[Federal Register Volume 62, Number 147 (Thursday, July 31, 1997)]
[Rules and Regulations]
[Pages 40911-40924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20244]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules
and Regulations
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FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Parts 2423 and 2429
Unfair Labor Practice Proceedings: Miscellaneous and General
Requirements
AGENCY: Federal Labor Relations Authority.
ACTION: Final rule.
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SUMMARY: The Federal Labor Relations Authority amends portions of its
regulations regarding unfair labor practice (ULP) proceedings (Part
2423) and miscellaneous and general requirements (Part 2429). The
amendments are designed to streamline the existing regulations,
facilitate dispute resolution, clarify the matters to be adjudicated,
provide more flexibility to the participants in the ULP process,
simplify the filing and service requirements, and promote confidence in
ULP proceedings. Implementation of these changes enhances the ULP
process, by raising the level of advocacy and assisting in the
adjudication and resolution of ULP claims.
EFFECTIVE DATE: October 1, 1997.
ADDRESSES: Written comments received are available for public
inspection during normal business hours at the Office of Case Control,
Federal Labor Relations Authority, 607 14th Street, NW., Washington, DC
20424-0001.
FOR FURTHER INFORMATION CONTACT: Peter Constantine, Office of Case
Control, at the address listed above or by telephone # (202) 482-6540.
SUPPLEMENTARY INFORMATION:
Background
The Federal Labor Relations Authority proposed revisions to Part
2423 of its regulations addressing unfair labor practice (``ULP'')
proceedings, as well as to related miscellaneous and general
requirements located at Part 2429 of its regulations. The proposed rule
was published in the Federal Register and public comment was solicited
on the proposed changes (62 FR 28378) (May 23, 1997). Prior to
proposing the rule, the Federal Labor Relations Authority established a
task force to evaluate the policies and procedures concerning the
processing of an unfair labor practice complaint. The task force
conducted focus groups and invited the public to submit written
recommendations on ways to improve the post complaint ULP process (60
FR 11057) (Mar. 1, 1995).
Concurrent with issuing the proposed rule, the Authority invited
comment on the proposed rule in two ways: by convening focus group
meetings, in June 1997 in Chicago, IL and in Washington, DC, and by
offering the public an opportunity to submit written comments. All
comments, whether expressed orally in a focus group or submitted in
writing, have been considered prior to publishing the final rule,
although all comments are not specifically addressed in the section-by-
section analysis, below. Revisions to the proposed rule are driven for
the most part by suggestions and comments received from the public.
One commenter stated that in order to ensure that serious
consideration was afforded to suggested revisions, the regulations
should not be finalized until a lengthy time period after the close of
the comment period. The process of revising the Authority's ULP
regulations has been anything but precipitous. On the contrary,
publication of the final rule marks the culmination of years of careful
consideration of how to better the ULP process. The Authority has
afforded full consideration to the advice offered by commenters. The
improvements these essential and needed changes bring to the ULP
process should be implemented without further delay.
Those commenters who suggested changes to subpart A of part 2423
are reminded that it will be revised during 1998. As a result, comments
concerning subpart A (Filing, Investigating, Resolving, and Acting on
Charges) will not be addressed at this time.
Sectional Analyses
Sectional analyses of the amendments and revisions to Part 2423--
Unfair Labor Practice Proceedings and Part 2429--Miscellaneous and
General Requirements are as follows:
Part 2423--Unfair Labor Practice Proceedings
Section 2423.1--Final rule is amended to reflect the October 1,
1997 effective date of subparts B, C, and D of this part.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
Sections 2423.2-2423.11--Final rule as promulgated is the same as
proposed rule.
Sections 2423.12-2423.19--These sections are reserved.
Subpart B--Post Complaint, Prehearing Procedures
Section 2423.20--Numerous commenters responded favorably to the
transfer of various functions from the Regional Director to the Office
of the Administrative Law Judge reflected in this and subsequent
sections. Commenters acknowledged that this transfer promoted
confidence in the system by properly recognizing the distinctions
between prosecutorial and adjudicatory responsibilities.
One proposed change, having both support and opposition, was the
proposal in paragraph (a) that the complaint specifically set out the
``relief sought.'' Those in favor of this change believed that this
requirement would clarify issues and notify the charged parties of what
was being requested of them. Those opposed contended that such a
pleading requirement could hinder settlement and might be interpreted
as placing a ceiling upon the remedy that ultimately could be awarded
in the case. It was suggested that this pleading requirement would lead
to complaints listing every conceivable remedy or, alternatively,
multiple amendments of the complaint. Suggesters recommended a less
onerous pleading requirement, such as requiring the pleading of only
non-traditional remedies, in order to avoid ``locking'' the parties
into positions that would jeopardize settlement discussions.
In addressing these concerns, the final regulation eliminates the
requirement to plead the remedy sought in the complaint, but instead
requires disclosing the relief sought prior to the hearing pursuant to
Sec. 2423.23. This modification was made in order to effectuate the
underlying goal of
[[Page 40912]]
providing notice and clarification to the respondent, while, at the
same time, allowing the parties the freedom to pursue resolution of the
complaint without having established positions concerning the remedy
desired.
It was suggested that ``affirmative defenses'' be made a part of
the respondent's answer. Along these lines, one commenter suggested an
amendment that any affirmative defenses not raised in the answer would
be waived. On the other hand, one commenter indicated that even a ``no
comment'' answer from a respondent should be an acceptable reply, at
least until the General Counsel had proven his or her case. The final
regulation remains unchanged, in this regard, from the proposed rule,
requiring only that the respondent either admit, deny or explain
allegations contained in the complaint. In seeking to balance the
respective interests, the final rule treats the respondent's obligation
to set out affirmative defenses in the same way that it addresses the
General Counsel's obligation to describe the relief sought. As a
result, at the prehearing disclosure stage, governed by Sec. 2423.23,
the respondent will be required to set forth any and all defenses. The
regulation thus should serve the underlying goal of putting the parties
on notice as to what the defenses are, without requiring more than is
necessary in the answer itself. As the previous paragraph indicates,
the interests of all parties are served by having the remedies and
defenses set forth at the prehearing stage.
One commenter suggested that the Authority include a sentence in
paragraphs (a) and (b) regarding the service and filing requirements.
As stated in the proposed rule and unchanged in the final rule, all
pleadings are subject to the filing and service requirements of part
2429 of the subchapter.
One commenter noted that in unusual circumstances, a hearing might
begin less than 20 days after service of the complaint. In such cases,
under the regulation as proposed, the answer would not have been filed
and served prior to the beginning of the hearing. Paragraphs (b) and
(c) have been revised to respond to this contingency and provide that
the answer, and any amendments to the answer, must be filed and served,
in any event, prior to the beginning of the hearing.
Paragraph (d) has been changed to note that the terms
``Administrative Law Judge'' and ``Judge'' are synonymous for the
purposes of subparts B, C, and D.
Section 2423.21--Commenters favored the filing of motions with the
Judge rather than with the Regional Director, as was required under the
prior regulations. In response to commenters' concerns regarding the
prehearing time deadlines set forth in the proposed rules (for
prehearing disclosure, motions, and subpoenas), time deadlines are
changed throughout the final rule. The final rule changes the time for
filing of motions from 15 days before or after the specified event to
10 days. For prehearing motions, this 10-day prior to hearing deadline
retains the same number of days as the current rule (5 CFR 2423.22(a)).
The time for responses is unchanged. It is also noteworthy that the
Judge has the authority to vary the timeliness provisions governing the
filing of motions as necessary to meet the needs of a given case.
One commenter wanted to verify that all motions, including motions
for summary judgment, are subject to filing and service requirements of
part 2429. To ensure that this is understood, the last sentence of
paragraph (a) has been clarified.
Paragraph (b) of this section has been subdivided into four parts
in order to accommodate suggestions of commenters. As a result, the
final regulation clarifies that responses to motions made during the
hearing shall be made prior to the close of hearing, unless otherwise
directed by the Judge, and that motions to correct the transcript shall
be filed within 10 days of receiving the transcript, rather than within
15 days of hearing. Subsection (c) also now states that responses to
motions filed with the Authority shall be filed within 5 days after
service of the motion.
The reference to Sec. 2429.11 in paragraph (d) has been changed to
Sec. 2423.31(c) as a result of the relocation of the unfair labor
practice interlocutory appeals procedures to part 2423.
Section 2423.22--Final rule as promulgated is the same as proposed
rule.
Section 2423.23--Most commenters favored early disclosure of
information prior to hearing, believing that such an exchange would
facilitate an early resolution of cases and avert ``trial by ambush.''
