. 7118(a)(4), it shall be the policy of the Authority
and the General Counsel to encourage the informal resolution of unfair
labor practice allegations subsequent to the filing of a charge and
prior to the issuance of a complaint by the Regional Director.
(c) In order to afford the parties an opportunity to implement the
policy referred to in paragraphs (a) and (b) of this section, the
investigation of an unfair labor practice charge by the Regional
Director will normally not commence until the parties have been
afforded a reasonable amount of time, not to exceed 15 days from the
filing of the charge, during which period the parties are urged to
attempt to informally resolve the unfair labor practice allegation.
Sec. 2423.3 Who may file charges.
An activity, agency or labor organization may be charged by any
person with having engaged in or engaging in any unfair labor practice
prohibited under 5 U.S.C. 7116.
Sec. 2423.4 Contents of the charge; supporting evidence and documents.
(a) A charge alleging a violation of 5 U.S.C. 7116 shall be
submitted on forms prescribed by the Authority and shall contain the
following:
(1) The name, address and telephone number of the person(s) making
the charge;
(2) The name, address and telephone number of the activity, agency,
or labor organization against whom the charge is made;
(3) A clear and concise statement of the facts constituting the
alleged unfair labor practice, a statement of the section(s) and
subsection(s) of chapter 71 of title 5 of the United States Code
alleged to have been violated, and the date and place of occurrence of
the particular acts; and
(4) A statement of any other procedure invoked involving the
subject matter of the charge and the results, if any, including whether
the subject matter raised in the charge:
(i) Has been raised previously in a grievance procedure;
(ii) Has been referred to the Federal Service Impasses Panel, the
Federal Mediation and Conciliation Service, the Equal Employment
Opportunity Commission, the Merit Systems Protection Board or the
Special Counsel of the Merit Systems Protection Board for consideration
or action; or
(iii) Involves a negotiability issue raised by the charging party
in a petition pending before the Authority pursuant to Part 2424 of
this subchapter.
(b) Such charge shall be in writing and signed and shall contain a
declaration by the person signing the charge, under the penalties of
the Criminal Code (18 U.S.C. 1001), that its contents are true and
correct to the best of that person's knowledge and belief.
(c) When filing a charge, the charging party shall submit to the
Regional Director any supporting evidence and documents.
Sec. 2423.5 Selection of the unfair labor practice procedure or the
negotiability procedure.
Where a labor organization files an unfair labor practice charge
pursuant to this part which involves a negotiability issue, and the
labor organization also files pursuant to Part 2424 of this subchapter
a petition for review of the same negotiability issue, the Authority
and the General Counsel ordinarily will not process the unfair labor
practice charge and the petition for review simultaneously. Under such
circumstances, the labor organization must select under which procedure
to proceed. Upon selection of one procedure, further action under the
other procedure will ordinarily be suspended. Such selection must be
made regardless of whether the unfair labor practice charge or the
petition for review of a negotiability issue is filed first.
Notification of this selection must be made in writing at the time that
both procedures have been invoked, and must be served on the Authority,
the appropriate Regional Director and all parties to both the unfair
labor practice case and the negotiability case. Cases which solely
involve an agency's allegation that the duty to bargain in good faith
does not extend to the matter proposed to be bargained and which do not
involve actual or contemplated
[[Page 28383]]
changes in conditions of employment may only be filed under Part 2424
of this subchapter.
Sec. 2423.6 Filing and service of copies.
(a) An original and four (4) copies of the charge together with one
copy for each additional charged party named shall be filed with the
Regional Director for the region in which the alleged unfair labor
practice has occurred or is occurring. A charge alleging that an unfair
labor practice has occurred or is occurring in two or more regions may
be filed with the Regional Director for any such region.
(b) Upon the filing of a charge, the charging party shall be
responsible for the service of a copy of the charge (without the
supporting evidence and documents) upon the person(s) against whom the
charge is made, and for filing a written statement of such service with
the Regional Director. The Regional Director will, as a matter of
course, cause a copy of such charge to be served on the person(s)
against whom the charge is made, but shall not be deemed to assume
responsibility for such service.
(c) A charge will be deemed to be filed when it is received by the
appropriate Regional Director in accordance with the requirements in
paragraph (a) of this section.
Sec. 2423.7 Investigation of charges.
(a) The Regional Director, on behalf of the General Counsel, shall
conduct such investigation of the charge as the Regional Director deems
necessary. Consistent with the policy set forth in Sec. 2423.2, the
investigation will normally not commence until the parties have been
afforded a reasonable amount of time, not to exceed 15 days from the
filing of the charge, to informally resolve the unfair labor practice
allegation.
(b) During the course of the investigation all parties involved
will have an opportunity to present their evidence and views to the
Regional Director.
(c) In connection with the investigation of charges, all persons
are expected to cooperate fully with the Regional Director.
(d) The purposes and policies of the Federal Service Labor-
Management Relations Statute can best be achieved by the full
cooperation of all parties involved and the voluntary submission of all
potentially relevant information from all potential sources during the
course of the investigation. To this end, it shall be the policy of the
Authority and the General Counsel to protect the identity of
individuals and the substance of the statements and information they
submit or which is obtained during the investigation as a means of
assuring the Authority's and the General Counsel's continuing ability
to obtain all relevant information.
Sec. 2423.8 Amendment of charges.
Prior to the issuance of a complaint, the charging party may amend
the charge in accordance with the requirements set forth in
Sec. 2423.6.
Sec. 2423.9 Action by the Regional Director.
(a) The Regional Director shall take action which may consist of
the following, as appropriate:
(1) Approve a request to withdraw a charge;
(2) Refuse to issue a complaint;
(3) Approve a written settlement agreement in accordance with the
provisions of Part 2423;
(4) Issue a complaint; or
(5) Withdraw a complaint.
(b) Parties may request the General Counsel to seek appropriate
temporary relief (including a restraining order) under 5 U.S.C.
7123(d). The General Counsel will initiate and prosecute injunctive
proceedings under 5 U.S.C. 7123(d) only upon approval of the Authority.
A determination by the General Counsel not to seek approval of the
Authority for such temporary relief is final and may not be appealed to
the Authority.
(c) Upon a determination to issue a complaint, whenever it is
deemed advisable by the Authority to seek appropriate temporary relief
(including a restraining order) under 5 U.S.C. 7123(d), the Regional
Attorney or other designated agent of the Authority to whom the matter
has been referred will make application for appropriate temporary
relief (including a restraining order) in the district court of the
United States within which the unfair labor practice is alleged to have
occurred or in which the party sought to be enjoined resides or
transacts business. Such temporary relief will not be sought unless the
record establishes probable cause that an unfair labor practice is
being committed, or if such temporary relief will interfere with the
ability of the agency to carry out its essential functions.
(d) Whenever temporary relief has been obtained pursuant to 5
U.S.C. 7123(d) and thereafter the Administrative Law Judge hearing the
complaint, upon which the determination to seek such temporary relief
was predicated, recommends dismissal of such complaint, in whole or in
part, the Regional Attorney or other designated agent of the Authority
handling the case for the Authority shall inform the district court
which granted the temporary relief of the possible change in
circumstances arising out of the decision of the Administrative Law
Judge.
Sec. 2423.10 Determination not to issue complaint; review of action by
the Regional Director.
(a) If the Regional Director determines that the charge has not
been timely filed, that the charge fails to state an unfair labor
practice, or for other appropriate reasons, the Regional Director may
request the charging party to withdraw the charge, and in the absence
of such withdrawal within a reasonable time, decline to issue a
complaint.
(b) If the Regional Director determines not to issue a complaint on
a charge which is not withdrawn, the Regional Director shall provide
the parties with a written statement of the reasons for not issuing a
complaint.
(c) The charging party may obtain a 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. The appeal shall contain a complete statement
setting forth the facts and reasons upon which it is based. A copy of
the appeal shall also be filed with the Regional Director. In addition,
the charging party should notify all other parties of the fact that an
appeal has been taken, but any failure to give such notice shall not
affect the validity of the appeal.
(d) A request for extension of time to file an appeal shall be in
writing and received by the General Counsel not later than 5 days
before the date the appeal is due. The charging party should notify the
Regional Director and all other parties that it has requested an
extension of time in which to file an appeal, but any failure to give
such notice shall not affect the validity of its request for an
extension of time to file an appeal.
(e) The General Counsel may sustain the Regional Director's refusal
to issue or re-issue a complaint, stating the grounds of affirmance, or
may direct the Regional Director to take further action. The General
Counsel's decision shall be served on all the parties. The decision of
the General Counsel shall be final.
Sec. 2423.11 Settlement prior to issuance of a complaint.
(a) Prior to the issuance of any complaint or the taking of other
formal action, the Regional Director will afford the Charging Party and
the Respondent
[[Page 28384]]
a reasonable period of time in which to enter into an informal
settlement agreement to be approved by the Regional Director. Upon
approval by the Regional Director and compliance with the terms of the
informal settlement agreement, no further action shall be taken in the
case. If the Respondent fails to perform its obligations under the
informal settlement agreement, the Regional Director may determine to
institute further proceedings.
(b) In the event that the Charging Party fails or refuses to become
a party to an informal settlement agreement offered by the Respondent,
if the Regional Director concludes that the offered settlement will
effectuate the policies of the Federal Service Labor-Management
Relations Statute, the Regional Director shall enter into the agreement
with the Respondent and shall decline to issue a complaint. The
Charging Party may obtain a review of the Regional Director's action by
filing an appeal with the General Counsel in accordance with
Sec. 2423.10(c). The General Counsel shall take action on such appeal
as set forth in Sec. 2423.10(e).
Secs. 2423.12-2423.19 [Reserved]
Subpart B--Post Complaint, Prehearing Procedures
Sec. 2423.20 Issuance and contents of the complaint; answer to the
complaint; amendments; role of Office of Administrative Law Judges.
(a) Complaint. Whenever formal proceedings are deemed necessary,
the Regional Director shall file and serve, in accordance with
Sec. 2429.12 of this Subchapter, a complaint with the Office of
Administrative Law Judges. The decision to issue a complaint shall not
be subject to review. Any complaint may be withdrawn by the Regional
Director prior to the hearing. The complaint shall set forth:
(1) Notice of the charge;
(2) The basis for jurisdiction;
(3) The facts alleged to constitute an unfair labor practice;
(4) The particular sections of 5 U.S.C., chapter 71 and the rules
and regulations involved;
(5) The relief sought;
(6) Notice of the date, time, and place that a hearing will take
place before an Administrative Law Judge; and
(7) A brief statement explaining the nature of the hearing.