One commenter disagreed, stating that early exchange of information
would not lead to earlier resolution via settlements; was unnecessary
because the parties already generally know what evidence and arguments
others in the case will offer; and would require extensive prehearing
preparation far in advance of the date of hearing. Having carefully
considered these opinions, the Authority continues to view prehearing
disclosure as an important device that will facilitate dispute
resolution and clarify the matters to be adjudicated. The parties are
more likely to resolve disputes earlier in the ULP process if they are
obliged to focus on their own and their opponents' evidence and theory
of the case in advance of the hearing. By settling earlier, the
Authority, the parties, and the witnesses avoid expending resources by
preparing for and traveling to trials that are averted by settlement on
the courthouse steps. On the other hand, if the dispute is not settled,
early prehearing disclosure will enable the parties to knowledgeably
and more efficiently prepare their cases without having to guess what
evidence or theories others in the litigation will offer.
As noted in the comment to Sec. 2423.21, several commenters
suggested that the time deadlines in the proposed regulations should be
modified. With regard to the number of days prior to the hearing that
information is disclosed, although some favored the proposed 21 days,
others asserted that 21 days was insufficient, and still others stated
that 21 days was too far in advance of the hearing. One commenter
suggested that disclosure should be 7 days prior to the prehearing
conference. Suggestions to lengthen the time have been rejected because
such a change would unduly increase the time prior to the hearing
during which the parties would have to devote resources to case
preparation. However, recommendations to truncate the period between
disclosure and the hearing have been adopted.
The final rule changes the prescribed disclosure period from 21 to
14 days. Changing the time to 14 days will still allow for timely
illumination of strategy concerning other prehearing activities, e.g.,
subpoenas or motions, as those time deadlines also have been adjusted
based upon the change in the time for information disclosure. The 14-
day deadline should also allay some commenters' concerns regarding
prehearing administrative burdens and the potential that information
will be unnecessarily prepared and exchanged in cases that may well be
resolved before hearing.
As noted earlier in commentary concerning Sec. 2423.21, if 14 days
is not deemed an appropriate time to exchange information in a given
case, a party may move the Judge, pursuant to Sec. 2423.24(c)(1)(ii),
to change the disclosure date or any other prehearing dates where
appropriate. The final regulation has only established 14 days as the
time period that will be controlling absent the changing of the time
line by the Judge.
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In response to queries about the meaning of the term ``shall
exchange,'' the final regulations indicate that parties shall serve the
documents on any other party in accordance with Sec. 2429.27(b). This
should clarify both acceptable methods of exchange and the fact that
all parties--the General Counsel, the Respondent, and the Charging
Party--are required to disclose and be served. With respect to such
information, several commenters suggested that the Judge be served
along with the parties, and that copies served on the Judge be made
exhibits at hearing. The final regulation declines to provide for
service to the Judge for the reason that disclosure is intended to put
the parties on notice and not to create a record of the information
exchanged in disclosure. The Judge will thus not need to review the
information exchanged unless there is a dispute over disclosure, which
would normally be handled at the prehearing conference, pursuant to
Sec. 2423.24(d).
As prompted by suggestions, the language relating to disclosure of
documents has been modified to reflect that it only includes documents
proposed to be offered into evidence. Thus, the requirement for
document disclosure in paragraph (b) mirrors the requirement for
witness disclosure in paragraph (a) in that both now refer to
disclosing proposed lists of both witnesses and documents.
One commenter questioned the meaning of the requirement to disclose
``synopsis of testimony,'' suggesting that this phrase could be
subjected to different interpretations, e.g., the facts about which the
witness would testify, a summary of the testimony the witness would
offer, or the allegation(s) in the complaint the witness would address.
The first two examples would satisfy the ``synopsis of testimony''
requirement, but the third would be insufficient because it would not
disclose the substance of the expected testimony.
One commenter suggested that in addition to the synopsis of
testimony, a witness's prehearing statements should also be exchanged
prior to the hearing. The final regulation declines to adopt, at this
time, this suggested addition to the disclosure requirement; instead,
until this matter is fully litigated, the Authority will maintain the
rule presently in effect governing release of prehearing statements.
Under long-settled current law, and pursuant to the Jencks Rule (Jencks
v. United States, 353 U.S. 657 (1957)), a written statement previously
obtained prior to the hearing is disclosable for the purpose of cross-
examination after the witness has testified. Department of Treasury,
Internal Revenue Service, Memphis Service Center, 16 FLRA 687 (1984).
Of course, under the final rule, if parties have taken a statement from
a witness and intend to introduce the written statement itself into
evidence, such a statement will have to be disclosed in advance of the
hearing pursuant to paragraph (b).
Some commenters recommended that the regulations specify the
consequences for failing to comply with disclosure requirements. The
final rule does not adopt this suggestion, but instead reserves to the
Judge's discretion the power to impose sanctions in appropriate cases.
Offering the Judge such discretion answers the concern of one commenter
that sanctions would too often be levied against unsophisticated
parties. The expectation is that the Judge will exercise prudence,
consider all relevant factors, and impose appropriate sanctions when
parties fail to act in good faith in meeting their respective
prehearing disclosure obligations.
Finally, in response to suggestions, three changes have been made
to paragraph (c). First, and as noted earlier, the final rule adds the
relief sought to the information that must be disclosed 14 days prior
to the hearing. Second, the word ``charges'' has been replaced with the
more appropriate phrase ``allegations in the complaint.'' Third,
several commenters noted that the requirement to disclose citations
relied upon in support of a theory of the case or a defense is overly
broad and could be interpreted to prevent a party from relying on a
case precedent at a later stage in the litigation if the case was not
exchanged in disclosure. The final regulation has been modified to
delete the requirement that parties list citations to precedent.
Section 2423.24--Language has been added into paragraphs (b), (c),
and (e) to reflect that the changing of hearing date or place, the
issuing of a prehearing order, and imposition of sanctions may be
ordered either by the Judge in his or her discretion, or on the motion
of a party.
The final rule does not accept the recommendation of a commenter
that paragraph (b) of the regulation recognize the authority of the
Regional Director to order a change in the date, time, or place of the
hearing when directed by the Judge. Any orders making such changes must
be issued by the Judge.
Commenters generally, with one exception, favored prehearing
conferences; one commenter suggested requiring prehearing conferences
in every case. The Authority has concluded that at this time it is not
necessary to mandate a prehearing conference in every case. As a
result, the final rule in paragraph (d) retains the procedure that was
proposed, with the Judge scheduling and conducting a conference at
least 7 days before the hearing unless the Judge determines that a
conference is not necessary and no party has moved for a prehearing
conference. This process for the holding of prehearing conferences will
be monitored; if it proves unwieldy, it will be altered. Many
commenters objected to the Judge having the authority to assign one of
the parties to draft a summary of the prehearing conference. This
objection has been accommodated in the final regulations; thus, when a
summary of a conference is necessary, it will be prepared and filed in
the record by the Judge. In response to a commenter's suggestion,
paragraph (d)(4) has been broadened to clarify that petitions to revoke
subpoenas are a matter that may be considered at a prehearing
conference.
Several commenters suggested that the Judge's sanction authority
should be more expressly regulated. As noted in the commentary
concerning Sec. 2423.23, the final rule on sanctions does not establish
specific penalties and procedures, opting instead to leave these
matters to the discretion of the Judge. However, paragraph (e) has been
clarified to reflect that an important purpose of sanctions is to
ensure that a party's failing to comply with subpart B or C is not
condoned. Also, in paragraph (e)(1), theories of violation, specific
relief, and specific defenses have been included among the examples of
items that a party may be precluded from pursuing if that party has
failed to satisfy prehearing obligations.
Section 2423.25--One commenter suggested that implementation of an
informal settlement be stayed pending the appeal by a charging party
who objected to the settlement between the Regional Director and the
respondent. Since this is already the practice under the current
regulation, which has not been substantively altered by the proposed
rule change, it does not appear necessary that stays be regulated by
the final rule.
The settlement judge program, set out in paragraph (d), was
favored, with commenters believing it will increase chances of
settlement and reduce unnecessary litigation expense. Three suggestions
have been incorporated in the final rule. First, the word ``informal''
has been stricken from the last sentence in the introductory paragraph,
thus permitting a settlement official to conduct negotiations for any
type of settlement. Second, the final rule has
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been modified to clarify that information derived from settlement
discussions will be inadmissible rather than confidential; thus, the
final rule does not preclude the parties from discussing settlement.
Third, the proposed paragraph (3), as modified, has been subdivided
into two separate paragraphs.
Section 2423.26--Responding to a concern that motions for
stipulations will add an additional step and time to the process, the
final rule provides that such motions will be ruled upon expeditiously.
The final rule also notes that individual briefs are required and must
be filed within 30 days of the filing of the joint motion.
In response to suggestions, the final rule clarifies when
stipulations to the Authority will be permitted. One commenter
suggested that stipulations to the Authority be permitted when a United
States Court of Appeals has already ruled on the legal issue in the
case. It might well be that a motion to stipulate would be granted in
such a case; however, it is not clear that a recommended decision of
the Judge would be of no assistance in the resolution of every case
falling into this category--especially if the Authority had not had an
opportunity to consider the court's decision. Instead, the final rule
permits stipulations when an adequate basis for application of
established precedent exists. The final rule also provides the
Authority discretion to grant the motion to stipulate in unusual
circumstances.
Lastly, and also in response to comment, paragraph (d) has been
added to the section noting that once a motion to stipulate has been
granted, the Authority will adjudicate the case based upon the
information in the stipulation and the briefs. It is anticipated that
this provision will enable the Authority to avoid remanding cases to
the parties for additions to the stipulation.
Section 2423.27--Most comments noted that codification of the
summary judgment procedures should promote judicial economy.
As noted earlier, motions for summary judgment, like all written
motions, are subject to the requirements of Sec. 2423.21. In keeping
with the time deadline changes in that section, the time for filing
motions for summary judgment has changed from 15 days to 10 days prior
to the hearing. In order to ensure that summary judgment motions do not
interfere with the overall post complaint process, responses to motions
for summary judgment must be filed within 5 days after the date of
service of the motion instead of 10 days after service.
In response to a concern that such motions must, in every case, be
filed at least 10 days prior to hearing, the final rule permits, with
the approval of the Judge, motions for summary judgment to be filed
less than 10 days in advance of the hearing. One commenter suggested
that a party moving for summary judgment shortly in advance of a
hearing be required to move for a postponement of the hearing so that
those opposing the summary judgment motion would not be overloaded with
the dual obligations of responding to the motion and preparing for
trial. Although this suggestion has not been adopted, it is noted that
any party, whether a movant for or an opponent of a summary judgment,
may move the Judge to postpone the hearing pending a ruling on the
motion for summary judgment.
The reference to Sec. 2429.11 in paragraph (c) has been changed to
Sec. 2423.31(c) as a result of the relocation of the unfair labor
practice interlocutory appeals procedures to part 2423.
Section 2423.28--Based upon one commenter's suggestion and in
furtherance of unifying the rules governing the ULP process and ease of
reference, the procedures governing subpoenas in an unfair labor
practice proceeding have been moved from Sec. 2429.7 to this section of
the final rule. This section has been modeled after the revised
Sec. 2429.7 governing subpoena procedures in other FLRA proceedings.
Also, the time for requesting subpoenas has been adjusted to
correspond with other prehearing disclosure deadlines, as discussed in
the commentary concerning Secs. 2423.21 and 2423.23. Thus, subpoena
requests must be made not less than 10 days prior to the hearing,
instead of the 15 days in the proposed regulations.
With regard to the subpoena process, many commenters suggested that
subpoenas be issued ministerially with a minimum of involvement by the
Judge in the issuance. The final rule addresses this concern in
paragraph (c) by providing that subpoena requests filed with the Office
of Administrative Law Judges will be automatically issued on an ex
parte basis. The requesting party will be responsible for completion of
the subpoena form and service of the subpoena. This change should avoid
delays in issuing subpoenas and eliminate the potential problems of a
Judge having to revisit a previous decision to issue a subpoena when a
petition to revoke is filed.
In response to concerns about service, language has been added
defining proper ``service'' for the subpoena. In the final rule, the
process for service of a subpoena is different from the general service
provisions of part 2429, in that registered or certified mail or
personal delivery is required.
Section 2423.29--This section is reserved.
Subpart C--Hearing Procedures
Section 2423.30--Paragraph (b) has been edited for clarity in the
final rule.
Section 2423.31--The final sentence in paragraph (a) has been
edited for clarity in the final rule.
One commenter suggested that the last sentence in paragraph (b)
could be interpreted as precluding a Judge from following the rules of
evidence. This is neither the meaning nor intent of the sentence. The
last sentence in paragraph (b) should be read in context of the entire
paragraph. As such, the rules of evidence are a guide, but do not
strictly govern the proceeding.
The final rule moves procedures governing interlocutory appeals
from Sec. 2429.11 to paragraph (c) of this section. This reorganization
has been accomplished for the same reasons referenced in the commentary
to the newly established Sec. 2423.28, i.e., unifying unfair labor
practice rules and ease of reference. Although provisions governing
interlocutory appeals have been located in subpart C, which governs
hearing procedures, these procedures would be equally applicable if a
party were to challenge a prehearing determination of the Judge.
Substantively, one commenter suggested that the regulation require
that the hearing be stayed while the certified interlocutory appeal is
before the Authority. The final rule does not mandate such a stay,
leaving this matter to the discretion of the Judge or the Authority.
This flexibility would, in appropriate circumstances, allow segregable
portions of a hearing to continue while an interlocutory appeal
proceeded.
Voluminous commentary was received on the issue of bench decisions.
While commenters appreciated the availability of such an option, most
objected to the requirement that parties waive their rights to file
exceptions and to obtain other forms of review. These concerns should
be alleviated by the modifications contained in the final rule which is
now denominated as paragraph (d) of this section. Under the final rule,
all of the parties may jointly move the Judge to issue an oral bench
decision at the close of the hearing. In filing such a motion, the
parties waive their rights to file a posthearing brief to the Judge. If
the Judge, relying on judicial discretion, grants the joint motion, the
Judge will
[[Page 40915]]
render an oral decision which shall satisfy the requirements of
Sec. 2423.34(a)(1)-(5). Subsequent to the hearing, the Judge's oral
decision will be transcribed. This transcription, together with any
supplementary matter the Judge deems necessary, will be the written
recommended decision which the Judge shall transmit to the Authority
and serve on the parties. Exceptions to this recommended decision will
be permitted. In response to queries about the relevance of ``the
public interest'' to this process, the final rule has deleted this
phrase.
The last paragraph in the section, formerly denominated as (d), has
been redesignated as (e) in the final rule.
Section 2423.32--Comment was received noting that the proposed
rule's requirement that the respondent have the burden of establishing
defenses would cause confusion and controversy. One commenter noted
that the respondent's burden varies depending upon the type of case and
is not subject to a generic requirement. It was also pointed out that a
respondent's burden is often a ``burden of going forward'' rather than
a ``burden of proof.'' Noting these comments, and recognizing that the
General Counsel has and retains the burden of proof in all cases, the
final rule clarifies that the respondent shall have the burden of
proving any ``affirmative'' defenses that it raises. Use of this more
specific term serves to remind the respondent of its burden concerning
certain defenses that it chooses to raise. This language is not
intended to impose any additional burden on respondents; rather, it
notifies respondents of their burden which is established in the case
law.
Section 2423.33--The final rule is modified to account for waiver
of the right to file posthearing briefs when bench decisions are
issued, pursuant to Sec. 2423.31(d).
Section 2423.34--In response to suggestions, summaries of
prehearing conferences, as well as the basis for any ruling on
sanctions, are specifically made part of the record, in order to
document these matters and to allow the parties to except to any matter
involving the prehearing conference or sanctions.
Sections 2423.35-2423.39--These sections are reserved.
Subpart D--Post-transmission and Exceptions to Authority Procedures
Section 2423.40--The final rule clarifies in paragraph (a), that a
single document containing both exceptions to the Judge's decision and
a brief in support of those exceptions, is contemplated. The final rule
also expressly explains how separate arguments for each issue raised
are to be set forth in the exceptions. The page limitation triggering
the table of contents and legal authorities requirement has been raised
from 20 to 25 pages. Parties should note that pursuant to
Sec. 2429.24(e) and Sec. 2429.25, standard font sizes (12 point) and
margins (1 inch) will be required.
The section heading and paragraph (b) have been altered to clarify
the time within which to file oppositions to cross-exceptions.
Commenters approved of the increased time--20 days--to file oppositions
to exceptions as a valuable change.
Paragraph (c) has been added clarifying that reply briefs are not
allowed, absent permission of the Authority.
Sections 2423.41-2423.42--Final rule as promulgated is the same as
proposed rule.
Sections 2423.43-2423.49--These sections are reserved.
Part 2429--Miscellaneous and General Requirements
Section 2429.1--This section is removed and reserved.