(b) Answer. Within 20 days after the date of service of the
complaint, the Respondent shall file and serve, in accordance with Part
2429 of this Subchapter, an answer with the Office of Administrative
Law Judges. The answer shall admit, deny, or explain each allegation of
the complaint. If the Respondent has no knowledge of an allegation or
insufficient information as to its truthfulness, the answer shall so
state. Absent a showing of good cause to the contrary, failure to file
an answer or respond to any allegation shall constitute an admission.
Motions to extend the filing deadline shall be filed in accordance with
Sec. 2423.21.
(c) Amendments. The Regional Director may amend the complaint at
any time before the answer is filed. The Respondent then has 20 days
from the date of service of the amended complaint to file an answer
with the Office of Administrative Law Judges. The answer may be amended
by the Respondent within 20 days after the answer is filed. Thereafter,
any requests to amend the complaint or answer must be made by motion to
the Office of Administrative Law Judges.
(d) Office of Administrative Law Judges. Pleadings, motions,
conferences, hearings, and other matters throughout as specified in
Subparts B, C, and D shall be administered by the Office of
Administrative Law Judges. The Chief Administrative Law Judge, or any
Administrative Law Judge designated by the Chief Administrative Law
Judge, shall administer any matters properly submitted to the Office of
Administrative Law Judges. Throughout subparts B, C, and D of this
part, ``Administrative Law Judge'' refers to the Chief Administrative
Law Judge or his or her designee.
Sec. 2423.21 Motions procedure.
(a) General requirements. All motions, except those made during a
prehearing conference or hearing, shall be in writing. Motions for an
extension of time, postponement of a hearing, or any other procedural
ruling shall include a statement of the position of the other parties
on the motion. All written motions and responses shall satisfy the
filing and service requirements of part 2429 of this subchapter.
(b) Motions made to the Administrative Law Judge. Prehearing
motions and motions made at the hearing shall be filed with the
Administrative Law Judge. Unless otherwise specified in Subparts B or C
of this part, or otherwise directed or approved by the Administrative
Law Judge, prehearing motions shall be filed at least 15 days prior to
the hearing, and responses to both prehearing motions and motions made
at the hearing shall be filed within 5 days after the date of service
of the motion. Posthearing motions shall be filed within 15 days after
the date the hearing closes, and responses shall be filed within 5 days
after the date of service of the motion. Motions to correct the
transcript shall be filed with the Administrative Law Judge.
(c) Post-transmission motions. After the case has been transmitted
to the Authority, motions shall be filed with the Authority.
(d) Interlocutory appeals. Motions for an interlocutory appeal of
any ruling and responses shall be filed in accordance with this section
and Sec. 2429.11 of this subchapter.
Sec. 2423.22 Intervenors.
Motions for permission to intervene and responses shall be filed in
accordance with Sec. 2423.21. Such motions shall be granted upon a
showing that the outcome of the proceeding is likely to directly affect
the movant's rights or duties. Intervenors may participate only: on the
issues determined by the Administrative Law Judge to affect them; and
to the extent permitted by the Judge. Denial of such motions may be
appealed pursuant to Sec. 2423.21(d).
Sec. 2423.23 Prehearing disclosure.
Unless otherwise directed or approved by the Judge, the parties
shall exchange the following items at least 21 days prior to the
hearing:
(a) Proposed witness lists, including a brief synopsis of the
expected testimony of each witness;
(b) Copies of documents, with an index, to be offered into
evidence; and
(c) A brief statement of the theory of the case, including any and
all defenses to the charges, and citations to any precedent relied
upon.
Sec. 2423.24 Powers and duties of the Administrative Law Judge during
prehearing proceedings.
(a) Prehearing procedures. The Administrative Law Judge shall
regulate the course and scheduling of prehearing matters, including
prehearing orders, conferences, disclosure, motions, and subpoena
requests.
(b) Changing date, time, or place of hearing. After issuance of the
complaint or any prehearing order, the Administrative Law Judge may,
upon his or her own motion or proper cause shown by any party through
the motions procedure in Sec. 2423.21, change the date, time, or place
of the hearing.
(c) Prehearing order. (1)The Administrative Law Judge may issue a
prehearing order confirming or changing:
(i) The date, time, or place of the hearing;
(ii) The schedule for prehearing disclosure of witness lists and
[[Page 28385]]
documents intended to be offered into evidence at the hearing;
(iii) The date for submission of procedural and substantive
motions;
(iv) The date, time, and place of the prehearing conference; and
(v) Any other matter pertaining to prehearing or hearing
procedures.
(2) The prehearing order shall be served in accordance with
Sec. 2429.12 of this Subchapter.
(d) Prehearing conferences. The Administrative Law Judge shall
conduct one or more prehearing conferences, either by telephone or in
person, at least 7 days prior to the hearing date, unless the
Administrative Law Judge determines that a prehearing conference would
serve no purpose and no party has moved for a prehearing conference in
accordance with Sec. 2423.21. If a prehearing conference is held, all
parties must participate and be prepared to discuss, narrow, and
resolve the issues set forth in the complaint and answer. The
Administrative Law Judge may either prepare and file for the record a
written summary of actions taken at the conference or direct a party to
do so. Summaries of the conference shall be served on all parties in
accordance with Sec. 2429.12 of this Subchapter.The following matters
may also be considered at the prehearing conference:
(1) Settlement of the case, either by the Judge conducting the
prehearing conference or pursuant to Sec. 2423.25;
(2) Admissions of fact, disclosure of contents and authenticity of
documents, and stipulations of fact;
(3) Objections to the introduction of evidence at the hearing,
including oral or written testimony, documents, papers, exhibits, or
other submissions proposed by a party;
(4) Subpoena requests;
(5) Any matters subject to official notice;
(6) Outstanding motions; or
(7) Any other matter that may expedite the hearing or aid in the
disposition of the case.
(e) Sanctions. The Administrative Law Judge may impose sanctions
upon the parties as necessary and appropriate under the circumstances.
Such authority includes, but is not limited to, the power to:
(1) Prohibit a party who fails to comply with any requirement of
Subpart B or C of this part from, as appropriate, introducing evidence,
calling witnesses, or raising objections to the introduction of
evidence or testimony of witnesses at the hearing.
(2) Refuse to consider any submission that is not filed in
compliance with Subparts B or C of this part.
Sec. 2423.25 Post Complaint, Prehearing Settlements.
(a) Informal and formal settlements. Post complaint settlements may
be either informal or formal.
(1) Informal settlement agreements provide for withdrawal of the
complaint by the Regional Director and are not subject to approval by
or an order of the Authority. If the Respondent fails to perform its
obligations under the informal settlement agreement, the Regional
Director may re-institute formal proceedings consistent with this
Subpart.
(2) Formal settlement agreements are subject to approval by the
Authority, and include the parties' agreement to waive their right to a
hearing and acknowledgment that the Authority may issue an order
requiring the Respondent to take action appropriate to the terms of the
settlement. The formal settlement agreement shall also contain the
Respondent's consent to the Authority's application for the entry of a
decree by an appropriate federal court enforcing the Authority's order.
(b) Informal settlement procedure. If the Charging Party and the
Respondent enter into an informal settlement agreement that is accepted
by the Regional Director, the Regional Director shall withdraw the
complaint and approve the informal settlement agreement. If the
Charging Party fails or refuses to become a party to an informal
settlement agreement offered by the Respondent, and the Regional
Director concludes that the offered settlement will effectuate the
policies of the Federal Service Labor-Management Relations Statute, the
Regional Director shall enter into the agreement with the Respondent
and shall withdraw the complaint. The Charging Party then may obtain a
review of the Regional Director's action by filing an appeal with the
General Counsel as provided in subpart A of this part.
(c) Formal settlement procedure. If the Charging Party and the
Respondent enter into a formal settlement agreement that is accepted by
the Regional Director, the Regional Director shall withdraw the
complaint upon approval of the formal settlement agreement by the
Authority. If the Charging Party fails or refuses to become a party to
a formal settlement agreement offered by the Respondent, and the
Regional Director concludes that the offered settlement will effectuate
the policies of the Federal Service Labor-Management Relations Statute,
the agreement shall be between the Respondent and the Regional
Director. The formal settlement agreement together with the Charging
Party's objections, if any, shall be submitted to the Authority for
approval. The Authority may approve a formal settlement agreement upon
a sufficient showing that it will effectuate the policies of the
Federal Service Labor-Management Relations Statute.
(d) Settlement judge program. The Administrative Law Judge, on his
or her own motion, or upon the request of any party, may assign a judge
or other appropriate official, who shall be other than the hearing
judge unless otherwise mutually agreed to by the parties, to conduct
negotiations for informal settlements.
(1) The settlement official shall convene and preside over
settlement conferences by telephone or in person.
(2) The settlement official may require that the representative for
each party be present at settlement conferences and that the parties or
agents with full settlement authority be present or available by
telephone.
(3) All discussions between the parties and the settlement official
shall be confidential. The settlement official shall not discuss any
aspect of the case with the hearing judge, and no evidence regarding
statements, conduct, offers of settlement, and concessions of the
parties made in proceedings before the settlement official shall be
admissible in any proceeding before the Administrative Law Judge or
Authority, except by stipulation of the parties.
Sec. 2423.26 Stipulations of fact submissions.
(a) General. In any unfair labor practice case under this
Subchapter, upon agreement of all parties that no material issue of
fact exists, the parties may jointly submit a motion to the
Administrative Law Judge or Authority requesting consideration of the
matter based upon stipulations of fact.
(b) Stipulations to the Administrative Law Judge. Where the
stipulation adequately addresses the appropriate material facts, the
Administrative Law Judge may grant the motion and decide the case
through stipulation.
(c) Stipulations to the Authority. Where the stipulation adequately
addresses the appropriate material facts and a decision by the
Administrative Law Judge would not assist in the resolution of the
case, the Authority may grant the motion and decide the case through
stipulation.
Sec. 2423.27 Summary judgment motions.