Section 2429.7--As noted earlier, a separate section addressing
subpoena process in ULP cases has been established in part 2423,
Sec. 2423.28. This section establishes subpoena processes for other
Authority proceedings, pursuant to parts 2422, 2424, and 2425 and
generally follows the procedures established for the issuance and
revocation of subpoenas in ULP cases. The only significant difference
between this section and the rules established in Sec. 2423.28 involves
the official who is authorized to issue and is revoke subpoenas.
Section 2429.11--As noted earlier, the procedures governing
interlocutory appeals in unfair labor practice cases have been moved to
Sec. 2423.31(c). The final rule notes that such appeals will ordinarily
not be considered, except as set forth in part 2423.
Section 2429.12--Almost all commenters endorsed the liberalization
of service requirements allowing for first class mail and facsimile
transmissions. The final rule adopts the proposed rule's service
requirements.
In response to a suggestion, the final rule expands the list of
documents that must be served to include amended complaints and
withdrawals of complaints and amends the list of those who are required
to serve to include the Regional Director when not acting as a party
under part 2423. The reference in the proposed regulation to
Sec. 2429.7 has been changed in the final rule to subpoenas, as a
result of subpoena sections appearing in both parts 2429 and 2423.
Also, the final rule has been revised to provide for the
Authority's service by facsimile of time sensitive matters.
Section 2429.13--Final rule as promulgated is the same as proposed
rule.
Section 2429.14--Final rule as promulgated is the same as proposed
rule.
Section 2429.21--Final rule as promulgated is the same as proposed
rule.
Section 2429.22--Commenters noted that when service is by
facsimile, there is no reason to add 5 additional days to periods
within which a party must act, as is done in the case of service by
mail. The final regulation adopts this suggestion and has been modified
to delete facsimile filing from this section.
Section 2429.24--As previously noted, parties uniformly and
overwhelmingly supported the change allowing for filing by facsimile.
In response to several requests, the 5-page limitation on facsimile
filings with the Authority has been increased in the final rule to 10
pages. However, piecemeal filing is not permitted, as the 10-page limit
applies to the entire individual document. This limit, however, will be
strictly enforced and standard font sizes (12 point) and margins (1
inch) will be required.
Clarification was sought as to the term ``other similar matters''
with respect to documents appropriate for facsimile submissions. The
final rule lists a number of items that may be filed by facsimile; with
these examples offered in the regulation, further definition of this
phrase is not considered feasible or prudent at this time. As in
Sec. 2429.12, the reference in the proposed regulation to Sec. 2429.7
has been changed in the final rule to subpoenas, as a result of
subpoena sections appearing in both parts 2429 and 2423.
Section 2429.25--The final rule includes one minor change to
clarify that standard font sizes and margins will be required in all
filings with the Authority.
Section 2429.27--Three minor changes have been incorporated into
the final rule: First, in paragraph (b), the modifier of the word party
has been changed from ``another'' to ``any other,'' thus clarifying
that all parties, including the charging party, must be served; second,
in paragraph (d), commercial delivery has been included as a method of
service; and third, also in paragraph (d), the phrase ``date of
transmission'' has been changed to ``date transmitted.''
[[Page 40916]]
List of Subjects
5 CFR Part 2423
Administrative practice and procedure, Government employees, Labor-
management relations.
5 CFR Part 2429
Administrative practice and procedure, Government employees, Labor-
management relations.
For the reasons set forth in the preamble, the Federal Labor
Relations Authority amends parts 2423 and 2429 of its regulations as
follows:
1. Part 2423 is revised to read as follows:
PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS
Sec.
2423.1 Applicability of this part.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
2423.2 Informal proceedings.
2423.3 Who may file charges.
2423.4 Contents of the charge; supporting evidence and documents.
2423.5 Selection of the unfair labor practice procedure or the
negotiability procedure.
2423.6 Filing and service of copies.
2423.7 Investigation of charges.
2423.8 Amendment of charges.
2423.9 Action by the Regional Director.
2423.10 Determination not to issue complaint; review of action by
the Regional Director.
2423.11 Settlement prior to issuance of a complaint.
2423.12-2423.19 [Reserved]
Subpart B--Post Complaint, Prehearing Procedures
2423.20 Issuance and contents of the complaint; answer to the
complaint; amendments; role of Office of the Administrative Law
Judges.
2423.21 Motions procedure.
2423.22 Intervenors.
2423.23 Prehearing disclosure.
2423.24 Powers and duties of the Administrative Law Judge during
prehearing proceedings.
2423.25 Post complaint, prehearing settlements.
2423.26 Stipulations of fact submissions.
2423.27 Summary judgment motions.
2423.28 Subpoenas.
2423.29 [Reserved]
Subpart C--Hearing Procedures.
2423.30 General rules.
2423.31 Powers and duties of the Administrative Law Judge at the
hearing.
2423.32 Burden of proof before the Administrative Law Judge.
2423.33 Posthearing briefs.
2423.34 Decision and record.
2423.35-2423.39 [Reserved]
Subpart D--Post-Transmission and Exceptions to Authority Procedures
2423.40 Exceptions; oppositions and cross-exceptions; oppositions
to cross-exceptions; waiver.
2423.41 Action by the Authority; compliance with Authority
decisions and orders.
2423.42 Backpay proceedings.
2423.43-2423.49 [Reserved]
Authority: 5 U.S.C. 7134.
Sec. 2423.1 Applicability of this part.
This part is applicable to any charge of alleged unfair labor
practices filed with the Authority on or after January 11, 1979, and
any complaint filed on or after October 1, 1997.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
Sec. 2423.2 Informal proceedings.
(a) The purposes and policies of the Federal Service Labor-
Management Relations Statute can best be achieved by the cooperative
efforts of all persons covered by the program. To this end, it shall be
the policy of the Authority and the General Counsel to encourage all
persons alleging unfair labor practices and persons against whom such
allegations are made to meet and, in good faith, attempt to resolve
such matters prior to the filing of unfair labor practice charges with
the Authority.
(b) In furtherance of the policy referred to in paragraph (a) of
this section, and noting the six (6) month period of limitation set
forth in 5 U.S.C. 7118(a)(4), it shall be the policy of the Authority
and the General Counsel to encourage the informal resolution of unfair
labor practice allegations subsequent to the filing of a charge and
prior to the issuance of a complaint by the Regional Director.
(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
paragraph(s) of chapter 71 of title 5 of the United States Code alleged
to have been violated, and the date and place of occurrence of the
particular acts; and
(4) A statement of any other procedure invoked involving the
subject matter of the charge and the results, if any, including whether
the subject matter raised in the charge:
(i) has been raised previously in a grievance procedure;
(ii) has been referred to the Federal Service Impasses Panel, the
Federal Mediation and Conciliation Service, the Equal Employment
Opportunity Commission, the Merit Systems Protection Board or the
Special Counsel of the Merit Systems Protection Board for consideration
or action; or
(iii) involves a negotiability issue raised by the charging party
in a petition pending before the Authority pursuant to part 2424 of
this subchapter.
(b) Such charge shall be in writing and signed and shall contain a
declaration by the person signing the charge, under the penalties of
the Criminal Code (18 U.S.C. 1001), that its contents are true and
correct to the best of that person's knowledge and belief.
(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
[[Page 40917]]
procedure, further action under the other procedure will ordinarily be
suspended. Such selection must be made regardless of whether the unfair
labor practice charge or the petition for review of a negotiability
issue is filed first. Notification of this selection must be made in
writing at the time that both procedures have been invoked, and must be
served on the Authority, the appropriate Regional Director and all
parties to both the unfair labor practice case and the negotiability
case. Cases which solely involve an agency's allegation that the duty
to bargain in good faith does not extend to the matter proposed to be
bargained and which do not involve actual or contemplated changes in
conditions of employment may only be filed under part 2424 of this
subchapter.
Sec. 2423.6 Filing and service of copies.
(a) An original and four (4) copies of the charge together with one
copy for each additional charged party named shall be filed with the
Regional Director for the region in which the alleged unfair labor
practice has occurred or is occurring. A charge alleging that an unfair
labor practice has occurred or is occurring in two or more regions may
be filed with the Regional Director for any such region.
(b) Upon the filing of a charge, the charging party shall be
responsible for the service of a copy of the charge (without the
supporting evidence and documents) upon the person(s) against whom the
charge is made, and for filing a written statement of such service with
the Regional Director. The Regional Director will, as a matter of
course, cause a copy of such charge to be served on the person(s)
against whom the charge is made, but shall not be deemed to assume
responsibility for such service.