(a) Any party may move, no later than 15 days prior to the
scheduled hearing, for a summary judgment in its favor upon any of the
issues pleaded. The motion shall demonstrate that there is no genuine
issue of material fact and that the moving party is entitled to a
[[Page 28386]]
judgment as a matter of law. Such motions shall be supported by
documents, affidavits, applicable precedent, or other appropriate
materials.
(b) Responses must be filed within 10 days after the date of
service of the motion. Responses may not rest upon mere allegations or
denials but must show, by documents, affidavits, applicable precedent,
or other appropriate materials, that there is a genuine issue to be
determined at the hearing.
(c) If all issues are decided by summary judgment, no hearing will
be held and the Administrative Law Judge shall prepare a decision in
accordance with Sec. 2423.34. If summary judgment is denied, or if
partial summary judgment is granted, the Administrative Law Judge shall
issue an opinion and order, subject to interlocutory appeal as provided
in Sec. 2429.11 of this subchapter, and the hearing shall proceed as
necessary.
Secs. 2423.28-2423.29 [Reserved]
Subpart C--Hearing Procedures
Sec. 2423.30 General rules.
(a) Open hearing. The hearing shall be open to the public unless
otherwise ordered by the Administrative Law Judge.
(b) Administrative Procedure Act. The hearing shall, to the extent
practicable, be conducted in accordance with the Administrative
Procedure Act, 5 U.S.C. 554-557.
(c) Rights of parties. A party shall have the right to appear at
any hearing in person, by counsel, or by other representative; to
examine and cross-examine witnesses; to introduce into the record
documentary or other relevant evidence; and to submit rebuttal
evidence, except that the participation of any party shall be limited
to the extent prescribed by the Administrative Law Judge.
(d) Objections. Objections are oral or written complaints
concerning the conduct of a hearing. Any objection not raised to the
Administrative Law Judge shall be deemed waived.
(e) Oral argument. Any party shall be entitled, upon request, to a
reasonable period prior to the close of the hearing for oral argument,
which shall be included in the official transcript of the hearing.
(f) Official transcript. An official reporter shall make the only
official transcript of such proceedings. Copies of the transcript may
be examined in the appropriate Regional Office during normal working
hours. Parties desiring a copy of the transcript shall make
arrangements for a copy with the official hearing reporter.
Sec. 2423.31 Powers and duties of the Administrative Law Judge at the
hearing.
(a) Conduct of hearing. The Administrative Law Judge shall conduct
the hearing in a fair, impartial, and judicial manner, taking action as
needed to avoid unnecessary delay and maintain order during the
proceedings. The Administrative Law Judge may take any action necessary
to schedule, conduct, continue, control, and regulate the hearing,
including ruling on motions and taking official notice of material
facts when appropriate. No provision of these regulations shall be
construed to limit the powers of the Administrative Law Judge provided
by the Administrative Procedure Act, 5 U.S.C. 556, 557.
(b) Evidence. The Administrative Law Judge shall receive evidence
and inquire fully into the relevant and material facts concerning the
matters that are the subject of the hearing. The Administrative Law
Judge may exclude any evidence which is immaterial, irrelevant, unduly
repetitious, or customarily privileged. Rules of evidence shall not be
strictly followed.
(c) Bench decisions. The Administrative Law Judge may, upon mutual
agreement of and motion by the parties, issue a decision orally at the
close of the hearing when the nature of the case and the public
interest warrant. If the motion is granted, the parties waive their
right to file posthearing briefs and exceptions to the Authority. If
the decision is announced orally, a copy thereof, excerpted from the
transcript or recording, shall be furnished to the parties in
accordance with Sec. 2429.12 of this subchapter. Irrespective of the
date such copy is served, the issuance date of the decision shall be
the date the certified record, as corrected, and any Order, is served.
(d) Settlements after the opening of the hearing. As set forth in
Sec. 2423.25(a), settlements may be either informal or formal.
(1) Informal settlement procedure: Judge's approval of withdrawal.
If the Charging Party and the Respondent enter into an informal
settlement agreement that is accepted by the Regional Director, the
Regional Director may request the Administrative Law Judge for
permission to withdraw the complaint and, having been granted such
permission, shall withdraw the complaint and approve the informal
settlement between the Charging Party and Respondent. If the Charging
Party fails or refuses to become a party to an informal settlement
agreement offered by the Respondent, and the Regional Director
concludes that the offered settlement will effectuate the policies of
the Federal Service Labor-Management Relations Statute, the Regional
Director shall enter into the agreement with the Respondent and shall,
if granted permission by the Administrative Law Judge, withdraw the
complaint. The Charging Party then may obtain a review of the Regional
Director's decision as provided in subpart A of this part.
(2) Formal settlement procedure: Judge's approval of settlement. If
the Charging Party and the Respondent enter into a formal settlement
agreement that is accepted by the Regional Director, the Regional
Director may request the Administrative Law Judge to approve such
formal settlement agreement, and upon such approval, to transmit the
agreement to the Authority for approval. If the Charging Party fails or
refuses to become a party to a formal settlement agreement offered by
the Respondent, and the Regional Director concludes that the offered
settlement will effectuate the policies of the Federal Service Labor-
Management Relations Statute, the agreement shall be between the
Respondent and the Regional Director. After the Charging Party is given
an opportunity to state on the record or in writing the reasons for
opposing the formal settlement, the Regional Director may request the
Administrative Law Judge to approve such formal settlement agreement,
and upon such approval, to transmit the agreement to the Authority for
approval.
Sec. 2423.32 Burden of proof before the Administrative Law Judge.
The General Counsel shall present the evidence in support of the
complaint and have the burden of proving the allegations of the
complaint by a preponderance of the evidence. The Respondent shall have
the burden of establishing any specific defenses that it raises to the
charges in the complaint.
Sec. 2423.33 Posthearing briefs.
Posthearing briefs may be filed with the Administrative Law Judge
within a time period set by the Judge, not to exceed 30 days from the
close of the hearing, unless otherwise directed by the judge, and shall
satisfy the filing and service requirements of part 2429 of this
subchapter. Reply briefs shall not be filed absent permission of the
Judge. Motions to extend the filing deadline or for permission to file
a reply brief shall be filed in accordance with Sec. 2423.21.
[[Page 28387]]
Sec. 2423.34 Decision and record.
(a) Except when bench decisions are issued pursuant to
Sec. 2423.31(c), the Administrative Law Judge shall prepare a written
decision expeditiously in every case. All written decisions shall be
served in accordance with Sec. 2429.12 of this subchapter. The decision
shall set forth:
(1) A statement of the issues;
(2) Relevant findings of fact;
(3) Conclusions of law and reasons therefor;
(4) Credibility determinations as necessary; and
(5) A recommended disposition or order.
(b) The Judge shall transmit the decision and record to the
Authority. The record shall include the charge, complaint, service
sheet, answer, motions, rulings, orders, stipulations, objections,
depositions, interrogatories, exhibits, documentary evidence, official
transcript of the hearing, briefs, and any other filings or submissions
made by the parties.
Secs. 2423.35-2423.39 [Reserved]
Subpart D--Post-transmission and Exceptions to Authority Procedures
Sec. 2423.40 Exceptions; oppositions and cross-exceptions; waiver.
(a) Exceptions. Exceptions may be filed with the Authority within
25 days after the date of service of the Judge's decision. Exceptions
and supporting briefs shall satisfy the filing and service requirements
of part 2429 of this subchapter.
(1) Exceptions shall state: the specific findings, conclusions,
determinations, rulings, or recommendations being challenged; the
grounds relied upon; and the relief sought.
(2) Exceptions shall include a supporting brief. The brief shall
set forth in this order: all relevant facts; the issues to be
addressed; and a separate argument for each issue. Statements of fact
shall include specific citations to the record, and arguments shall be
supported by specific citations to legal authority. Attachments to
briefs shall be separately paginated and indexed as necessary. Briefs
containing 20 or more pages shall include a table of contents and a
table of legal authorities cited.
(b) Oppositions and cross-exceptions. Unless otherwise directed or
approved by the Authority, oppositions to exceptions and/or cross-
exceptions may be filed with the Authority within 20 days after the
date of service of the exceptions. Oppositions shall state the specific
exceptions being opposed. Oppositions and cross-exceptions shall be
subject to the same requirements as exceptions set out in paragraph (a)
of this section.
(c) Waiver. Any exception not specifically urged shall be deemed to
have been waived.
Sec. 2423.41 Action by the Authority; compliance with Authority
decisions and orders.
(a) In the absence of the filing of exceptions within the time
limits established in Sec. 2423.40, the findings, conclusions, and
recommendations in the decision of the Administrative Law Judge shall,
without precedential significance, become the findings, conclusions,
decision and order of the Authority, and all objections and exceptions
to the rulings and decision of the Administrative Law Judge shall be
deemed waived for all purposes. Failure to comply with any filing
requirement established in Sec. 2423.40 may result in the information
furnished being disregarded.
(b) Whenever exceptions are filed in accordance with Sec. 2423.40,
the Authority shall issue a decision affirming or reversing, in whole
or in part, the decision of the Administrative Law Judge or disposing
of the matter as is otherwise deemed appropriate.
(c) Upon finding a violation, the Authority shall, in accordance
with 5 U.S.C. 7118(a)(7), issue an order directing the violator, as
appropriate, to cease and desist from any unfair labor practice, or to
take any other action to effectuate the purposes of the Federal Service
Labor-Management Relations Statute.
(d) Upon finding no violation, the Authority shall dismiss the
complaint.
(e) After the Authority issues an order, the Respondent shall,
within the time specified in the order, provide to the appropriate
Regional Director a report regarding what compliance actions have been
taken. Upon determining that the Respondent has not complied with the
Authority's order, the Regional Director shall refer the case to the
Authority for enforcement or take other appropriate action.
Sec. 2423.42 Backpay proceedings.
After the entry of an Authority order directing payment of backpay,
or the entry of a court decree enforcing such order, if it appears to
the Regional Director that a controversy exists between the Authority
and a Respondent regarding backpay that cannot be resolved without a
formal proceeding, the Regional Director may issue and serve on all
parties a notice of hearing before an Administrative Law Judge to
determine the backpay amount. The notice of hearing shall set forth the
specific backpay issues to be resolved. The Respondent shall, within 20
days after the service of a notice of hearing, file an answer in
accordance with Sec. 2423.20. After the issuance of a notice of
hearing, the procedures provided in subparts B, C, and D of this part
shall be followed as applicable.