(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
[[Page 40918]]
notice shall not affect the validity of its request for an extension of
time to file an appeal.
(e) The General Counsel may sustain the Regional Director's refusal
to issue or re-issue a complaint, stating the grounds of affirmance, or
may direct the Regional Director to take further action. The General
Counsel's decision shall be served on all the parties. The decision of
the General Counsel shall be final.
Sec. 2423.11 Settlement prior to issuance of a complaint.
(a) Prior to the issuance of any complaint or the taking of other
formal action, the Regional Director will afford the Charging Party and
the Respondent a reasonable period of time in which to enter into an
informal settlement agreement to be approved by the Regional Director.
Upon approval by the Regional Director and compliance with the terms of
the informal settlement agreement, no further action shall be taken in
the case. If the Respondent fails to perform its obligations under the
informal settlement agreement, the Regional Director may determine to
institute further proceedings.
(b) In the event that the Charging Party fails or refuses to become
a party to an informal settlement agreement offered by the Respondent,
if the Regional Director concludes that the offered settlement will
effectuate the policies of the Federal Service Labor-Management
Relations Statute, the Regional Director shall enter into the agreement
with the Respondent and shall decline to issue a complaint. The
Charging Party may obtain a review of the Regional Director's action by
filing an appeal with the General Counsel in accordance with
Sec. 2423.10(c). The General Counsel shall take action on such appeal
as set forth in Sec. 2423.10(e).
Secs. 2423.12-2423.19 [Reserved]
Subpart B--Post Complaint, Prehearing Procedures
Sec. 2423.20 Issuance and contents of the complaint; answer to the
complaint; amendments; role of Office of Administrative Law Judges.
(a) Complaint. Whenever formal proceedings are deemed necessary,
the Regional Director shall file and serve, in accordance with
Sec. 2429.12 of this subchapter, a complaint with the Office of
Administrative Law Judges. The decision to issue a complaint shall not
be subject to review. Any complaint may be withdrawn by the Regional
Director prior to the hearing. The complaint shall set forth:
(1) Notice of the charge;
(2) The basis for jurisdiction;
(3) The facts alleged to constitute an unfair labor practice;
(4) The particular sections of 5 U.S.C., chapter 71 and the rules
and regulations involved;
(5) Notice of the date, time, and place that a hearing will take
place before an Administrative Law Judge; and
(6) A brief statement explaining the nature of the hearing.
(b) Answer. Within 20 days after the date of service of the
complaint, but in any event, prior to the beginning of the hearing, the
Respondent shall file and serve, in accordance with part 2429 of this
subchapter, an answer with the Office of Administrative Law Judges. The
answer shall admit, deny, or explain each allegation of the complaint.
If the Respondent has no knowledge of an allegation or insufficient
information as to its truthfulness, the answer shall so state. Absent a
showing of good cause to the contrary, failure to file an answer or
respond to any allegation shall constitute an admission. Motions to
extend the filing deadline shall be filed in accordance with
Sec. 2423.21.
(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. Prior to the beginning of
the hearing, the answer may be amended by the Respondent within 20 days
after the answer is filed. Thereafter, any requests to amend the
complaint or answer must be made by motion to the Office of
Administrative Law Judges.
(d) Office of Administrative Law Judges. Pleadings, motions,
conferences, hearings, and other matters throughout as specified in
subparts B, C, and D of this part shall be administered by the Office
of Administrative Law Judges, as appropriate. The Chief Administrative
Law Judge, or any Administrative Law Judge designated by the Chief
Administrative Law Judge, shall administer any matters properly
submitted to the Office of Administrative Law Judges. Throughout
subparts B, C, and D of this part, ``Administrative Law Judge'' or
``Judge'' refers to the Chief Administrative Law Judge or his or her
designee.
Sec. 2423.21 Motions procedure.
(a) General requirements. All motions, except those made during a
prehearing conference or hearing, shall be in writing. Motions for an
extension of time, postponement of a hearing, or any other procedural
ruling shall include a statement of the position of the other parties
on the motion. All written motions and responses in subparts B, C, or D
of this part shall satisfy the filing and service requirements of part
2429 of this subchapter.
(b) Motions made to the Administrative Law Judge. Prehearing
motions and motions made at the hearing shall be filed with the
Administrative Law Judge. Unless otherwise specified in subparts B or C
of this part, or otherwise directed or approved by the Administrative
Law Judge:
(1) Prehearing motions shall be filed at least 10 days prior to the
hearing, and responses shall be filed within 5 days after the date of
service of the motion;
(2) Responses to motions made during the hearing shall be filed
prior to the close of hearing;
(3) Posthearing motions shall be filed within 10 days after the
date the hearing closes, and responses shall be filed within 5 days
after the date of service of the motion; and
(4) Motions to correct the transcript shall be filed with the
Administrative Law Judge within 10 days after receipt of the
transcript, and responses shall be filed within 5 days after the date
of service of the motion.
(c) Post-transmission motions. After the case has been transmitted
to the Authority, motions shall be filed with the Authority. Responses
shall be filed within 5 days after the date of service of the motion.
(d) Interlocutory appeals. Motions for an interlocutory appeal of
any ruling and responses shall be filed in accordance with this section
and Sec. 2423.31(c).
Sec. 2423.22 Intervenors.
Motions for permission to intervene and responses shall be filed in
accordance with Sec. 2423.21. Such motions shall be granted upon a
showing that the outcome of the proceeding is likely to directly affect
the movant's rights or duties. Intervenors may participate only: on the
issues determined by the Administrative Law Judge to affect them; and
to the extent permitted by the Judge. Denial of such motions may be
appealed pursuant to Sec. 2423.21(d).
Sec. 2423.23 Prehearing disclosure.
Unless otherwise directed or approved by the Judge, the parties
shall exchange, in accordance with the service requirements of
Sec. 2429.27(b) of this subchapter, the following items at least 14
days prior to the hearing:
(a) Witnesses. Proposed witness lists, including a brief synopsis
of the expected testimony of each witness;
[[Page 40919]]
(b) Documents. Copies of documents, with an index, proposed to be
offered into evidence; and
(c) Theories. A brief statement of the theory of the case,
including relief sought, and any and all defenses to the allegations in
the complaint.
Sec. 2423.24 Powers and duties of the Administrative Law Judge during
prehearing proceedings.
(a) Prehearing procedures. The Administrative Law Judge shall
regulate the course and scheduling of prehearing matters, including
prehearing orders, conferences, disclosure, motions, and subpoena
requests.
(b) Changing date, time, or place of hearing. After issuance of the
complaint or any prehearing order, the Administrative Law Judge may, in
the Judge's discretion or upon motion by any party through the motions
procedure in Sec. 2423.21, change the date, time, or place of the
hearing.
(c) Prehearing order. (1) The Administrative Law Judge may, in the
Judge's discretion or upon motion by any party through the motions
procedure in Sec. 2423.21, issue a prehearing order confirming or
changing:
(i) The date, time, or place of the hearing;
(ii) The schedule for prehearing disclosure of witness lists and
documents intended to be offered into evidence at the hearing;
(iii) The date for submission of procedural and substantive
motions;
(iv) The date, time, and place of the prehearing conference; and
(v) Any other matter pertaining to prehearing or hearing
procedures.
(2) The prehearing order shall be served in accordance with
Sec. 2429.12 of this subchapter.
(d) Prehearing conferences. The Administrative Law Judge shall
conduct one or more prehearing conferences, either by telephone or in
person, at least 7 days prior to the hearing date, unless the
Administrative Law Judge determines that a prehearing conference would
serve no purpose and no party has moved for a prehearing conference in
accordance with Sec. 2423.21. If a prehearing conference is held, all
parties must participate in the prehearing conference and be prepared
to discuss, narrow, and resolve the issues set forth in the complaint
and answer, as well as any prehearing disclosure matters or disputes.
When necessary, the Administrative Law Judge shall prepare and file for
the record a written summary of actions taken at the conference.
Summaries of the conference shall be served on all parties in
accordance with Sec. 2429.12 of this subchapter. The following may also
be considered at the prehearing conference:
(1) Settlement of the case, either by the Judge conducting the
prehearing conference or pursuant to Sec. 2423.25;
(2) Admissions of fact, disclosure of contents and authenticity of
documents, and stipulations of fact;
(3) Objections to the introduction of evidence at the hearing,
including oral or written testimony, documents, papers, exhibits, or
other submissions proposed by a party;
(4) Subpoena requests or petitions to revoke subpoenas;
(5) Any matters subject to official notice;
(6) Outstanding motions; or
(7) Any other matter that may expedite the hearing or aid in the
disposition of the case.
(e) Sanctions. The Administrative Law Judge may, in the Judge's
discretion or upon motion by any party through the motions procedure in
Sec. 2423.21, impose sanctions upon the parties as necessary and
appropriate to ensure that a party's failure to fully comply with
subpart B or C of this part is not condoned. Such authority includes,
but is not limited to, the power to:
(1) Prohibit a party who fails to comply with any requirement of
subpart B or C of this part from, as appropriate, introducing evidence,
calling witnesses, raising objections to the introduction of evidence
or testimony of witnesses at the hearing, presenting a specific theory
of violation, seeking certain relief, or relying upon a particular
defense.
(2) Refuse to consider any submission that is not filed in
compliance with subparts B or C of this part.
Sec. 2423.25 Post complaint, prehearing settlements.
(a) Informal and formal settlements. Post complaint settlements may
be either informal or formal.
(1) Informal settlement agreements provide for withdrawal of the
complaint by the Regional Director and are not subject to approval by
or an order of the Authority. If the Respondent fails to perform its
obligations under the informal settlement agreement, the Regional
Director may reinstitute formal proceedings consistent with this
subpart.
(2) Formal settlement agreements are subject to approval by the
Authority, and include the parties' agreement to waive their right to a
hearing and acknowledgment that the Authority may issue an order
requiring the Respondent to take action appropriate to the terms of the
settlement. The formal settlement agreement shall also contain the
Respondent's consent to the Authority's application for the entry of a
decree by an appropriate federal court enforcing the Authority's order.
(b) Informal settlement procedure. If the Charging Party and the
Respondent enter into an informal settlement agreement that is accepted
by the Regional Director, the Regional Director shall withdraw the
complaint and approve the informal settlement agreement. If the
Charging Party fails or refuses to become a party to an informal
settlement agreement offered by the Respondent, and the Regional
Director concludes that the offered settlement will effectuate the
policies of the Federal Service Labor-Management Relations Statute, the
Regional Director shall enter into the agreement with the Respondent
and shall withdraw the complaint. The Charging Party then may obtain a
review of the Regional Director's action by filing an appeal with the
General Counsel as provided in subpart A of this part.
(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, in the
Judge's discretion or upon the request of any party, may assign a judge
or other appropriate official, who shall be other than the hearing
judge unless otherwise mutually agreed to by the parties, to conduct
negotiations for settlement.
(1) The settlement official shall convene and preside over
settlement conferences by telephone or in person.
(2) The settlement official may require that the representative for
each party be present at settlement conferences and that the parties or
agents with full settlement authority be present or available by
telephone.
[[Page 40920]]
(3) The settlement official shall not discuss any aspect of the
case with the hearing judge.
(4) No evidence regarding statements, conduct, offers of
settlement, and concessions of the parties made in proceedings before
the settlement official shall be admissible in any proceeding before
the Administrative Law Judge or Authority, except by stipulation of the
parties.
Sec. 2423.26 Stipulations of fact submissions.
(a) General. When all parties agree that no material issue of fact
exists, the parties may jointly submit a motion to the Administrative
Law Judge or Authority requesting consideration of the matter based
upon stipulations of fact. Briefs of the parties are required and must
be submitted within 30 days of the joint motion. Upon receipt of the
briefs, such motions shall be ruled upon expeditiously.
(b) Stipulations to the Administrative Law Judge. Where the
stipulation adequately addresses the appropriate material facts, the
Administrative Law Judge may grant the motion and decide the case
through stipulation.
(c) Stipulations to the Authority. Where the stipulation provides
an adequate basis for application of established precedent and a
decision by the Administrative Law Judge would not assist in the
resolution of the case, or in unusual circumstances, the Authority may
grant the motion and decide the case through stipulation.
(d) Decision based on stipulation. Where the motion is granted, the
Authority will adjudicate the case and determine whether the parties
have met their respective burdens based on the stipulation and the
briefs.
Sec. 2423.27 Summary judgment motions.
(a) Motions. Any party may move for a summary judgment in its favor
on any of the issues pleaded. Unless otherwise approved by the
Administrative Law Judge, such motion shall be made no later than 10
days prior to the hearing. The motion shall demonstrate that there is
no genuine issue of material fact and that the moving party is entitled
to a judgment as a matter of law. Such motions shall be supported by
documents, affidavits, applicable precedent, or other appropriate
materials.
(b) Responses. Responses must be filed within 5 days after the date
of service of the motion. Responses may not rest upon mere allegations
or denials but must show, by documents, affidavits, applicable
precedent, or other appropriate materials, that there is a genuine
issue to be determined at the hearing.
(c) Decision. 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. 2423.31(c) of this subchapter, and the
hearing shall proceed as necessary.
Sec. 2423.28 Subpoenas.
(a) When necessary. Where the parties are in agreement that the
appearance of witnesses or the production of documents is necessary,
and such witnesses agree to appear, no subpoena need be sought.
(b) Requests for subpoenas. A request for a subpoena by any person,
as defined in 5 U.S.C. 7103(a)(1), shall be in writing and filed with
the Office of Administrative Law Judges not less than 10 days prior to
the hearing, or with the Administrative Law Judge during the hearing.
Requests for subpoenas made less than 10 days prior to the hearing
shall be granted on sufficient explanation of why the request was not
timely filed.
(c) Subpoena procedures. The Office of Administrative Law Judges,
or any other employee of the Authority designated by the Authority, as
appropriate, shall furnish the requester the subpoenas sought, provided
the request is timely made. Requests for subpoenas may be made ex
parte. Completion of the specific information in the subpoena and the
service of the subpoena are the responsibility of the party on whose
behalf the subpoena was issued.
(d) Service of subpoena. A subpoena may be served by any person who
is at least 18 years old and who is not a party to the proceeding. The
person who served the subpoena must certify that he or she did so:
(1) By delivering it to the witness in person,
(2) By registered or certified mail, or
(3) By delivering the subpoena to a responsible person (named in
the document certifying the delivery) at the residence or place of
business (as appropriate) of the person for whom the subpoena was
intended. The subpoena shall show on its face the name and address of
the party on whose behalf the subpoena was issued.
(e)(1) Petition to revoke subpoena. Any person served with a
subpoena who does not intend to comply shall, within 5 days after the
date of service of the subpoena upon such person, petition in writing
to revoke the subpoena. A copy of any petition to revoke a subpoena
shall be served on the party on whose behalf the subpoena was issued.
Such petition to revoke, if made prior to the hearing, and a written
statement of service, shall be filed with the Office of Administrative
Law Judges for ruling. A petition to revoke a subpoena filed during the
hearing, and a written statement of service, shall be filed with the
Administrative Law Judge.
(2) The Administrative Law Judge, or any other employee of the
Authority designated by the Authority, as appropriate, shall revoke the
subpoena if the person or evidence, the production of which is
required, is not material and relevant to the matters under
investigation or in question in the proceedings, or the subpoena does
not describe with sufficient particularity the evidence the production
of which is required, or if for any other reason sufficient in law the
subpoena is invalid. The Administrative Law Judge, or any other
employee of the Authority designated by the Authority, as appropriate,
shall state the procedural or other ground for the ruling on the
petition to revoke. The petition to revoke, any answer thereto, and any
ruling thereon shall not become part of the official record except upon
the request of the party aggrieved by the ruling.
(f) Failure to comply. Upon the failure of any person to comply
with a subpoena issued and upon the request of the party on whose
behalf the subpoena was issued, the Solicitor of the Authority shall
institute proceedings on behalf of such party in the appropriate
district court for the enforcement thereof, unless to do so would be
inconsistent with law and the Federal Service Labor-Management
Relations Statute.
Sec. 2423.29 [Reserved]
Subpart C--Hearing Procedures
Sec. 2423.30 General rules.
(a) Open hearing. The hearing shall be open to the public unless
otherwise ordered by the Administrative Law Judge.
(b) Administrative Procedure Act. The hearing shall, to the extent
practicable, be conducted in accordance with 5 U.S.C. 554-557, and
other applicable provisions of the Administrative Procedure Act.
(c) Rights of parties. A party shall have the right to appear at
any hearing in person, by counsel, or by other
[[Page 40921]]
representative; to examine and cross-examine witnesses; to introduce
into the record documentary or other relevant evidence; and to submit
rebuttal evidence, except that the participation of any party shall be
limited to the extent prescribed by the Administrative Law Judge.
(d) Objections. Objections are oral or written complaints
concerning the conduct of a hearing. Any objection not raised to the
Administrative Law Judge shall be deemed waived.