Secs. 2423.43-2423.49 [Reserved]
PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS
2. The authority citation for Part 2429 continues to read as
follows:
Authority: 5 U.S.C. 7134.
3. Section 2429.1 is removed and reserved, and reads as follows:
Sec. 2429.1 [Removed and reserved]
4. Section 2429.7 is amended by revising the heading, removing the
word ``subpena'' and substituting ``subpoena'' throughout the section
and by revising paragraphs (c) through (f) to read as follows:
Sec. 2429.7 Subpoenas.
* * * * *
(c) A request for a subpoena by any person, as defined in 5 U.S.C.
7103(a)(1), shall be in writing and filed with the Regional Director,
in proceedings arising under part 2422 of this Subchapter, with the
Office of Administrative Law Judges in proceedings arising under
subparts B and C of part 2423 of this subchapter, or with the
Authority, in proceedings arising under parts 2424 and 2425 of this
subchapter, not less than 15 days prior to the opening of a hearing, or
with the appropriate presiding official(s) during the hearing.
(d) All requests shall name and identify the witnesses or documents
sought and state the reasons therefor. The Authority, General Counsel,
Office of Administrative Law Judges, Regional Director, Hearing
Officer, or any other employee of the Authority designated by the
Authority, as appropriate, shall grant timely requests upon the
determination that the testimony or documents appear to be material and
relevant to the matters under investigation and the request describes
with sufficient particularity the documents sought. Requests for
subpoenas made less than 15 days prior to the opening of the hearing
shall be granted on sufficient explanation of why the request was not
timely filed. Service of an approved subpoena is the responsibility of
the party on whose behalf the subpoena was issued. The
[[Page 28388]]
subpoena shall show on its face the name and address of the party on
whose behalf the subpoena was issued.
(e)(1) Any person served with a subpoena who does not intend to
comply, shall, within 5 days after the date of service of the subpoena
upon such person, petition in writing to revoke the subpoena. A copy of
any petition to revoke a subpoena shall be served on the party on whose
behalf the subpoena was issued. Such petition to revoke, if made prior
to the hearing, and a written statement of service, shall be filed with
the Regional Director in proceedings arising under part 2422 of this
subchapter, with the Administrative Law Judge in proceedings arising
under part 2423 of this subchapter, and with the Authority, in
proceedings arising under parts 2424 and 2425 of this subchapter for
ruling. A petition to revoke a subpoena filed during the hearing, and a
written statement of service, shall be filed with the appropriate
presiding official(s).
(2) The Authority, General Counsel, Administrative Law Judge,
Regional Director, Hearing Officer, or any other employee of the
Authority designated by the Authority, as appropriate, shall revoke the
subpoena if, on further review, the person or evidence, the production
of which is required, is not material and relevant to the matters under
investigation or in question in the proceedings, or the subpoena does
not describe with sufficient particularity the evidence the production
of which is required, or if for any other reason sufficient in law the
subpoena is invalid. The Authority, General Counsel, Administrative Law
Judge, Regional Director, Hearing Officer, or any other employee of the
Authority designated by the Authority, as appropriate, shall state the
procedural or other ground for the ruling on the petition to revoke.
The petition to revoke, any answer thereto, and any ruling thereon
shall not become part of the official record except upon the request of
the party aggrieved by the ruling.
(f) Upon the failure of any person to comply with a subpoena issued
and upon the request of the party on whose behalf the subpoena was
issued, the Solicitor of the Authority shall institute proceedings on
behalf of such party in the appropriate district court for the
enforcement thereof, unless to do so would be inconsistent with law and
the Federal Service Labor-Management Relations Statute.
5. Section 2429.11 is revised to read as follows:
Sec. 2429.11 Interlocutory Appeals.
(a) Except as set forth in paragraphs (b), (c), and (d), of this
section, the Authority and the General Counsel ordinarily will not
consider interlocutory appeals.
(b) In an unfair labor practice proceeding under Part 2423 of this
Subchapter, motions for an interlocutory appeal shall be filed in
writing with the Administrative Law Judge within 5 days after the date
of the contested ruling. The motion shall state why interlocutory
review is appropriate, and why the Authority should modify or reverse
the contested ruling.
(c) The Judge shall grant the motion and certify the contested
ruling to the Authority if:
(1) The ruling involves an important question of law or policy
about which there is substantial ground for difference of opinion; and
(2) Immediate review will materially advance completion of the
proceeding, or the denial of immediate review will cause undue harm to
a party or the public.
(d) If the motion is granted, the Judge or Authority may stay the
hearing during the pendency of the appeal. If the motion is denied,
exceptions to the contested ruling may be filed in accordance with
Sec. 2423.40 of this Subchapter after the Judge issues a decision and
recommended order in the case.
6. Section 2429.12 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 2429.12 Service of process and papers by the Authority.
(a) Methods of service. Notices of hearings, decisions and orders
of Regional Directors, decisions and recommended orders of
Administrative Law Judges, decisions of the Authority, complaints,
written rulings on motions, and all other papers required by this
Subchapter to be issued by the Authority, the General Counsel, Regional
Directors, Hearing Officers, and Administrative Law Judges, shall be
served personally, by first-class mail, or by certified mail. Provided,
however: Where facsimile equipment is available, rulings on motions;
information pertaining to prehearing disclosure, conferences, orders,
or hearing dates, times, and locations; information pertaining to
Sec. 2429.7; and other similar matters may be served by facsimile
transmission.