(e) Oral argument. Any party shall be entitled, upon request, to a
reasonable period prior to the close of the hearing for oral argument,
which shall be included in the official transcript of the hearing.
(f) Official transcript. An official reporter shall make the only
official transcript of such proceedings. Copies of the transcript may
be examined in the appropriate Regional Office during normal working
hours. Parties desiring a copy of the transcript shall make
arrangements for a copy with the official hearing reporter.
Sec. 2423.31 Powers and duties of the Administrative Law Judge at the
hearing.
(a) Conduct of hearing. The Administrative Law Judge shall conduct
the hearing in a fair, impartial, and judicial manner, taking action as
needed to avoid unnecessary delay and maintain order during the
proceedings. The Administrative Law Judge may take any action necessary
to schedule, conduct, continue, control, and regulate the hearing,
including ruling on motions and taking official notice of material
facts when appropriate. No provision of these regulations shall be
construed to limit the powers of the Administrative Law Judge provided
by 5 U.S.C. 556, 557, and other applicable provisions of the
Administrative Procedure Act.
(b) Evidence. The Administrative Law Judge shall receive evidence
and inquire fully into the relevant and material facts concerning the
matters that are the subject of the hearing. The Administrative Law
Judge may exclude any evidence that is immaterial, irrelevant, unduly
repetitious, or customarily privileged. Rules of evidence shall not be
strictly followed.
(c) Interlocutory appeals. 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.
(1) The Judge shall grant the motion and certify the contested
ruling to the Authority if:
(i) The ruling involves an important question of law or policy
about which there is substantial ground for difference of opinion; and
(ii) Immediate review will materially advance completion of the
proceeding, or the denial of immediate review will cause undue harm to
a party or the public.
(2) If the motion is granted, the Judge or Authority may stay the
hearing during the pendency of the appeal. If the motion is denied,
exceptions to the contested ruling may be filed in accordance with
Sec. 2423.40 of this subchapter after the Judge issues a decision and
recommended order in the case.
(d) Bench decisions. Upon joint motion of the parties, the
Administrative Law Judge may issue an oral decision at the close of the
hearing when, in the Judge's discretion, the nature of the case so
warrants. By so moving, the parties waive their right to file
posthearing briefs with the Administrative Law Judge, pursuant to
Sec. 2423.33. If the decision is announced orally, it shall satisfy the
requirements of Sec. 2423.34(a)(1)-(5) and a copy thereof, excerpted
from the transcript, together with any supplementary matter the judge
may deem necessary to complete the decision, shall be transmitted to
the Authority, in accordance with Sec. 2423.34(b), and furnished to the
parties in accordance with Sec. 2429.12 of this subchapter.
(e) Settlements after the opening of the hearing. As set forth in
Sec. 2423.25(a), settlements may be either informal or formal.
(1) Informal settlement procedure: Judge's approval of withdrawal.
If the Charging Party and the Respondent enter into an informal
settlement agreement that is accepted by the Regional Director, the
Regional Director may request the Administrative Law Judge for
permission to withdraw the complaint and, having been granted such
permission, shall withdraw the complaint and approve the informal
settlement between the Charging Party and Respondent. If the Charging
Party fails or refuses to become a party to an informal settlement
agreement offered by the Respondent, and the Regional Director
concludes that the offered settlement will effectuate the policies of
the Federal Service Labor-Management Relations Statute, the Regional
Director shall enter into the agreement with the Respondent and shall,
if granted permission by the Administrative Law Judge, withdraw the
complaint. The Charging Party then may obtain a review of the Regional
Director's decision as provided in subpart A of this part.
(2) Formal settlement procedure: Judge's approval of settlement. If
the Charging Party and the Respondent enter into a formal settlement
agreement that is accepted by the Regional Director, the Regional
Director may request the Administrative Law Judge to approve such
formal settlement agreement, and upon such approval, to transmit the
agreement to the Authority for approval. If the Charging Party fails or
refuses to become a party to a formal settlement agreement offered by
the Respondent, and the Regional Director concludes that the offered
settlement will effectuate the policies of the Federal Service Labor-
Management Relations Statute, the agreement shall be between the
Respondent and the Regional Director. After the Charging Party is given
an opportunity to state on the record or in writing the reasons for
opposing the formal settlement, the Regional Director may request the
Administrative Law Judge to approve such formal settlement agreement,
and upon such approval, to transmit the agreement to the Authority for
approval.
Sec. 2423.32 Burden of proof before the Administrative Law Judge.
The General Counsel shall present the evidence in support of the
complaint and have the burden of proving the allegations of the
complaint by a preponderance of the evidence. The Respondent shall have
the burden of proving any affirmative defenses that it raises to the
allegations in the complaint.
Sec. 2423.33 Posthearing briefs.
Except when bench decisions are issued pursuant to Sec. 2423.31(d),
posthearing briefs may be filed with the Administrative Law Judge
within a time period set by the Judge, not to exceed 30 days from the
close of the hearing, unless otherwise directed by the judge, and shall
satisfy the filing and service requirements of part 2429 of this
subchapter. Reply briefs shall not be filed absent permission of the
Judge. Motions to extend the filing deadline or for permission to file
a reply brief shall be filed in accordance with Sec. 2423.21.
Sec. 2423.34 Decision and record.
(a) Recommended decision. Except when bench decisions are issued
pursuant to Sec. 2423.31(d), the Administrative Law Judge shall prepare
a written decision expeditiously in every case. All written decisions
shall be served in accordance with Sec. 2429.12 of this subchapter. The
decision shall set forth:
(1) A statement of the issues;
(2) Relevant findings of fact;
[[Page 40922]]
(3) Conclusions of law and reasons therefor;
(4) Credibility determinations as necessary; and
(5) A recommended disposition or order.
(b) Transmittal to Authority. The Judge shall transmit the decision
and record to the Authority. The record shall include the charge,
complaint, service sheet, answer, motions, rulings, orders, prehearing
conference summaries, stipulations, objections, depositions,
interrogatories, exhibits, documentary evidence, basis for any
sanctions ruling, official transcript of the hearing, briefs, and any
other filings or submissions made by the parties.
Secs. 2423.35-2423.39 [Reserved]
Subpart D--Post-Transmission and Exceptions to Authority Procedures
Sec. 2423.40 Exceptions; oppositions and cross-exceptions; oppositions
to cross-exceptions; waiver.
(a) Exceptions. Any exceptions to the Administrative Law Judge's
decision must be filed with the Authority within 25 days after the date
of service of the Judge's decision. Exceptions shall satisfy the filing
and service requirements of part 2429 of this subchapter. Exceptions
shall consist of the following:
(1) The specific findings, conclusions, determinations, rulings, or
recommendations being challenged; the grounds relied upon; and the
relief sought.
(2) Supporting arguments, which shall set forth, in order: all
relevant facts with specific citations to the record; the issues to be
addressed; and a separate argument for each issue, which shall include
a discussion of applicable law. Attachments to briefs shall be
separately paginated and indexed as necessary.
(3) Exceptions containing 25 or more pages shall include a table of
contents and a table of legal authorities cited.
(b) Oppositions and cross-exceptions. Unless otherwise directed or
approved by the Authority, oppositions to exceptions, cross-exceptions,
and oppositions to cross-exceptions may be filed with the Authority
within 20 days after the date of service of the exceptions or cross-
exceptions, respectively. Oppositions shall state the specific
exceptions being opposed. Oppositions and cross-exceptions shall be
subject to the same requirements as exceptions set out in paragraph (a)
of this section.
(c) Reply briefs. Reply briefs shall not be filed absent prior
permission of the Authority.
(d) Waiver. Any exception not specifically argued shall be deemed
to have been waived.
Sec. 2423.41 Action by the Authority; compliance with Authority
decisions and orders.
(a) Authority decision; no exceptions filed. In the absence of the
filing of exceptions within the time limits established in
Sec. 2423.40, the findings, conclusions, and recommendations in the
decision of the Administrative Law Judge shall, without precedential
significance, become the findings, conclusions, decision and order of
the Authority, and all objections and exceptions to the rulings and
decision of the Administrative Law Judge shall be deemed waived for all
purposes. Failure to comply with any filing requirement established in
Sec. 2423.40 may result in the information furnished being disregarded.
(b) Authority decision; exceptions filed. Whenever exceptions are
filed in accordance with Sec. 2423.40, the Authority shall issue a
decision affirming or reversing, in whole or in part, the decision of
the Administrative Law Judge or disposing of the matter as is otherwise
deemed appropriate.