* * * * *
(c) Proof of service. Proof of service shall be verified by
certificate of the individual serving the papers describing the manner
of such service. When service is by mail, the date of service shall be
the day when the matter served is deposited in the United States mail.
When service is by facsimile, the date of service shall be the date the
facsimile transmission is transmitted and, when necessary, verified by
a dated facsimile record of transmission.
7. Section 2429.13 is revised to read as follows:
Sec. 2429.13 Official time for witnesses.
If the participation of any employee in any phase of any proceeding
before the Authority, including the investigation of unfair labor
practice charges and representation petitions and the participation in
hearings and representation elections, is deemed necessary by the
Authority, the General Counsel, any Administrative Law Judge, Regional
Director, Hearing Officer, or other agent of the Authority designated
by the Authority, the employee shall be granted official time for such
participation, including necessary travel time, as occurs during the
employee's regular work hours and when the employee would otherwise be
in a work or paid leave status.
8. Section 2429.14 is revised to read as follows:
Sec. 2429.14 Witness fees.
(a) Witnesses, whether appearing voluntarily or pursuant to a
subpoena, shall be paid the fee and mileage allowances which are paid
subpoenaed witnesses in the courts of the United States. However, any
witness who is employed by the Federal Government shall not be entitled
to receive witness fees.
(b) Witness fees, as appropriate, as well as transportation and per
diem expenses for a witness shall be paid by the party that calls the
witness to testify.
9. Section 2429.21 is amended by revising paragraph (b) to read as
follows:
Sec. 2429.21 Computation of time for filing papers.
* * * * *
(b) Except when filing an unfair labor practice charge pursuant to
part 2423 of this subchapter, a representation petition pursuant to
part 2422 of this subchapter, and a request for an extension of time
pursuant to Sec. 2429.23(a) of this part, when this Subchapter requires
the filing of any paper with the Authority, the General Counsel, a
Regional Director, or an Administrative Law Judge, the date of filing
shall be determined by the date of mailing indicated by the postmark
date or the date a facsimile is transmitted. If no postmark date is
evident on the mailing, it shall be presumed to have
[[Page 28389]]
been mailed 5 days prior to receipt. If the date of facsimile
transmission is unclear, the date of transmission shall be the date the
facsimile transmission is received. If the filing is by personal or
commercial delivery, it shall be considered filed on the date it is
received by the Authority or the officer or agent designated to receive
such materials.
* * * * *
10. Section 2429.22 is revised to read as follows:
Sec. 2429.22 Additional time after service by mail or facsimile.
Except as to the filing of an application for review of a Regional
Director's Decision and Order under Sec. 2422.31 of this subchapter,
whenever a party has the right or is required to do some act pursuant
to this Subchapter within a prescribed period after service of a notice
or other paper upon such party, and the notice or paper is served on
such party by mail or by facsimile transmission, 5 days shall be added
to the prescribed period: Provided, however, that 5 days shall not be
added in any instance where an extension of time has been granted.
11. Section 2429.24 is amended by revising paragraph (e) to read as
follows:
Sec. 2429.24 Place and method of filing; acknowledgment.
* * * * *
(e) All documents filed pursuant to this section shall be filed in
person, by commercial delivery, by first-class mail, or by certified
mail. Provided, however, that where facsimile equipment is available,
motions; information pertaining to prehearing disclosure, conferences,
orders, or hearing dates, times, and locations; information pertaining
to Sec. 2429.7; and other similar matters may be filed by facsimile
transmission, provided that the document filed does not exceed 5 pages
in total length.
* * * * *
12. Section 2429.25 is revised to read as follows:
Sec. 2429.25 Number of copies and paper size.
Unless otherwise provided by the Authority or the General Counsel,
or their designated representatives, as appropriate, or under this
Subchapter, and with the exception of any prescribed forms, any
document or paper filed with the Authority, General Counsel,
Administrative Law Judge, Regional Director, or Hearing Officer, as
appropriate, under this Subchapter, together with any enclosure filed
therewith, shall be submitted on 8\1/2\ x 11 inch size paper in an
original and four (4) legible copies. Where facsimile filing is
permitted pursuant to Sec. 2924.24(e), one (1) legible copy, capable of
reproduction, shall be sufficient. A clean copy capable of being used
as an original for purposes such as further reproduction may be
substituted for the original.
13. Section 2429.27 is amended by revising paragraphs (b) and (d)
to read as follows:
Sec. 2429.27 Service; statement of service.
* * * * *
(b) Service of any document or paper under this Subchapter, by any
party, including documents and papers served by one party on another,
shall be accomplished by certified mail, first-class mail, or in
person. Where facsimile equipment is available, service by facsimile of
documents described in Sec. 2429.24(e) is permissible.
* * * * *
(d) The date of service or date served shall be the day when the
matter served is deposited in the U.S. mail, delivered in person, or,
in the case of facsimile transmissions, the date of transmission.
Dated: May 20, 1997.
Solly Thomas,
Executive Director, Federal Labor Relations Authority.
[FR Doc. 97-13661 Filed 5-22-97; 8:45 am]
BILLING CODE 6727-01-P