(c) Authority's order. 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) Dismissal. Upon finding no violation, the Authority shall
dismiss the complaint.
(e) Report of compliance. After the Authority issues an order, the
Respondent shall, within the time specified in the order, provide to
the appropriate Regional Director a report regarding what compliance
actions have been taken. Upon determining that the Respondent has not
complied with the Authority's order, the Regional Director shall refer
the case to the Authority for enforcement or take other appropriate
action.
Sec. 2423.42 Backpay proceedings.
After the entry of an Authority order directing payment of backpay,
or the entry of a court decree enforcing such order, if it appears to
the Regional Director that a controversy exists between the Authority
and a Respondent regarding backpay that cannot be resolved without a
formal proceeding, the Regional Director may issue and serve on all
parties a notice of hearing before an Administrative Law Judge to
determine the backpay amount. The notice of hearing shall set forth the
specific backpay issues to be resolved. The Respondent shall, within 20
days after the service of a notice of hearing, file an answer in
accordance with Sec. 2423.20. After the issuance of a notice of
hearing, the procedures provided in subparts B, C, and D of this part
shall be followed as applicable.
Secs. 2423.43-2423.49 [Reserved]
PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS
2. The authority citation for part 2429 continues to read as
follows:
Authority: 5 U.S.C. 7134.
Sec. 2429.1 [Removed and Reserved]
3. Section 2429.1 is removed and reserved
4. Section 2429.7 is amended by revising the heading and by
removing the word ``subpena'' and substituting ``subpoena'' throughout
the section and by revising paragraphs (c) through (f) to read as
follows:
Sec. 2429.7 Subpoenas.
* * * * *
(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, or with the
Authority, in proceedings arising under parts 2424 and 2425 of this
subchapter, not less than 10 days prior to the hearing, or with the
appropriate presiding official(s) during the hearing. Requests for
subpoenas made less than 10 days prior to the opening of the hearing
shall be granted on sufficient explanation of why the request was not
timely filed.
(d) The Authority, General Counsel, Regional Director, Hearing
Officer, or any other employee of the Authority designated by the
Authority, as appropriate, shall furnish the requester the subpoenas
sought, provided the request is timely made. Requests for subpoenas may
be made ex parte. Completion of the specific information in the
subpoena and the service of the subpoena are the responsibility of the
party on whose behalf the subpoena was issued. A subpoena may be served
by any person who is at least 18 years old and who is not a party to
the proceeding. The person who served the subpoena must certify that he
or she did so:
(1) By delivering it to the witness in person,
(2) By registered or certified mail, or
(3) By delivering the subpoena to a responsible person (named in
the
[[Page 40923]]
document certifying the delivery) at the residence or place of business
(as appropriate) of the person for whom the subpoena was intended. The
subpoena shall show on its face the name and address of the party on
whose behalf the subpoena was issued. (e)(1) Any person served with a
subpoena who does not intend to comply, shall, within 5 days after the
date of service of the subpoena upon such person, petition in writing
to revoke the subpoena. A copy of any petition to revoke a subpoena
shall be served on the party on whose behalf the subpoena was issued.
Such petition to revoke, if made prior to the hearing, and a written
statement of service, shall be filed with the Regional Director in
proceedings arising under part 2422 of this subchapter, and with the
Authority, in proceedings arising under parts 2424 and 2425 of this
subchapter for ruling. A petition to revoke a subpoena filed during the
hearing, and a written statement of service, shall be filed with the
appropriate presiding official(s).
(2) The Authority, General Counsel, Regional Director, Hearing
Officer, or any other employee of the Authority designated by the
Authority, as appropriate, shall revoke the subpoena if the person or
evidence, the production of which is required, is not material and
relevant to the matters under investigation or in question in the
proceedings, or the subpoena does not describe with sufficient
particularity the evidence the production of which is required, or if
for any other reason sufficient in law the subpoena is invalid. The
Authority, General Counsel, Regional Director, Hearing Officer, or any
other employee of the Authority designated by the Authority, as
appropriate, shall state the procedural or other ground for the ruling
on the petition to revoke. The petition to revoke, any answer thereto,
and any ruling thereon shall not become part of the official record
except upon the request of the party aggrieved by the ruling.
(f) Upon the failure of any person to comply with a subpoena issued
and upon the request of the party on whose behalf the subpoena was
issued, the Solicitor of the Authority shall institute proceedings on
behalf of such party in the appropriate district court for the
enforcement thereof, unless to do so would be inconsistent with law and
the Federal Service Labor-Management Relations Statute.
5. Section 2429.11 is revised to read as follows:
Sec. 2429.11 Interlocutory appeals.
Except as set forth in part 2423, the Authority and the General
Counsel ordinarily will not consider interlocutory appeals.
6. Section 2429.12 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 2429.12 Service of process and papers by the Authority.
(a) Methods of service. Notices of hearings, decisions and orders
of Regional Directors, decisions and recommended orders of
Administrative Law Judges, decisions of the Authority, complaints,
amended complaints, withdrawals of complaints, written rulings on
motions, and all other papers required by this subchapter to be issued
by the Authority, the General Counsel, Regional Directors, Hearing
Officers, Administrative Law Judges, and Regional Directors when not
acting as a party under part 2423 of this subchapter, shall be served
personally, by first-class mail, by facsimile transmission, or by
certified mail. Where facsimile equipment is available, rulings on
motions; information pertaining to prehearing disclosure, conferences,
orders, or hearing dates, and locations; information pertaining to
subpoenas; and other similar or time sensitive matters may be served by
facsimile transmission.
* * * * *
(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 been mailed 5 days
prior to receipt. If the date of facsimile transmission is unclear, the
date of transmission shall be the date the facsimile transmission is
received. If the filing is by personal or commercial delivery, it shall
be considered filed on the date it is received by the Authority or the
officer or agent designated to receive such materials.
* * * * *
10. Section 2429.22 is revised to read as follows:
Sec. 2429.22 Additional time after service by mail.
Except as to the filing of an application for review of a Regional
Director's Decision and Order under Sec. 2422.31 of this subchapter,
whenever a party has the right or is required to do some act pursuant
to this subchapter within a prescribed period after service of a notice
or other paper upon such party, and the notice or paper is served on
such party by mail, 5 days shall be added to the prescribed period:
Provided, however, that 5 days shall not be added in any instance where
an extension of time has been granted.
[[Page 40924]]
11. Section 2429.24 is amended by revising paragraph (e) to read as
follows:
Sec. 2429.24 Place and method of filing; acknowledgment.
* * * * *
(e) All documents filed pursuant to this section shall be filed in
person, by commercial delivery, by first-class mail, or by certified
mail. Provided, however, that where facsimile equipment is available,
motions; information pertaining to prehearing disclosure, conferences,
orders, or hearing dates, times, and locations; information pertaining
to subpoenas; and other similar matters may be filed by facsimile
transmission, provided that the entire individual filing by the party
does not exceed 10 pages in total length, with normal margins and font
sizes.
* * * * *
12. Section 2429.25 is revised to read as follows:
Sec. 2429.25 Number of copies and paper size.
Unless otherwise provided by the Authority or the General Counsel,
or their designated representatives, as appropriate, or under this
subchapter, and with the exception of any prescribed forms, any
document or paper filed with the Authority, General Counsel,
Administrative Law Judge, Regional Director, or Hearing Officer, as
appropriate, under this subchapter, together with any enclosure filed
therewith, shall be submitted on 8\1/2\ x 11 inch size paper, using
normal margins and font sizes, in an original and four (4) legible
copies. Where facsimile filing is permitted pursuant to
Sec. 2429.24(e), one (1) legible copy, capable of reproduction, shall
be sufficient. A clean copy capable of being used as an original for
purposes such as further reproduction may be substituted for the
original.
13. Section 2429.27 is amended by revising paragraphs (b) and (d)
to read as follows:
Sec. 2429.27 Service; statement of service.
* * * * *
(b) Service of any document or paper under this subchapter, by any
party, including documents and papers served by one party on any other
party, shall be accomplished by certified mail, first-class mail,
commercial delivery, or in person. Where facsimile equipment is
available, service by facsimile of documents described in
Sec. 2429.24(e) is permissible.
* * * * *
(d) The date of service or date served shall be the day when the
matter served is deposited in the U.S. mail, delivered in person,
received from commercial delivery, or, in the case of facsimile
transmissions, the date transmitted.
Dated: July 28, 1997.
Solly Thomas,
Executive Director, Federal Labor Relations Authority.
[FR Doc. 97-20244 Filed 7-30-97; 8:45 am]
BILLING CODE 6727-01-P
